Gagliardi v. Budahazy, No. Cv93 030 64 80 (Jan. 25, 1995)

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]ORDER Although the court is not pleased that plaintiff's counsel cashed a settlement check while retaining an unsigned release, the court orders, under the totality of the circumstances in this case, that the amended offer of judgment be allowed to be filed and that the original offer of judgment be withdrawn and further that the acceptance of the original offer of judgment filed by the defendants be withdrawn.

In reaching this conclusion, the court considered, inter alia, that

1. The settlement check refers only to the insured Arthur CT Page 373 Pine. It makes no reference to the second defendant, Gabor Budahazy.

2. Subsequent to the issuance of the settlement check the plaintiff moved for default for failure to plead against Gabor Budahazy, the defendants Pine and Budahazy filed an answer and special defense, the plaintiff filed a reply to the special defense, the plaintiff disclosed her expert witnesses and claims for the trial list were made.

The above court filings are inconsistent with a case that has been settled in full for $20,000. The court concludes that the plaintiff and the defendants considered the litigation to be continuing up to the offer of judgment. To then file an offer of judgment against the "defendants" in an amount equal to that already received from a single defendant makes no sense. This was clearly a typographical error and not to grant the plaintiff relief from it would exhalt form over substance.

LAWRENCE L. HAUSER, JUDGE