Abrahams v. Photos

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DAVID A. ABRAHAMS v. ROBERT PHOTOS ET AL.
(AC 47139)
Alvord, Seeley and Norcott, Js.

Syllabus

The plaintiff appealed from the trial court’s judgment granting the defendant
attorney’s second motion for summary judgment on the plaintiff’s complaint
alleging, inter alia, legal malpractice. The plaintiff claimed, inter alia, that
the court improperly rendered summary judgment for the defendant despite
the existence of genuine issues of material fact. Held:

The trial court properly granted the defendant’s second motion for summary
judgment, as the defendant made a showing, by way of the plaintiff’s deposi-
tion testimony in which he stated multiple times that the defendant was
not his attorney, that there was a lack of a genuine issue of material fact
as to the nonexistence of an attorney-client relationship between the plaintiff
and the defendant, which vitiated every claim in the operative complaint,
and the plaintiff subsequently failed to satisfy his burden of presenting
evidence demonstrating the existence of a genuine issue of material fact,
thereby entitling the defendant to judgment as a matter of law.

The trial court properly considered the defendant’s second motion for sum-
mary judgment because it was not barred by the doctrines of res judicata
or collateral estoppel, as the court’s denial of the defendant’s first motion
for summary judgment was not a final judgment, the defendant was not
otherwise precluded from filing his second motion, and it was within the
trial court’s discretion to consider the renewed motion for summary judg-
ment that had previously been denied where additional or new evidence
had been submitted that was not before the court in ruling upon the earlier
motion for summary judgment.

The trial court did not improperly fail to enter a default judgment against
the defendant for filing his second motion for summary judgment in an
untimely manner in violation of the order of pleadings set forth in the
rule of practice (§ 10-6), as the defendant’s filing of his second motion for
summary judgment, which was not a pleading, was not procedurally untimely
pursuant to the rule of practice (§ 17-44) because no scheduling order existed
at that time and the case was not assigned for trial at the time that that
motion was filed.
Argued April 22—officially released July 22, 2025

Procedural History

Action to recover damages for, inter alia, the named
defendant’s alleged legal malpractice, and for other
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relief, brought to the Superior Court in the judicial dis-
trict of Fairfield, where the court, Cordani, J., denied
the named defendant’s motion for summary judgment;
thereafter, the defendant Cheryl Anderson was defaulted
for failure to appear; subsequently, the court, Saadi,
J., granted the named defendant’s second motion for
summary judgment and rendered judgment thereon,
from which the plaintiff appealed to this court. Affirmed.
David A. Abrahams, self-represented, the appellant
(plaintiff).
Michael S. Tripicco, with whom, on the brief, was
Cristin E. Sheehan, for the appellee (named defendant).
Opinion

NORCOTT, J. The self-represented plaintiff, David A.
Abrahams, appeals from the summary judgment ren-
dered by the trial court in favor of the defendant Attor-
ney Robert Photos in this action arising from an alleged
attorney-client relationship between the plaintiff and
the defendant.1 On appeal, the plaintiff claims that the
court improperly (1) rendered summary judgment in
favor of the defendant despite the existence of genuine
issues of material fact, (2) failed to determine that a
second motion for summary judgment filed by the
defendant, which is the operative motion at issue in
this appeal, was barred by the doctrines of res judicata
or collateral estoppel, and (3) failed to enter a default
judgment against the defendant for filing his second
motion for summary judgment prior to filing his answer
to the revised complaint.2 We disagree and, accordingly,
affirm the judgment of the trial court.
1
The complaint also named as a defendant Cheryl Anderson, who did not
participate in this appeal. The plaintiff’s motion to default Cheryl Anderson
for failure to appear was granted by the court, Hon. Dale W. Radcliffe, judge
trial referee. We refer in this opinion to Robert Photos as the defendant.
2
See Practice Book § 61-3 (‘‘[a] judgment disposing of only a part of a
complaint . . . is a final judgment if that judgment disposes of all causes
of action in that complaint . . . brought . . . against a particular party’’).
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The following facts are not in dispute. In 2001, the
plaintiff was convicted, following a jury trial, of various
crimes, as set forth in State v. Abrahams, 79 Conn. App.
767, 768–69, 831 A.2d 299 (2003). See id., 783 (affirming
judgment of conviction). He was sentenced to a total
effective term of fifty-one years of incarceration fol-
lowed by nine years of special parole.3
On April 18, 2016, David Anderson, the son of the
plaintiff and Cheryl Anderson, was driving a car in
Bridgeport when he was struck and killed when another
vehicle that was being pursued by the police collided
with his vehicle.4 In her capacity as the administrator of
David’s estate, Cheryl brought a wrongful death action
against the city of Bridgeport and the Bridgeport Police
Department. In a final accounting, David’s estate was
valued at $100,000, which included $50,000 from a set-
tlement in the wrongful death action and $50,000 from
a settlement of an automobile insurance claim related
to the accident. After the deduction of fees, costs, and
liens from the final accounting of David’s estate, the
plaintiff and Cheryl each received approximately
$13,152 in settlement payments.
In 2019, the plaintiff commenced the present action.
In his revised complaint, he alleged fraud, ‘‘collusion,’’
3
Specifically, the plaintiff was convicted of attempt to commit murder in
violation of General Statutes §§ 53a-49 and 53a-54a (a), assault in the first
degree in violation of General Statutes § 53a-59 (a) (1), and criminal posses-
sion of a firearm in violation of General Statutes (Supp. 2000) § 53a-217.
See State v. Abrahams, supra, 79 Conn. App. 768. On those charges, he was
sentenced to forty-one years of incarceration, and his sentence was enhanced
by five years pursuant to General Statutes § 53-202k. During a concurrent
proceeding, the court found the plaintiff guilty of violation of probation in
violation of General Statutes (Supp. 2000) § 53a-32 and sentenced him to
an additional five years of incarceration, which was to be served consecutive
to all other sentences. See Abrahams v. Commissioner of Correction,
Docket No. 3:10cv519 (MRK), 2010 WL 5093113, *1 (D. Conn. December
8, 2010).
4
In the interest of clarity and simplicity, in this opinion we refer to Cheryl
Anderson and David Anderson by their first names.
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breach of trust, negligence, ‘‘deliberate interference of
rights,’’ legal malpractice, breach of contract, and fraud-
ulent misrepresentation. The crux of the allegations in
the revised complaint is that the defendant promised
to represent the plaintiff regarding a sentence modifica-
tion and promised to secure a large settlement in the
wrongful death action for the plaintiff if he agreed to
not be a party to that action, but the defendant did not
pursue a sentence modification on the plaintiff’s behalf
nor did he keep the plaintiff apprised of the status of
the wrongful death action, failing even to seek his input
prior to the settlement of that action.5
The defendant filed a motion for summary judgment
in 2020, which the court, Cordani, J., denied. After
5
Specifically, the plaintiff alleged that the defendant (1) promised and
failed to represent him regarding a sentence modification, thereby inducing
him to give up his ‘‘right’’ to be named as a party in the wrongful death
action, then settled that action for nowhere near the ‘‘nice amount . . . to
start his life over’’ that was promised to him (fraud), (2) colluded with
Cheryl to deprive him of his ‘‘right’’ to be a party to the wrongful death
action, then settled that action without his knowledge or input (‘‘collusion’’),
(3) failed to keep him updated concerning the wrongful death action and
failed to represent him in a sentence modification despite having promised
to do so (breach of trust), (4) owed him a duty of reasonable care to keep
him updated on the status of the wrongful death action and to represent
him concerning a sentence modification, but failed to do so, and used
deception to induce him to give up his ‘‘right’’ to be named as a party in
the wrongful death action (negligence), (5) induced him with promises of big
settlements in the wrongful death action and with a sentence modification
to give up his ‘‘right’’ to be included as a party in the wrongful death action
(‘‘deliberate interference of rights’’), (6) promised him that if he agreed to
not be a party to the wrongful death action then the Department of Correction
(department) would not take one half of his share of the settlement and
promised to represent him in a sentence modification proceeding but broke
his promises (legal malpractice), (7) promised and failed to represent him
concerning a sentence modification wherein his sentence would be reduced
to at least twenty-five years (breach of contract), and (8) informed the
plaintiff that he would not be a party to the wrongful death action in order
to ensure that the department would not take one half of his share of the
settlement of that action, promised to represent him concerning a sentence
modification, and promised to reduce his sentence to at least twenty-five
years as a result of ‘‘connections and favors owed to him,’’ but failed to
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completing a deposition of the plaintiff, the defendant
filed a second motion for summary judgment in Febru-
ary, 2023. In that motion, the defendant argued that he
was entitled to judgment as a matter of law because he
never represented the plaintiff, noting that the plaintiff
acknowledged numerous times in his deposition testi-
mony that the defendant had never been his attorney.
The plaintiff filed a memorandum in opposition, arguing
that the defendant’s second motion for summary judg-
ment should be denied as untimely because it was not
filed in accordance with the order of pleadings set forth
in Practice Book § 10-66 and that the defendant was
precluded by the doctrines of res judicata and/or collat-
eral estoppel from filing a second motion for summary
judgment.
Following a hearing, the court, Saadi, J., rendered
summary judgment in favor of the defendant on the
entirety of the revised complaint as alleged against him.
The court determined that the plaintiff’s procedural
objections were without merit and further concluded
that there were no genuine issues of material fact as
to the absence of an attorney-client relationship between
the plaintiff and the defendant concerning the wrongful
death action and the sentence modification and, there-
fore, the defendant was entitled to judgment as a matter
of law. This appeal followed. Additional facts and proce-
dural history will be set forth as necessary.
I
The plaintiff first claims that the court improperly
rendered summary judgment despite the existence of
genuine issues of material fact concerning whether
there was an attorney-client relationship between the
plaintiff and the defendant as to (a) the wrongful death
keep his promises (fraudulent misrepresentation). (Internal quotation
marks omitted.)
6
See footnote 13 of this opinion.
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action and (b) a sentence modification.7 We are not
persuaded.
We begin with the following relevant principles of
law, including our standard of review. Practice Book
§ 17-49 provides that ‘‘[t]he judgment sought shall be
rendered forthwith if the pleadings, affidavits and any
other proof submitted show that there is no genuine
issue as to any material fact and that the moving party
is entitled to judgment as a matter of law.’’

‘‘A party moving for summary judgment is held to a
strict standard. . . . To satisfy his burden the movant
must make a showing that it is quite clear what the
truth is, and that excludes any real doubt as to the
existence of any genuine issue of material fact. . . .
As the burden of proof is on the movant, the evidence
must be viewed in the light most favorable to the oppo-
nent. . . . Once the moving party has met its burden,
however, the opposing party must present evidence that
demonstrates the existence of some disputed factual
issue. . . . It is not enough, however, for the opposing
party merely to assert the existence of such a disputed
issue. . . . Our review of the trial court’s decision to
grant [a] motion for summary judgment is plenary.’’
(Citation omitted; internal quotation marks omitted.)
7
The defendant contends in his appellate brief that certain counts of the
revised complaint were impliedly stricken. The defendant had filed a motion
to strike on February 2, 2022, prior to the filing of his second motion for
summary judgment. At the hearing on that motion, the court, Hon. Dale W.
Radcliffe, judge trial referee, stated: ‘‘I’m going to deny the—the motion to
strike. I’m going to specifically indicate, however, that . . . the only causes
of action that I see as pled in this complaint [are] [n]egligent misrepresenta-
tion, fraudulent misrepresentation, legal malpractice, and negligence, and
breach of fiduciary duty . . . .’’ In ruling on the defendant’s second motion
for summary judgment, the court, Saadi, J., addressed the eight counts
alleged in the revised complaint in the context of a motion for summary
judgment. Accordingly, we will address the court’s granting of the defen-
dant’s second motion for summary judgment as to all eight counts as enumer-
ated in the plaintiff’s revised complaint.
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Ferri v. Powell-Ferri, 317 Conn. 223, 228, 116 A.3d
297 (2015).
‘‘An attorney-client relationship is established when
the advice and assistance of the attorney is sought and
received in matters pertinent to his profession. . . .
Evidence of either a retainer agreement or a contract
between the parties is relevant to the determination
of its existence.’’ (Citations omitted; internal quotation
marks omitted.) DiStefano v. Milardo, 276 Conn. 416,
422, 886 A.2d 415 (2005).
A
As to the wrongful death action, the plaintiff argues
that the court took his deposition testimony out of
context, overlooked evidence, and improperly deter-
mined that he failed to present concrete evidence creat-
ing a genuine issue of material fact as to whether an
attorney-client relationship existed. We disagree.
The defendant demonstrated that there were no genu-
ine issues of material fact that no attorney-client rela-
tionship existed between him and the plaintiff concern-
ing the wrongful death action. The court did not, as the
plaintiff argues, take his deposition testimony out of
context. Rather, it is quite clear considering the plain-
tiff’s deposition as a whole that the plaintiff testified
multiple times that the defendant was not his attorney.
Specifically, when asked whether he knew ‘‘for a fact
that [the defendant] was not representing [him] on the
wrongful death suit,’’ the plaintiff answered that the
defendant ‘‘was representing Cheryl on the wrongful
death suit because [the plaintiff] wasn’t a party to it.’’
When asked, ‘‘[a]nd you know if someone is your attor-
ney, you usually sign a document saying they’re your
attorney,’’ the plaintiff responded in the affirmative.
Additionally, the plaintiff stated that he did not give the
defendant any money nor did he sign any documents
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and further stated that the defendant ‘‘wasn’t my attor-
ney, per se. I didn’t sign any retainer agreement with
him.’’ When asked ‘‘[d]o you recall exactly when that
was that you realized that [the defendant] did not repre-
sent you or was not your attorney,’’ the plaintiff
responded, ‘‘I mean he was never my attorney . . . .’’
After the defendant made a showing, by way of the
plaintiff’s statements in his deposition testimony, that
there was no real doubt that an attorney-client relation-
ship did not exist between the plaintiff and the defen-
dant, the plaintiff then failed to satisfy his burden of
presenting evidence demonstrating the existence of a
genuine issue of material fact. Additionally, as noted
by the trial court, the plaintiff filed multiple motions
to intervene in the wrongful death action, which the
court denied, thereby further demonstrating his knowl-
edge through filings made as a self-represented litigant
that he was not a party to that action.8 For the foregoing
reasons, we conclude that the court properly deter-
mined that no genuine issues of material fact existed
that there was no attorney-client relationship between
the plaintiff and the defendant for the purposes of the
wrongful death action.

B

Concerning the sentence modification, the plaintiff
argues that the court improperly determined that no
genuine issues of material fact existed concerning the
absence of an attorney-client relationship and, in so
concluding, overlooked portions of his deposition testi-
mony and improperly determined that he failed to pres-
ent concrete evidence creating a genuine issue of mate-
rial fact. We disagree.
8
See, e.g., Village Mortgage Co. v. Garbus, 201 Conn. App. 845, 862 n.15,
244 A.3d 952 (2020) (it is well established that court may take judicial notice
of file in another case regardless of whether it is between same parties).
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During his deposition, the plaintiff stated that he
never signed a retainer agreement with the defendant
but that the defendant discussed his criminal case with
him and the defendant stated that he would get back
to the plaintiff in thirty days but failed to do so. The
plaintiff explained that the defendant was David’s attor-
ney on a criminal matter that ended in February, 2016,
when the charges against David were ‘‘dropped.’’ When
the plaintiff was asked during his deposition, ‘‘[s]o
you’re alleging that [the defendant] told you specifically
that he’ll handle your sentence modification,’’ he
answered, ‘‘[r]ight. Well, that’s what he told David. He
told David, ‘do not worry about your father. I’ll take
care of it. Get your life back together. We’ll deal with
that later. Get your life back together.’ ’’
The court reasoned in its decision that ‘‘[t]he defen-
dant argues that the informal statements to comfort the
plaintiff’s son David, the gathering of information from
the plaintiff to analyze the merits of applying for a
sentence modification and then failing to inform the
plaintiff that the defendant would not represent him
does not establish an attorney-client relationship. While
the defendant could certainly have avoided any confu-
sion by informing the plaintiff that he was not going to
represent him for the purpose of seeking a sentence
modification, the failure to do so does not transform a
noncommittal conversation about possible representa-
tion into an attorney-client relationship.’’
Whether a noncommittal conversation about possible
legal representation would be sufficient to create an
attorney-client relationship is not an issue we need to
address in the present case because the plaintiff made
clear in his deposition that no such relationship existed.
It bears repeating that, when he was asked, ‘‘[d]o you
recall exactly when that was that you realized that [the
defendant] did not represent you or was not your attor-
ney,’’ the plaintiff responded, ‘‘I mean he was never my
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attorney . . . .’’ Additionally, the plaintiff’s statements
concerning what David allegedly told the plaintiff do
not create a genuine issue of material fact. The court
could not properly consider them because they were
hearsay.9 See Walker v. Housing Authority, 148 Conn.
App. 591, 600, 85 A.3d 1230 (2014) (‘‘when deciding a
motion for summary judgment a court may not consider
material that would be hearsay at trial’’ (internal quota-
tion marks omitted)). Accordingly, we conclude that
no genuine issue of material fact existed that the parties
had no attorney-client relationship for the purpose of
a sentence modification.10
9
Section 8-1 (3) of the Connecticut Code of Evidence defines ‘‘hearsay’’
as ‘‘a statement, other than one made by the declarant while testifying at
the proceeding, offered in evidence to establish the truth of the matter
asserted.’’ None of the hearsay exceptions applies. See Conn. Code Evid.
§§ 8-2 through 8-10.
10
The court reasoned, in the alternative, that, even if it were assumed,
for the sake of argument, that there were genuine issues of material fact
regarding the existence of an attorney-client relationship as to the sentence
modification, the defendant, nonetheless, was entitled to judgment as a
matter of law because ‘‘the plaintiff has not plead[ed] any facts demonstra-
ting he suffered any prejudice, or compensable loss or harm due to the
defendant not filing for sentence modification. In his deposition the plaintiff
acknowledged he was not prevented from engaging other counsel and filing
for a sentence modification at any time in the several years since he met
with the defendant and that he has chosen not to do so. . . . Finally, during
the July 27, 2023 hearing the plaintiff acknowledged that at the time he met
with the defendant in April, 2016, he had not yet served the required minimum
of his fifty-one year sentence pursuant to [General Statutes] § 53a-35a.’’
(Citations omitted.)
We agree with the court’s alternative reasoning and note that there exist
no genuine issues of material fact that the plaintiff has not suffered any
harm as a result of the defendant not pursuing a sentence modification on
his behalf because the plaintiff will not have served the twenty-five year
mandatory minimum of his 2001 sentence until 2026. Pursuant to § 53a-35a,
the plaintiff’s mandatory minimum sentence for each of his consecutive
sentences for attempted murder and assault is ten years, which amounts
to twenty years, plus the five year sentence enhancement, which, pursuant
to General Statutes § 53-202k, ‘‘shall not be suspended or reduced . . . .’’
Pursuant to General Statutes § 53a-39 (d), the statutory provisions permitting
a modification of a sentence upon a finding of good cause ‘‘shall not apply
to any portion of a sentence imposed that is a mandatory minimum sentence
for an offense which may not be suspended or reduced by the court.’’
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In conclusion, and in the exercise of our plenary
review over the interpretation of pleadings,11 we note
that the existence of an attorney-client relationship is
an integral component of each claim alleged in the
revised complaint. Accordingly, the lack of a genuine
issue of material fact as to the nonexistence of an attor-
ney-client relationship between the plaintiff and the
defendant as to both the wrongful death action and the
sentence modification vitiates the basis for every claim
alleged in the revised complaint against the defendant,
thereby entitling the defendant to judgment as a matter
of law. On the basis of the foregoing, we conclude
that the court properly granted the defendant’s second
motion for summary judgment as to the entirety of the
revised complaint alleged against the defendant.
II
The plaintiff next claims that the court ‘‘erred by
granting the defendant’s second motion for summary
judgment in which the defendant litigated the same
set of facts as his first motion for summary judgment,
violating the well established doctrines of res judicata/
collateral estoppel.’’ We disagree.
We begin by setting forth the following relevant legal
principles and standard of review. ‘‘The doctrines of
collateral estoppel and res judicata, also known as issue
preclusion and claim preclusion, respectively, have
been described as related ideas on a continuum. . . .
Both doctrines share common purposes, namely, to
protect the finality of judicial determinations, [to] con-
serve the time of the court, and [to] prevent wasteful
litigation . . . . Despite their conceptual closeness
. . . the two doctrines are regarded as distinct. . . .
11
See, e.g., Carpenter v. Daar, 346 Conn. 80, 128, 287 A.3d 1027 (2023)
(‘‘The interpretation of pleadings is always a question of law for the court
. . . . Our review of the trial court’s interpretation of the pleadings therefore
is plenary.’’ (Internal quotation marks omitted.)).
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The doctrine of collateral estoppel prevents a party
from relitigating issues and facts [that have been] actu-
ally and necessarily determined in an earlier proceeding
between the same parties or those in privity with them
[on] a different claim . . . whereas the doctrine of res
judicata prevents a party from relitigating the same
claim following a final judgment on the merits, regard-
less of what additional or different evidence or legal
theories might be advanced in support of it.’’ (Citations
omitted; emphasis omitted; internal quotation marks
omitted.) Solon v. Slater, 345 Conn. 794, 810, 287 A.3d
574 (2023). ‘‘[T]he applicability of res judicata or collat-
eral estoppel presents a question of law over which
we employ plenary review.’’ (Internal quotation marks
omitted.) Rockwell v. Rockwell, 196 Conn. App. 763, 769,
230 A.3d 889 (2020).
The plaintiff’s claim is without merit because ‘‘res
judicata and collateral estoppel depend on the existence
of a valid final judgment . . . .’’ Corey v. Avco-Lycom-
ing Division, 163 Conn. 309, 317, 307 A.2d 155 (1972),
cert. denied, 409 U.S. 1116, 93 S. Ct. 903, 34 L. Ed. 2d
699 (1973). In the present case, the court’s denial of
the defendant’s first motion for summary judgment was
not a final judgment.12 See Brown & Brown, Inc. v.
Blumenthal, 288 Conn. 646, 653, 954 A.2d 816 (2008)
(‘‘denial of a motion for summary judgment does not
result in a judgment’’); see also CFM of Connecticut,
12
None of the exceptions to the general rule that a denial of a motion for
summary judgment is not a final judgment applies in the present case. See,
e.g., Hopkins v. O’Connor, 282 Conn. 821, 828, 925 A.2d 1030 (2007) (denial
of motion for summary judgment is immediately appealable when motion
is predicated upon colorable claim of absolute immunity based on sovereign
immunity); Singhaviroj v. Board of Education, 124 Conn. App. 228, 236, 4
A.3d 851 (2010) (denial of motion for summary judgment is immediately
appealable when denial is due to doctrine of collateral estoppel or res
judicata); see also State v. Curcio, 191 Conn. 27, 31, 463 A.2d 566 (1983)
(establishing two circumstances in which otherwise interlocutory order is
appealable pursuant to General Statutes § 52-263).
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Inc. v. Chowdhury, 239 Conn. 375, 398, 685 A.2d 1108
(1996) (critical factor in determining whether judicial
determination constitutes final judgment for purposes
of res judicata is whether it constitutes final judgment
for purposes of appeal), overruled on other grounds by
State v. Salmon, 250 Conn. 147, 735 A.2d 333 (1999).
Accordingly, neither the doctrine of collateral estoppel
nor the doctrine of res judicata is applicable.
The defendant was not otherwise precluded from filing
his second motion for summary judgment because
‘‘[t]here is nothing in the rules of practice or in our case
law . . . that specifically restricts a party to one sum-
mary judgment motion.’’ Fiaschetti v. Nash Engi-
neering Co., 47 Conn. App. 443, 445–46, 706 A.2d 476,
cert. denied, 244 Conn. 906, 714 A.2d 1 (1998). Rather,
‘‘it is within the trial court’s discretion to consider a
renewed motion for summary judgment that has pre-
viously been denied where . . . additional or new evi-
dence has been submitted which was not before the
court in ruling upon the earlier motion for summary
judgment.’’ Mac’s Car City, Inc. v. American National
Bank, 205 Conn. 255, 262, 532 A.2d 1302 (1987). We
discern no reason why the defendant’s second motion
for summary judgment, to which the new evidence of
the plaintiff’s deposition was appended, should not have
been heard by the trial court and, accordingly, conclude
that the court properly considered it.
III
The plaintiff last claims that the court improperly
failed to enter a default judgment against the defendant
for filing his second motion for summary judgment in
an untimely manner in violation of the order of plead-
ings set forth in Practice Book § 10-6 by filing it before
answering the revised complaint. He also contends that
he was prejudiced by the defendant’s filing of his answer
to the revised complaint after the hearing on the second
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motion for summary judgment because his answer cre-
ated genuine issues of material fact. We disagree.
The plaintiff’s argument regarding the order of plead-
ings is rooted in a misinterpretation of our procedural
practices. It is true that pleadings, generally, are not to
be filed outside of the order specified in Practice Book
§ 10-6.13 See Reale v. Rhode Island, 192 Conn. App. 759,
764, 218 A.3d 723, cert. denied, 334 Conn. 901, 219 A.3d
798 (2019). Although that section sets forth the order
of pleadings, it does not dictate the proper time frame
for the filing of a motion for summary judgment because
such a motion, axiomatically, is not a pleading. Rather,
Practice Book § 17-44 establishes the proper timing for
the filing of a motion for summary judgment by provid-
ing in relevant part that ‘‘[i]n any action . . . any party
may move for a summary judgment as to any cause of
action or defense as a matter of right at any time if
no scheduling order exists and the case has not been
assigned for trial. . . .’’ (Emphasis added.) The defen-
dant’s filing of his second motion for summary judgment
was not procedurally untimely because no scheduling
order existed at that time and the case was not assigned
for trial at the time that that motion was filed.
Although Practice Book § 17-44 allows for the filing
of a motion for summary judgment ‘‘at any time,’’ this
was not always the rule. Historically, prior to October
1, 1992, Practice Book § 379, which was the precursor
13
Practice Book § 10-6 provides that ‘‘[t]he order of pleading shall be
as follows:
‘‘(1) The plaintiff’s complaint.
‘‘(2) The defendant’s motion to dismiss the complaint.
‘‘(3) The defendant’s request to revise the complaint.
‘‘(4) The defendant’s motion to strike the complaint.
‘‘(5) The defendant’s answer (including any special defenses) to the com-
plaint.
‘‘(6) The plaintiff’s request to revise the defendant’s answer.
‘‘(7) The plaintiff’s motion to strike the defendant’s answer.
‘‘(8) The plaintiff’s reply to any special defenses.’’
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16 ,0 0 Conn. App. 1
Abrahams v. Photos

to Practice Book § 17-44, required that the pleadings
be closed before seeking a summary judgment, but the
well established rule in Practice Book § 17-44 is sound
because, ‘‘[o]n a motion for summary judgment, the
questions are whether there is any material fact in issue,
and, if not, whether the movant is entitled to judgment
as a matter of law. . . . [W]hen considering a motion
for summary judgment, facts in addition to those
asserted in the complaint can form the basis for an
argument that there is no material fact in dispute that
would prevent judgment as a matter of law. When there
is no such material fact in dispute or where there is
agreement of the parties as to every relevant fact . . .
the pleadings need not be closed in order to move
for summary judgment.’’ (Footnote omitted; internal
quotation marks omitted.) Gordon v. Gordon, 170 Conn.
App. 713, 722–23, 155 A.3d 809, cert. denied, 327 Conn.
904, 170 A.3d 1 (2017). Because no genuine issues of
material fact exist, the pleadings need not have been
closed in the present case before the defendant filed
the second motion for summary judgment.
It was not until August 21, 2023, that the plaintiff
filed motions for default, arguing that the defendant
should be defaulted for filing his answer to the revised
complaint in an untimely fashion.14 By the time the
plaintiff filed these motions, however, it was too late
for the trial court to consider them because the motions
for default were moot, as the defendant already had
filed an answer to the revised complaint on July 27,
2023.15
14
The plaintiff also filed motions for default after the defendant filed his
second motion for summary judgment, which motions were denied without
prejudice by the clerk, pursuant to Practice Book § 17-32 (a), due to a lack
of clarity in the relief sought and, in the alternative, because of the pendency
of the defendant’s second motion for summary judgment.
15
Practice Book § 17-32 (b) provides in relevant part: ‘‘If a party who has
been defaulted under this section files an answer before a judgment after
default has been rendered by the judicial authority, the default shall automati-
cally be set aside by operation of law . . . .’’ Accordingly, by an even
stronger force of logic, if a party who has not been defaulted for failure to
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0 Conn. App. 1 ,0 17
Abrahams v. Photos

In sum, the court, in rendering summary judgment,
had before it the pleadings, including the defendant’s
answer to the revised complaint, along with affidavits
and other proof submitted by the parties and properly
concluded that no genuine issues of material fact
existed and, therefore, the defendant was entitled to
judgment as a matter of law. For the foregoing reasons,
the plaintiff’s claim fails.
The judgment is affirmed.
In this opinion the other judges concurred.

plead files an answer before the court renders judgment, that party cannot
then be held in default.