Cognata v. Gyn-Ob Specialists, No. Cv86 23 35 09 (May 17, 1991)

Connecticut Superior Court

Cognata v. Gyn-Ob Specialists, No. Cv86 23 35 09 (May 17, 1991)

1991 Conn. Super. Ct. 4235

Connecticut Superior Court·Decided May 17, 1991·No. No. CV86 23 35 09·Unpublished

Opinion

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] MEMORANDUM OF DECISION This case is a medical malpractice case that was dismissed on June 17, 1988. A motion to reopen the Judgment of Dismissal was filed on October 6, 1988 and granted on March 4, 1991. The CT Page 4236 defendants Motion to Reargue and Motion to Vacate Order Opening Judgment of Dismissal was denied thereafter on March 18, 1991. The defendants requested to file an amended answer and special defense on April 3, 1991.

In response, the plaintiffs have filed a Motion to Strike the defendants' Second Special Defense which asserts that "the court lacks jurisdiction over the above entitled matter because the plaintiffs failed to reopen the judgment of dismissal within the four month period."

The defendants' challenge as set forth in its second special defense is in effect to the court's jurisdiction. This issue is best raised by way of a motion to dismiss which looks to the face of the record. Upson v. State, 190 Conn. 622, 624 (1983). See also Daley v. Hartford, 215 Conn. 14, 27-31 (1990); Stephenson, Conn. Civil Procedure 117h. (2 ED 1982). This is clearly a question of law to be brought before the court and not a question of fact for the jury. See Wetmore v. Wryson,32 Conn. Sup. 249 (1974) (party's plea of abatement raising issue of jurisdiction not entitled to be determined in a jury trial).

As such, an allegation challenging jurisdiction has no place as a special defense. It is therefore stricken.

KATZ, JUDGE

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[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] MEMORANDUM OF DECISION This case is a medical malpractice case that was dismissed on June 17, 1988. A motion to reopen the Judgment of Dismissal was filed on October 6, 1988 and granted on March 4, 1991. The CT Page 4236 defendants Motion to Reargue and Motion to Vacate Order Opening Judgment of Dismissal was denied thereafter on March 18, 1991. The defendants requested to file an amended answer and special defense on April 3, 1991.

In response, the plaintiffs have filed a Motion to Strike the defendants' Second Special Defense which asserts that "the court lacks jurisdiction over the above entitled matter because the plaintiffs failed to reopen the judgment of dismissal within the four month period."

The defendants' challenge as set forth in its second special defense is in effect to the court's jurisdiction. This issue is best raised by way of a motion to dismiss which looks to the face of the record. Upson v. State, 190 Conn. 622, 624 (1983). See also Daley v. Hartford, 215 Conn. 14, 27-31 (1990); Stephenson, Conn. Civil Procedure 117h. (2 ED 1982). This is clearly a question of law to be brought before the court and not a question of fact for the jury. See Wetmore v. Wryson,32 Conn. Sup. 249 (1974) (party's plea of abatement raising issue of jurisdiction not entitled to be determined in a jury trial).

As such, an allegation challenging jurisdiction has no place as a special defense. It is therefore stricken.

KATZ, JUDGE

Cognata v. Gyn-Ob Specialists, No. Cv86 23 35 09 (May 17, 1991), 1991 Conn. Super. Ct. 4235 (Colo. Ct. App. 1991).

Pincite

1991 Conn. Super. Ct. 4235 (Cognata v. Gyn-Ob Specialists, No. Cv86 23 35 09 (May 17, 1991)) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

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