Del Negro's Market v. Santilli, No. Cv 98-0580221s (Jan. 3, 2001)

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]

MEMORANDUM OF DECISIONFollowing the most recent hearing in the above matter, the plaintiff filed an amended motion for leave to amend complaint dated December 6, 2000, and the defendants filed an objection to same dated December 8, 2000. The defendants, by motion dated November 21, 2000, moved to set aside or vacate the judgment, which judgment is the memorandum of decision dated November 9, 2000. After a review of the transcripts and hearing arguments of counsel, the latest oral argument being January 3, 2001, the Court recognizes that its decision was supposed to be only on the oral motion to dismiss made by the defendants. The case was then going to proceed for further evidence. Accordingly,

1. The judgment of November 9, 2000 is hereby vacated, but based upon the contents of said memorandum of decision, the oral motion to dismiss is denied.

2. The amended motion for leave to amend complaint dated December 6, 2000 is granted, and the objection thereto dated December 8, 2000

3. The above actions have been taken by the Court for the sole purpose of permitting defendants to present evidence that they are not liable for fraudulent misrepresentation. The plaintiff will then have an opportunity for rebuttal in accordance with the normal course of trial.

4. Following the close of evidence on the issue of fraudulent misrepresentation, the plaintiff may put on evidence as to damages and other relief sought, and the defendants may put on evidence and/or claims CT Page 563 in opposition thereto.

5. Defendants have this date filed a Motion to Recuse. Plaintiff may file a response to same by January 17, 2001. There will be no further briefs on this issue and the Court will decide it on the papers.

6. This matter is hereby continued for forty-five days from the decision on the Motion to Recuse during which the defendants may conduct additional discovery with respect to the relief requested in the amended complaint. Within thirty days of completion of said discovery, the defendants are to file a responsive pleading to the amended complaint which may include special defenses, counterclaims and claims of offset.

7. This matter may not be retried in its entirety before a jury. However, under Section 10-64 of the Connecticut Practice Book, the defendants may within fifteen days of the Court's decision on the merits of the fraudulent misrepresentation claim and only if the decision is in favor of the plaintiff, claim for the jury docket only the issues of the relief requested; that is the claims for legal and equitable relief. The previous testimony heard to date as to fraudulent misrepresentation stands as part of the record, and further evidence as to fraudulent misrepresentation shall be heard before this Court. The above decision under Connecticut Practice Book Section 10-64 is without prejudice.

Rittenband, JTR.