Newtown v. Ostrosky

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APPENDIX
TOWN OF NEWTOWN v. SCOTT E.
OSTROSKY ET AL.*
Superior Court, Judicial District of Fairfield
File No. CV-XX-XXXXXXX-S

Memorandum filed September 13, 2018

Proceedings

Memorandum of decision on named defendant’s
motion to reargue and for reconsideration. Motion
denied.
Joshua Pedreira, for the plaintiff.
Robert M. Fleischer, for the named defendant.
Opinion

HON. ALFRED J. JENNINGS, JR., JUDGE TRIAL
REFEREE. The defendant Scott E. Ostrosky moves to
reargue and for reconsideration of the ruling by the
court on June 18, 2018, granting the plaintiff’s motion
for a judgment of foreclosure and entering judgment
of foreclosure by sale on June 18, with a sale date of
December 8, 2018. Since both parties have briefed the
issue thoroughly, the court will decide this motion as
a motion for reconsideration.
The defendant argues, first, that the default for failure
to plead entered against him by the clerk on June 7,
2018, in response to the plaintiff’s motion for default
for failure to plead, dated May 23, 2018 (No. 114), was
invalid and cannot serve as the basis for judgment. The
defendant’s reasoning is that the motion for default
for failure to plead was filed ‘‘pursuant to Connecticut
Practice Book § 10-18,’’ which provides: ‘‘Parties failing
to plead according to the rules and orders of the judicial
authority may be nonsuited or defaulted, as the case
may be. (See General Statutes § 52-119 and annota-
tions.)’’ The referenced statute, § 52-119, provides: ‘‘Par-
ties failing to plead according to the rules and orders
of the court may be nonsuited or defaulted, as the case
may be.’’ The May 23, 2018 motion for default alleges
that ‘‘the return date was November 8, 2016, and, to date,
no responsive pleading has been filed by the defendant
Scott Ostrosky, although the time limit for such has
passed.’’ The time limit at issue, as stated in Practice
Book § 10-8, for a foreclosure action such as this, is
fifteen days after the return date. There is no claim by
the defendant that he had filed a responsive pleading
to the complaint within that fifteen day time frame or
at any subsequent date. The defendant argues that a
motion for default for failure to plead may also be
brought under Practice Book § 17-32 (a), which specifi-
cally authorizes that the motion ‘‘shall be acted on by
the clerk not less than seven days from the filing of
the motion, without placement on the short calendar.’’
Since the clerk is specifically authorized to act on a
motion for default filed pursuant to Practice Book § 17-
32 (a), but there is no such specific authority stated in
Practice Book § 10-18 for the clerk to act on a motion
for default filed pursuant to that section, the defendant
argues that it was improper and invalid for the clerk
to have granted the motion for default filed against him
brought pursuant to § 10-18. The argument fails because
Practice Book § 10-18 (and § 52-119) provide simply
that the party who has failed to plead within the time
specified in the rules ‘‘may be nonsuited or defaulted,
as the case may be.’’ The authority to grant or to deny
such nonsuit or default is not stated or limited in Prac-
tice Book § 10-18, but left to other provisions of law.
But the language of Practice Book § 17-32 (a) granting
authority of the clerk to act on motions for default
for failure to plead is clearly and expressly stated as
applying ‘‘[w]here a defendant is in default for failure
to plead pursuant to Section 10-8 . . . .’’ This motion
for default was filed pursuant to Practice Book § 10-18
on May 23, 2018, for failure to plead within the time
limit of Practice Book § 10-8. The motion was granted
by the clerk more than seven days later, on June 7,
2018. As the Appellate Court has stated in Deutsche
Bank National Trust Co. v. Bertrand, 140 Conn. App.
646, 657, 59 A.3d 864, cert. dismissed, 309 Conn. 905,
68 A.3d 661 (2013): ‘‘When a defendant fails to advance
timely the pleadings in accordance with Practice Book
§ 10-8, Practice Book § 17-32 sets forth a procedure by
which the clerk of the court, without input from the
judicial authority, may act on a motion for default filed
by the plaintiff.’’ There was nothing improper or invalid
about the clerk entering default for failure to plead
within the Practice Book § 10-8 limits on June 7, 2018.
The defendant argues, second, that the plaintiff’s
motion for judgment of strict foreclosure (No. 115),
filed on June 6, 2018, and granted as a judgment of
foreclosure by sale on June 18, 2018, was filed prema-
turely in violation of the language of Practice Book
§ 17-32 (b), which states: ‘‘A claim for a hearing in dam-
ages or motion for judgment shall not be filed before
the expiration of fifteen days from the date of notice
of the issuance of the default under this subsection.’’
In this case, the motion for judgment of strict foreclo-
sure was filed on June 6, 2018, which was one day prior
to the entry of default for failure to plead on June 7,
2018. The plaintiff asserts, and the court agrees, that
the foregoing fifteen day limitation of Practice Book
§ 17-32 (b) is excused by Practice Book § 17-33 (b) in
the case [of] a judgment entered in a foreclosure case
such as this. Practice Book § 17-33 (b) provides: ‘‘Since
the effect of a default is to preclude the defendant from
making any further defense in the case so far as liability
is concerned, the judicial authority, at or after the time
that it renders the default, notwithstanding Section 17-
32 (b), may also render judgment in foreclosure cases, in
actions similar thereto and in summary process actions,
provided the plaintiff has also made a motion for judg-
ment and provided further that any necessary affidavits
of debt or accounts or statements verified by oath, in
proper form, are submitted to the judicial authority.’’
In this case, a motion for judgment of strict foreclosure
had been filed by the plaintiff on June 6, 2018. Before
that motion was granted on June 18, 2018, the plaintiff
had filed all the requisite affidavits, appraisal, and fore-
closure worksheet in proper form. The defendant
argues, however, that the fifteen day limitation of Prac-
tice Book § 17-32 (b) is not excused because the forego-
ing excusing provision of Practice Book § 17-33 (b) only
applies ‘‘at or after the time it renders the default’’ and
that the word ‘‘it’’ refers back to the judicial authority’’
so that, in this case, where the default had been granted
by the clerk, who, he claims, is not a ‘‘judicial authority,’’
the fifteen day limit was not excused. Practice Book
§ 1-1 (c) defines the term ‘‘judicial authority’’ as ‘‘the
Superior Court, any judge thereof, each judge trial ref-
eree when the Superior Court has referred a case to
such trial referee pursuant to General Statutes § 52-434,
and for purposes of the small claims rules only, any
magistrate appointed by the chief court administrator
pursuant to General Statutes § 51-193l.’’ The definition
does not specifically include a clerk of the court, but
it does include ‘‘the Superior Court,’’ which would
include an order of an officer of the court, such as an
assistant clerk acting on behalf of the Superior Court
pursuant to a mandatory grant of authority under Prac-
tice Book § 17-32 (a) (motion for default for default for
failure to plead within deadline of Practice Book § 10-
8 ‘‘SHALL be acted on by the clerk’’ (emphasis added)).
The strict interpretation of Practice Book § 17-33 (b)
urged by the defendant is inconsistent with the Supreme
Court’s holding that ‘‘[t]he design of the rules of practice
is both to facilitate business and to advance justice;
they will be interpreted liberally in any case where it
shall be manifest that a strict adherence to them will
work surprise or injustice.’’ (Internal quotation marks
omitted.) Coppola v. Coppola, 243 Conn. 657, 665, 707
A.2d 281 (1998). Since Practice Book § 17-32 (a) man-
dated that motions for default for failure to plead ‘‘shall
be acted on by the clerk,’’ under the defendant’s narrow
interpretation, no judgment of strict foreclosure follow-
ing default for failure to plead could ever be filed until
fifteen days had elapsed following the granting of
default, despite the obvious intent of Practice Book
§ 17-33 (b) to ‘‘facilitate business’’ by permitting the
simultaneous filing of a motion for default for failure
to plead and a motion for judgment of strict foreclosure
in foreclosure and similar cases. That interpretation
virtually eliminates rule 17-33 (b) from ever taking effect
in a failure to plead situation—which would definitely
not ‘‘facilitate business.’’ It is manifest to this court that
the liberal interpretation treating an authorized order
by the clerk as an order of ‘‘the Superior Court’’ and,
therefore, an order of ‘‘the judicial authority’’ for the
purposes of Practice Book § 17-33 (b) is appropriate.
There should be no surprise that a defendant who has
appeared by counsel but has not filed a responsive
pleading to the complaint eighteen months after the
return date should be defaulted for failure to plead
and subject to an immediate motion for judgment of
foreclosure. The expressed reasoning of the Practice
Book § 17-33 (b) exception to waiting fifteen days
applies here: ‘‘Since the effect of a default is to preclude
the defendant from making any further defense in the
case so far as liability is concerned . . . .’’ See Chase
Manhattan Mortgage Corp. v. Burton, 81 Conn. App.
662, 841 A.2d 248, cert. denied, 268 Conn. 919, 847 A.2d
313 (2004), where the plaintiff had simultaneously filed
a motion for judgment and a motion for default for
failure to plead. The clerk granted the motion for default
on September 11, 2002, and the court rendered judg-
ment on September 16, 2002. Id., 667. The Appellate
Court held that, because the case was a foreclosure
proceeding, Practice Book § 17-33 (b) applied and the
court properly rendered judgment despite only five days
elapsing after the default had entered.
For the foregoing reasons, the defendant’s motion
to reargue and for reconsideration is denied, and the
plaintiff’s objection thereto is sustained.
* Affirmed. Newtown v. Ostrosky, 201 Conn. App. , A.3d (2020).