[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]
MEMORANDUM OF DECISION ON DEFENDANT'S AMENDED MOTION TO STRIKE DATED APRIL 2, 1990
The first issue raised by the defendants is whether or not the plaintiff's claims are barred by the provisions of General Statutes 52-557(b)(7) when the alleged failure to act may be either discretionary or ministerial. Such determination is a question of fact and cannot be properly resolved by this motion. Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 180-181
(1988).
The second issue raised by the defendants is whether non compliance with the notice requirements of General Statutes7-465 is fatal. Significantly, the municipality and the employees involved herein chose to be represented by the same attorney, which fact required such attorney to file a statement that the municipality will pay any verdict rendered against such employees. This statement constitutes a waiver of the municipality's right to assert any defense which it might have to a claim based on 7-465. Fraser v. Henninger, 173 Conn. 52, 58 (1977).
For the reasons set out above, the defendants' amended motion to strike is denied.
BARRY, J.