Seamans v. Jones, No. Cv91 039 24 16 (Sep. 28, 1992)

1992 Conn. Super. Ct. 9020

• Court: Connecticut Superior Court
• Decided: September 25, 1992
• Docket: No. CV91 039 24 16
• Status: Unpublished

Opinion

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] MEMORANDUM OF DECISION ON PLAINTIFF'S MOTION TO FILE FOURTH REVISED COMPLAINT On May 6, 1992, the plaintiffs filed a third revised complaint in one count alleging negligence for injuries sustained as a result of an automobile accident. That complaint did not contain a count seeking double or treble damages under General Statutes 14-295. The third revised complaint became the operative complaint pursuant to defendants' request dated July 10, 1991 to revise the second and third counts seeking to delete recklessness as a cause of action and the damages resulting therefrom, when the CT Page 9021 plaintiffs failed to object to the request to revise in a timely manner.

On June 2, 1992, the defendants answered the third revised complaint and filed a special defense, to which plaintiffs replied. On August 14, 1992, the plaintiffs filed a motion for permission to file a fourth revised complaint, which in effect added a second count again alleging statutory violations for which they seek double or treble damages pursuant to General Statutes 13-295.

The defendants now object to plaintiffs' motion on the ground that it would be improper for the court to allow the plaintiffs to add this count when it had previously been revised out.

In paragraphs two and three of the defendant's request to revise dated July 10, 1992, the defendants sought to delete counts two and three of the plaintiffs' complaint on the ground that the plaintiffs had failed to allege sufficient facts to support an action for recklessness. These claims of the defendants regarding the legal sufficiency of the facts alleged in the complaint would have been more properly raised by way of a motion to strike rather than a request to revise. Practice Book 152.

A party may amend his pleadings or other parts of the record or proceedings . . . by order of the court . . . or by filing a request for leave to file the amendment with the amendment appended. Practice Book 176. In Lo Sacco v. Young, 2 Conn. App. 6 (1988) our Appellate Court stated at pages 7-8:

Factors to be considered in passing on a motion to amend are the length of delay, fairness to the opposing parties and the negligence, if any, of the party offering the amendment . . . . The motion to amend is addressed to the trial court's discretion which may be exercised to restrain the amendment of pleadings so far as necessary to prevent unreasonable delay of the trial . . .

Since it appears that the proposed amendment will not cause any unreasonable delay or prejudice, and that the substantive basis of defendants' objection was not properly CT Page 9022 addressed by their unopposed motion to revise, the plaintiffs' motion to file Fourth Revised Complaint is granted.

Wagner, J.