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Case v. Connecticut Institute for the Blind, Inc.
KATHLEEN CASE, ADMINISTRATOR (ESTATE
OF SCOTT CASE) v. THE CONNECTICUT
INSTITUTE FOR THE BLIND, INC.,
ET AL.
(AC 47664)
Cradle, C. J., and Elgo and Wilson, Js.*
Syllabus
The defendant C Co. appealed from the trial court’s judgment, following a jury trial, for the plaintiff, the administrator of the estate of her son, the decedent, in connection with C Co.’s alleged negligence that led to the decedent’s wrongful death. C Co. claimed, inter alia, that there was insufficient evidence to support the jury’s verdict. Held:
This court declined to review C Co.’s claims of evidentiary insufficiency because it failed to properly preserve those claims for appellate review, as it did not file a motion to set aside the verdict asking to have judgment rendered in accordance with its motion for a directed verdict, which, pursuant to the rule of practice (§ 16-37), had been deemed denied when the trial court reserved its decision on it and ultimately submitted the case to the jury.
C Co.’s claim that the plaintiff’s allegations of recklessness and request for punitive damages should not have been permitted because they were raised beyond the statute of limitations was not properly preserved for this court’s review, as the trial court never addressed the merits of C Co.’s statute of limitations defense because C Co. did not raise it by the proper procedural vehicle in a timely manner.
This court declined to review C Co.’s claims that the plaintiff’s claim under the patients’ bill of rights statute (§ 19a-550) was barred by the exclusivity of the wrongful death statute (§ 52-555), that the trial court should have stricken the plaintiff’s claims of recklessness and her associated claim for punitive damages because they constituted an improper claim for vicarious liability, and that the trial court should not have allowed the plaintiff to file an amended revised complaint, as C Co.’s claims were inadequately briefed.
Argued March 12—officially released September 15, 2026
Procedural History
Action to recover damages for, inter alia, the defendants’ alleged negligence in connection with the wrongful
death of the plaintiff’s decedent, and for other relief,
brought to the Superior Court in the judicial district
of Waterbury, where the court, Bellis, J., granted the
*
The listing of judges reflects their seniority status on this court as of the date of oral argument.
Case v. Connecticut Institute for the Blind, Inc.
named defendant’s motion to strike; thereafter, the
court, Bellis, J., denied the named defendant’s motion
to strike; subsequently, the case was transferred to the
Complex Litigation Docket, where the case was withdrawn as to the defendant Lincare, Inc.; thereafter,
the case was tried to the jury before Pierson, J.; verdict
and judgment for the plaintiff, from which the named
defendant appealed to this court. Affirmed.
Michael S. Taylor, with whom were Brendon P.
Levesque and David G. Hill, for the appellant (named
defendant).
James J. Healy, with whom were Shivangi Bhatia
and, on the brief, John W. Mills and Maria A. Cahill,
for the appellee (plaintiff).
Opinion
CRADLE, C. J. In this wrongful death action, the
defendant, the Connecticut Institute for the Blind, Inc.,
doing business as Oak Hill,1 appeals from the judgment
of the trial court, rendered after a jury trial, in favor of the plaintiff, Kathleen Case, the administrator of the
estate of her son, Scott Case (decedent). On appeal, the
defendant claims that (1) there was insufficient evidence
to support the jury’s verdict and (2) “[t]he plaintiff’s
claim for punitive damages based on [the defendant’s]
alleged recklessness should not have been permitted
to stand” because (a) it was filed beyond the applicable
statute of limitations; (b) it was based on alleged violations of the patients’ bill of rights, General Statutes
§ 19a-550 et seq., and was barred by the exclusivity of
the wrongful death statute, General Statutes § 52-555;
(c) the plaintiff’s claim for recklessness “constitute[d] an improper respondeat superior claim”; and (d) the court
improperly permitted the plaintiff to file the operative
revised amended complaint without seeking the court’s
1
Lincare, Inc., also was named as a defendant in this action. On March 22, 2024, the plaintiff withdrew the action as to Lincare, Inc. Accordingly, any reference herein to the defendant is to the Connecticut Institute for the Blind, Inc., doing business as Oak Hill.
Case v. Connecticut Institute for the Blind, Inc.
permission to do so under Practice Book § 10-60. We
affirm the judgment of the trial court.
The following undisputed facts and procedural history
are relevant to our resolution of the claims on appeal. The defendant is a community service provider for individuals with disabilities and maintains several intermediate
care facilities throughout the state, including the facility at which the decedent resided from September 2015
until the date of his death, May 23, 2016. The decedent
required nighttime use of a bilevel positive airway pressure (BiPAP) noninvasive respiratory breathing machine
to manage his sleep apnea. The BiPAP machine was
provided and maintained by Lincare, Inc. (Lincare).
According to the guidelines established by the defendant
for the decedent’s care, dated September 7, 2015, the
decedent was to be checked “throughout the night at
least every half hour to make sure the [BiPAP] mask is
on his face and he is breathing okay [and] also that the
tubing is free.” (Emphasis in original.) The decedent was
discovered unresponsive in his bed at approximately 4
a.m. on May 23, 2016, and was pronounced dead shortly
thereafter.
The plaintiff commenced this action and, thereafter,
by way of the operative amended revised complaint filed
on October 2, 2023, alleged that the defendant’s negligence and reckless disregard of the decedent’s rights,
under § 19a-550 (e),2 proximately caused his death. In
2
General Statutes § 19a-550 (e) provides: “Any nursing home facility, residential care home or chronic disease hospital that negligently deprives a patient of any right or benefit created or established for the well-being of the patient by the provisions of this section shall be liable to such patient in a private cause of action for injuries suffered as a result of such deprivation. Upon a finding that a patient has been deprived of such a right or benefit, and that the patient has been injured as a result of such deprivation, damages shall be assessed in the amount sufficient to compensate such patient for such injury. The rights or benefits specified in subsections (b) to (d), inclusive, of this section may not be reduced, rescinded or abrogated by contract. In addition, where the deprivation of any such right or benefit is found to have been wilful or in reckless disregard of the rights of the patient, punitive damages may be assessed. A patient may also maintain an action pursuant to this section
Case v. Connecticut Institute for the Blind, Inc.
support of those claims, the plaintiff alleged that the
decedent’s BiPAP machine had not been functioning
properly since April 15, 2016, and, after an inspection
on May 19, 2016, Lincare opined that the machine would
need to be replaced within the week. The BiPAP machine
was not replaced prior to the decedent’s death. The plaintiff further alleged that, on May 22, 2016, the decedent
was equipped, with the assistance of an employee of the
defendant, with the BiPAP mask at approximately 9
p.m. The plaintiff asserted that the decedent was not
checked every half hour that night, as required by the
defendant’s guidelines, and “[a]ny checks that were
made between the hours of 11 p.m. and 4 a.m. consisted
of looking into the [decedent’s] room from the doorway
and did not include checking to ensure that [the decedent]
was breathing, that he showed no signs of blue in his face
or fingers and [that his] BiPAP mask was secure [and]
that the tubing was free.” When the decedent was found
unresponsive at 4 a.m. on May 23, 2016, the employee
who found him did not initiate cardiopulmonary resuscitation (CPR) or call for an ambulance. Instead, that
employee sought the assistance of another employee,
who, at 4:21 a.m. removed the decedent’s BiPAP mask
and called the police. Between that time and 4:29 a.m.,
when paramedics arrived, the two employees moved the
decedent to the floor and initiated CPR. The decedent
was pronounced dead at 4:38 a.m.
The plaintiff alleged that, contrary to prior nights, the
“chip in the BiPAP machine did not record any data” from
the time the decedent went to bed on May 22, 2016, to the
time that he was pronounced dead on May 23, 2016, and
that indicated that the BiPAP machine was not working
properly that night. The plaintiff further alleged that
the defendant had failed to properly train its employees
as to the decedent’s need for the BiPAP machine and
for any other type of relief, including injunctive and declaratory relief, permitted by law. Exhaustion of any available administrative remedies shall not be required prior to commencement of suit under this section.”
Case v. Connecticut Institute for the Blind, Inc.
“how to operate and understand the functioning of the
machine . . . .”
Following a trial, the jury returned a verdict, on March
20, 2024, in favor of the plaintiff, finding that the defendant’s negligence and reckless disregard of the decedent’s
rights proximately caused his death. The jury awarded
the plaintiff $4 million in noneconomic damages and
$6 million in punitive damages. On that same day, the
trial court accepted and recorded the verdict. On April
8, 2024, the plaintiff filed a motion for judgment asking
that the court enter judgment in accordance with the
jury’s verdict. In support of that motion, the plaintiff
asserted that the defendant had not filed a motion to set
aside or to reduce the verdict and that the ten day time
period for filing such motion had expired. The defendant
filed its objection on May 3, 2024. On May 8, 2024, on
the plaintiff’s motion, the court rendered judgment in
accordance with the jury’s verdict.3 The court awarded
offer of compromise interest pursuant to General Statutes § 52-192a in the amount of $3,364,383.20. The
court also awarded postjudgment interest at a rate of 10
percent per year pursuant to General Statutes § 37-3a.
This appeal followed. Additional facts and procedural
history will be set forth as necessary.
I
The defendant first claims that the plaintiff presented
insufficient evidence to support the jury’s verdict.
3
The court explained, inter alia: “In this case, while [the defendant] moved for a directed verdict after the plaintiff rested, it failed to file with the clerk a written motion to set aside the verdict or for judgment notwithstanding the verdict, or any other motion listed in Practice Book § 16-35, within the ten day period mandated by § 16-35, which ten day period expired on April 1, 2024 (March 30, 2024, being a Saturday; see Practice Book § 7-17). Moreover, the defendant did not move for an extension of the ten day period, prior to the expiration of that period, for good cause shown. On the present record, and in light of the court’s denial of the defendant’s motion for permission to file a late motion and renewed motion for directed verdict . . . the plaintiff is entitled to the entry of judgment on the jury’s verdict in the amount of $10,000,000. See Practice Book § 17-2.” (Citation omitted.)
Case v. Connecticut Institute for the Blind, Inc.
Specifically, the defendant claims that there was insufficient evidence to prove (a) that its negligence caused the decedent’s death, (b) that it acted wilfully or recklessly, and (c) the decedent’s life expectancy.4 In response, the
plaintiff argues that the defendant’s claims of evidentiary insufficiency were not properly preserved for our
review because the defendant failed to file a motion to
set aside the verdict in accordance with Practice Book
§ 16-37.5 We agree with the plaintiff.
The following additional procedural history is relevant
to our resolution of this claim. The plaintiff rested her
4
Specifically, the defendant claims that the evidence was insufficient to prove that the defendant’s conduct caused the death of the decedent because the testimony of the plaintiff’s causation expert was based on speculation and conjecture and was not supported by subordinate facts. The defendant also contends that the plaintiff failed to introduce any evidence of wilful or reckless conduct in support of her claim for punitive damages under § 19a-550 (e) and failed to prove the decedent’s life expectancy for purposes of her claim for loss of life’s enjoyment. Because we conclude that these issues were not preserved, we do not address them.
5
Practice Book § 16-37 provides in relevant part: “Whenever a motion for a directed verdict made at any time after the close of the plaintiff’s case-in-chief is denied or for any reason is not granted, the judicial authority is deemed to have submitted the action to the jury subject to a later determination of the legal questions raised by the motion. The defendant may offer evidence in the event the motion is not granted, without having reserved the right to do so and to the same extent as if the motion had not been made. After the acceptance of a verdict and within the time stated in Section 16-35 for filing a motion to set a verdict aside, a party who has moved for a directed verdict may move to have the verdict and any judgment rendered thereon set aside and have judgment rendered in accordance with his or her motion for a directed verdict . . . . If a verdict was returned, the judicial authority may allow the judgment to stand or may set the verdict aside and either order a new trial or direct the entry of judgment as if the requested verdict had been directed. . . .”
Practice Book § 16-35 provides: “Motions in arrest of judgment, whether for extrinsic causes or causes apparent on the record, motions to set aside a verdict, motions for remittitur, motions for additur, motions for new trials, unless brought by petition served on the adverse party or parties, and motions pursuant to General Statutes § 52-225a for reduction of the verdict due to collateral source payments must be filed with the clerk within ten days after the day the verdict is accepted; provided that for good cause the judicial authority may extend this time.
Case v. Connecticut Institute for the Blind, Inc.
case on March 12, 2024, after which the defendant’s
counsel orally moved for a directed verdict, arguing
that the plaintiff failed to prove that the defendant’s
negligence caused the decedent’s death and that it acted
“wilfully with the intention of killing or causing [the
decedent’s] death.”6 After hearing argument on the
defendant’s oral motion for a directed verdict, the court
held: “The court is going to reserve decision on all of the legal issues raised in the motions for a directed verdict to a later time in the proceedings pursuant to § 16-37 of the
Practice Book. . . . But the court is going to take those
issues up after the jury has rendered its verdict.” 7 The
trial then proceeded with the defendant’s presentation
of evidence.
On March 20, 2024, after the court accepted and
recorded the jury’s verdict, counsel for the defendant
reminded the court, on the record, of its earlier motion
for a directed verdict. The court declined to take up
the motion at the time and stated that it would “advise
[counsel] as to when [it would address it].”8
After the court accepted the jury’s verdict on March
20, 2024, no motions were filed until April 8, 2024,
when the plaintiff filed a motion for judgment pursuant
The clerk shall notify the trial judge of such filing. Such motions shall state the specific grounds upon which counsel relies.”
6
The defendant did not file a written motion for a directed verdict.
7
Lincare also orally moved for a directed verdict and filed a written motion. The court’s reference to more than one motion included the motions for a directed verdict by Lincare and the defendant. As noted in footnote 1 of this opinion, the plaintiff withdrew her action as to Lincare.
8
Specifically, the following colloquy occurred after the court accepted the verdict:
“[The Defendant’s Counsel]: Your Honor obviously reserved judgment on several motions and I wasn’t sure if the court wants to take them up at this point in time or wants to.
“The Court: I do not.
“[The Defendant’s Counsel]: Okay. I took it as much, I figured everything’s a little bit fresh in people’s minds, but I did want to remind the court of something I probably don’t need to but obviously I’ll defer to the court as to when the court may want to take those motions up.
“The Court: Attorney Hill, I have not forgotten. . . . And I will advise you as to when.”
Case v. Connecticut Institute for the Blind, Inc.
to Practice Book § 17-2,9 wherein she asked the court to
render judgment on the jury’s verdict. The plaintiff,
in her motion, also sought statutory interest, offer of
compromise interest and statutory costs. In support of
her motion, the plaintiff noted the defendant’s March
12, 2024 oral motion for a directed verdict, but recounted
that, “[a]t no time after the defendant rested did [the
defendant’s] counsel renew his motion for a directed
verdict, nor did he do so after final arguments or before
the exhibits were submitted to the jury and the jury
began its deliberations.” She further recounted that the
defendant had not filed any postverdict motions pursuant to Practice Book § 16-35 or § 16-37.
Although the defendant had not filed any postverdict
motions that would have precluded the entry of judgment, the plaintiff noted on the request for adjudication
of her motion for judgment that the defendant did not
consent to the entry of judgment,10 which caused the
court to hold a status conference with the parties on April 12, 2024, for the purpose of setting a briefing schedule
on the plaintiff’s motion for judgment. At that status
conference, counsel for the defendant reminded the court
that the defendant “still has a pending . . . motion for
directed verdict that . . . the court has not ruled on” and 9
Practice Book § 17-2 provides: “The judicial authority shall render judgment on all verdicts of the jury, according to the jury’s finding, subject to statutory adjustments, with costs, unless the verdict is set aside; and in all cases where judgment is rendered otherwise than on a verdict, in favor of the plaintiff, the court shall assess the damages which the plaintiff shall recover. If no motions under Section 16-35 or 17-2A are filed, upon the expiration of the time provided for the filing of such motions, judgment on the verdict shall be rendered in accordance with the verdict, and the date of the judgment shall be the date the verdict was accepted. If motions are filed pursuant to Section 16-35 or 17-2A, judgment shall be rendered at the time of and in accordance with the decision on such motions. Whenever a judgment is rendered in a civil jury case, the clerk shall send notice of such judgment to all attorneys and self-represented parties of record. (See General Statutes § 52-225 and annotations.)”
10
The plaintiff filed the request for adjudication on April 9, 2024. The first question on that form is: “May the motion or objection be granted or sustained by agreement or consent?” In response to that question, the plaintiff checked the “[n]o” box.
Case v. Connecticut Institute for the Blind, Inc.
asked if the court intended “to do anything relative to
that motion.” In response, the court explained to counsel
that the motion for a directed verdict was deemed to have
been denied when the court initially reserved judgment
on it and thereafter submitted the action to the jury and
accepted the jury’s verdict.11 The court further explained
that the only way for the defendant to have resurrected
its arguments on the motion for a directed verdict was
11
The following colloquy ensued:
“The Court: I’m aware that you made a motion for directed verdict at the close of the plaintiff’s case. I’m fully aware of that, and as I believe I said to you, I know that you made that motion. . . . But that motion is . . . as a matter of law . . . that motion’s deemed—if I reserved judgment on a motion for directed verdict, for purposes of all subsequent proceeding[s], that motion is deemed denied.
“[The Defendant’s Counsel]: You’re correct, Your Honor. . . .
“The Court: The only way to revive a motion for directed verdict is to file a motion to set aside or a motion for judgment notwithstanding the verdict in accordance with the Practice Book. And I assume [that counsel for the plaintiff] are going to say, ‘well, that wasn’t done here, so they’re entitled to judgment.’
“[The Defendant’s Counsel]: Well, Your Honor . . . I understand what Your Honor is saying about the motion for directed verdict, but typically, what happens is even when the decision is reserved, the parties are allowed to brief that motion. That’s all I’m looking to do. So, I mention this because Your Honor asked a question about the objection to the motion for judgment. I do want to file an objection, but what I was looking for was some kind of briefing schedule on the motion for directed verdict.
“The Court: In my view . . . there will be no briefing schedule for the motion for directed verdict because it’s deemed denied. It’s deemed denied, so if a motion to set aside where for [a judgment notwithstanding the verdict] had been filed [within] the ten day period, obviously I would set a briefing schedule for that motion. But that wasn’t done, and there will be no briefing schedule on a motion to set aside, but I am going to allow [you], obviously, to oppose the motion for judgment if you wish to do so.
“[The Defendant’s Counsel]: Yeah, no. I appreciate that Your Honor. I could tell you. If the court recalls, at the close of the case, shortly after the jury verdict—and I understand what Your Honor’s saying about the motion being denied, but at the close of evidence, I asked the court and I renewed the motion, and the court said, ‘we’re going to get to that at some point.’ I don’t know exactly what the court’s verbiage was, but ‘we’ll deal with that at some point.’ All I’m doing at this point, Your Honor, is asking the court to allow me to brief that motion, so that we can preserve—the issues are already before the court, such that I think they’re preserved for the Appellate Court, but I just want to be
Case v. Connecticut Institute for the Blind, Inc.
to have filed a motion to set aside the verdict or for judgment notwithstanding the verdict within the ten day
period prescribed by Practice Book §16-35, which the
defendant failed to do. The court then ordered the parties
to file briefs with respect to the motion for judgment by
May 3, 2024.12
On May 3, 2024, the defendant filed an objection to the
plaintiff’s motion for judgment, a motion for permission to file a late motion for a directed verdict pursuant
to Practice Book §§ 16-35 and 16-37, and a motion for a
directed verdict pursuant to § 16-37. In its motion for
permission to file a late motion for a directed verdict, the defendant argued, inter alia, that, “[r]egardless of the
able to brief it just so we make sure the record is clean before we take this verdict up.
“The Court: “Right, but see, in my view, absent a filing of a motion to set aside and/or a motion for [judgment notwithstanding the verdict], there’s nothing for the court to take up. That’s the court’s view.
“[The Defendant’s Counsel]: I respect that. I don’t know that I necessarily agree, so what I may do if I may, Your Honor . . . because certainly, I don’t want to do anything in violation of the court’s wishes. I would like a chance to brief that very issue, um, because—
“The Court: In connection with your objection to the motion for judgment, you could raise that issue in there because the issue of the ten days is squarely raised by [the plaintiff’s counsel] in their motion for judgment. So, in my view . . . you have carte blanche to address that issue in the context of an objection to the motion for judgment. . . . [B]ut I’m not going to set a briefing schedule on a motion for direct[ed] verdict when there’s been no motion to set aside filed. . . . I just don’t see how procedurally I can do that.
“[The Defendant’s Counsel]: Well, I mean, as the court knows, that ten days is not jurisdictional, and so, I do think the direct[ed] verdict needs to be amplified for the court’s sake. I do think it need[s] to be amplified and clarified for purposes of the record, so I’ll probably be filing—[it] sounds like the plaintiff will be objecting to it—is an extension to file a motion [to] set aside [the verdict] if the court thinks that’s the prerequisite to renewing the issue in the directed verdict. I don’t know. My initial position is that it should not be necessary, but in light of the court’s comments . . . I feel like I should just notify the court that we’re probably going to file that request for an extension.
“The Court: [Y]ou [file] whatever you feel is necessary to be filed. I’m just saying, on the current record, that’s my view of where we are.”
12
Following that status conference, on the same day, the plaintiff filed a renewed motion for judgment on the basis of the court’s explanation of its position on the defendant’s motion for a directed verdict.
Case v. Connecticut Institute for the Blind, Inc.
court’s intent on March 20, 2024, the defendant reasonably and in good faith believed that the court considered
the motion for directed verdict to be renewed and would
subsequently enter a briefing and/or hearing schedule
in order to address the issues raised in that motion.”
By written order dated May 8, 2024, the court denied
the defendant’s request to file a late motion for a directed verdict. In so doing, the court first noted that the ten
day time period for filing postverdict motions set forth
in Practice Book § 16-35 is mandatory and the plaintiff
had not waived it. The court next noted that any request
for an extension of time to file such a motion should
have been filed within the ten day time period as provided by § 16-35. The court also rejected the defendant’s
argument that good cause existed to allow it to file an
untimely motion because it “believe[d] that its motion
for directed verdict was properly renewed following the
jury verdict on March 20, 2024,” because, after accepting the verdict, the court told counsel for the defendant
that it would “advise [counsel] as to when” it would
take up his motion. (Internal quotation marks omitted.)
The court explained: “To begin, postverdict motions
governed by § 16-35 cannot be made orally. Even if the
court considered the defendant’s verbal ‘reminder’ that
the court had reserved judgment on ‘several motions’ as
a renewal of those motions—which is a generous interpretation of counsel’s statement, to say the least—the
renewal was made orally. This fails to comply with the
express requirement of Practice Book § 16-35 that the
postverdict motions encompassed by the rule ‘MUST
BE FILED WITH THE CLERK within ten days after
the day the verdict is accepted . . . .’ . . . To be filed with the clerk, such motions must be written, and the rule
does not contemplate the making of oral motions. Given
the language of the rule, the defendant’s belief that it
had renewed the motion by means of an oral ‘reminder,’
following the acceptance of the jury’s verdict, does not
amount to good cause.
Case v. Connecticut Institute for the Blind, Inc.
“Moreover, as to the court’s statement at the end of
proceedings on March 20, 2024—‘I will advise you as to
when’—the remark does not suggest, either directly or by
implication, that the court was excusing the defendant
from its obligation to file a written postverdict motion
within the time limits provided by Practice Book § 16-35.
Courts do not take up previously denied motions for
directed verdict, suo motu, following the acceptance of
a verdict. Rather, it is the moving party’s obligation to
renew the motion for directed verdict by filing a timely
motion to set aside and/or for judgment notwithstanding the verdict, as provided by Practice Book § 16-37, in
accordance with the time limitation established by . . .
§ 16-35. See, e.g., Gagne v. Vaccaro, 255 Conn. 390,
400–401, 766 A.2d 416 (2001) (observing that ‘a motion
for judgment notwithstanding the verdict is not a new
motion, but the renewal of a motion for directed verdict’). As observed by our Supreme Court, ‘[i]n the event that
the jury . . . returns a verdict for the plaintiff, [§ 16-37] provides what steps the unsuccessful defendant may
take to renew any legal claim previously raised in its
motion for a directed verdict . . . .’ (Citation omitted.)
Riley v. Travelers Home & Marine Ins. Co., [333 Conn.
60, 72–73, 214 A.3d 345 (2019)].
“[The defendant] did not take these steps. As noted
by the court during [the] status conference held with
the parties on April 12, 2024, [because] the defendant
failed to file a postverdict motion within the required
time period [set forth in Practice Book § 16-35], there
was nothing remaining for the court to consider or take
up . . . . Good cause for allowing the untimely submission
of the defendant’s motion has not been demonstrated.”
(Citation omitted.)
The plaintiff argues that the defendant’s claims of
evidentiary insufficiency are not properly preserved
because the defendant failed to revive its motion for a
directed verdict by filing a motion to set aside the verdict. Our rules of practice and our case law support the
plaintiff’s argument. Our Supreme Court has explained:
Case v. Connecticut Institute for the Blind, Inc.
“Practice Book § 16-37 expressly provides the procedure to be followed by a trial court when a motion for
a directed verdict is not granted. If such a motion ‘is
denied or for any reason is not granted, the judicial
authority is deemed to have submitted the action to the
jury subject to a later determination of the legal questions raised by the motion.’ Practice Book § 16-37. The
trial court, therefore, may grant the motion, deny the
motion, or reserve decision on the motion. See Southern
New England Telephone Co. v. Pagano, 79 Conn. App.
458, 466, 830 A.2d 359 (2003) (recognizing that trial
court may ‘delay its decision on a motion for a directed
verdict’ and need not ‘immediately deny or immediately
grant the motion’); 2 R. Bollier & S. Busby, Stephenson’s
Connecticut Civil Procedure (3d Ed. 2002) § 195 (d), p.
399 (‘[u]nder [§] 16-37 . . . the trial judge can refuse to rule on the motion for a directed verdict and submit the
case to the jury’).
“Practice Book § 16-37 treats the trial court’s election
to reserve decision as the equivalent of a denial of the
motion for purposes of subsequent proceedings, which is
why the rule states that the case is deemed to have been
submitted to the jury subject to a later determination
of the legal questions raised by the motion if, for any
reason, ‘the motion is not granted . . . .’ Practice Book
§ 16-37. In the event that the jury thereafter returns a
verdict for the plaintiff, the rule provides what steps the unsuccessful defendant may take to renew any legal claim
previously raised in its motion for a directed verdict:
‘After the acceptance of a verdict and within the time
stated in Section 16-35 for filing a motion to set a verdict aside, a party who has moved for a directed verdict may
move to have the verdict and any judgment rendered
thereon set aside and have judgment rendered in accordance with his or her motion for a directed verdict . . . .’ Practice Book § 16-37.” (Footnote omitted; emphasis in
original.) Riley v. Travelers Home & Marine Ins. Co.,
supra, 333 Conn. 72–73.
It is also well settled that it is necessary for a party
to move to set aside a verdict to obtain appellate review
Case v. Connecticut Institute for the Blind, Inc.
of a claim that the evidence was insufficient to support
the verdict. Small v. South Norwalk Savings Bank, 205
Conn. 751, 758–59, 535 A.2d 1292 (1988); Pietrorazio v.
Santopietro, 185 Conn. 510, 513, 441 A.2d 163 (1981);
Goral v. Kenney, 26 Conn. App. 231, 235, 600 A.2d
1031 (1991). Our Supreme Court has explained that
this principle is grounded on the notion that we do not
address claims on appeal that were not distinctly raised in the trial court.13 Pietrorazio v. Santopietro, supra, 515.
This serves “to afford the trial court a full opportunity
to redress any errors which may have occurred at trial
before the appellate process is begun.” Id.
The defendant argues that Pietrorazio has been overruled by our Supreme Court’s decision in Santopietro v.
New Haven, 239 Conn. 207, 682 A.2d 106 (1996), and
“that a postverdict motion is no longer required in order
to preserve appellate review of issues raised at trial.”
In Pietrorazio, the plaintiff claimed that “the verdict
was against the weight of the evidence and that several rulings of the court pertaining to the admissibility
of testimony were erroneous.” Pietrorazio v. Santopietro, supra, 185 Conn. 511. The plaintiff failed to file a
motion to set aside the jury’s verdict rendered in favor
of the defendants. Id., 512. The court held that claims
of insufficient evidence and claims of error that occur
during trial, such as those relating to the admissibility
of evidence, must be asserted in a motion to set aside
the verdict in order to properly preserve such claims for
appellate review. Id., 515.
In Santopietro, the court addressed the issue of whether
“a motion to set aside the verdict [w]as a prerequisite for full appellate review of rulings other than those involving the sufficiency of the evidence to support the verdict.”
Santopietro v. New Haven, supra, 239 Conn. 214. The
court thus focused on rulings made by the trial court
and expressly noted: “We need not decide in this case
13
The court also noted that “trial counsel often file such motions as a matter of course immediately following the rendition of an adverse verdict.” Pietrorazio v. Santopietro, supra, 185 Conn. 515.
Case v. Connecticut Institute for the Blind, Inc.
whether that understanding, namely, that a motion to
set a verdict aside is essential to full appellate review of a claim of insufficiency of the evidence to support a civil verdict, is correct.” Id., 213 n.9. More recently, in Willow Springs Condominium Assn., Inc. v. Seventh BRT
Development Corp., 245 Conn. 1, 717 A.2d 77 (1998),
our Supreme Court, citing Santopietro, noted: “We
note that it is no longer generally necessary for litigants to preserve a claim both during trial and posttrial in a
motion to set aside the verdict in order to obtain appellate review. . . . In Santopietro, however, we specifically reserved the question of whether, in a civil action for
money damages, it would be necessary to raise the issue
of sufficiency of the evidence both during the trial and
in a motion to set aside the verdict.” (Citation omitted;
emphasis in original.) Id., 49 n.43. Our case law requiring that a motion to set aside a verdict be filed in order
to revive claims of insufficient evidence that are raised
in a motion for a directed verdict therefore controls
our disposition of the defendant’s claims of evidentiary
insufficiency in this case.
Here, pursuant to Practice Book § 16-37, the defendant’s motion for a directed verdict was deemed to have
been denied when the court reserved its decision on it and
ultimately submitted the case to the jury. Counsel for
the defendant conceded that at the April 12, 2024 status
conference. See footnote 11 of this opinion. Section 16-37
clearly sets forth the steps that a party must take in order for the court to consider the issues raised in that motion
for a directed verdict after the jury renders a verdict,
namely, file a motion to set aside the verdict within ten
days.14 It is uncontested that the defendant failed to
14
With respect to the relatively short period within which parties may file postverdict motions, our Supreme Court has noted: “[A]lthough the time is short, [it] is found by experience to be on the whole for the interest of the public. We no more feel at liberty to disregard it on account of the hardship of a particular case than we do to disregard an ordinary statute of limitations for a similar reason.” (Internal quotation marks omitted.) Small v. South Norwalk Savings Bank, supra, 205 Conn. 758.
Case v. Connecticut Institute for the Blind, Inc.
do so.15 Because the defendant did not file a motion to
set aside the verdict asking to have judgment rendered
in accordance with its motion for a directed verdict in
accordance with § 16-37, which had been deemed denied
by the court, it failed to properly preserve for our review its claims of evidentiary insufficiency.16 We therefore
decline to review them.
II
The defendant also claims that “[t]he plaintiff’s claim
for punitive damages based on [the defendant’s] alleged
15
In fact, it is uncontested that the defendant did not file any motions with the court following the court’s acceptance of the verdict on March 20, 2024, until May 3, 2024. Even if the defendant’s claim of a “good faith misunderstanding” could have excused its failure to comply with Practice Book § 16-37, the defendant’s failure to file any motions with the court until May 3, 2024, when it became aware of the court’s position on the oral motion for directed verdict on April 12, 2024, is inexplicable. Although the court scheduled the filing of briefs on the plaintiff’s motion for judgment to be filed by that date, it is unclear why the defendant would not immediately have filed a motion for permission to file a late motion to set aside.
It is also noteworthy that the twenty day appeal period in this case expired on April 9, 2024, twenty days after the jury’s verdict was accepted. Practice Book § 63-1 (b). On May 23, 2024, more than sixty days after the court accepted the jury’s verdict, the defendant filed a motion for permission to file a late appeal, which was granted by this court.
Although not at issue at this point, it is equally perplexing that the defendant would not take any action with respect to its right to file an appeal with this court, the time period for the filing of which unequivocally began to run on March 20, 2024, when the court accepted the jury’s verdict.
16
The defendant argues that the court “should have ruled on [the defendant’s] motion for directed verdict or, alternatively, granted permission to file a late motion for directed verdict” and abused its discretion by failing to do so. The defendant argues: “Given that [the defendant’s] motion [for a directed verdict] was properly renewed following the verdict (and given the plaintiff’s contested motion for judgment, filed within twenty days of the verdict), [the defendant] submits that it properly renewed its motion for directed verdict and that the court should have considered the same.” In so arguing, the defendant seems to be arguing that it properly renewed its motion for a directed verdict when it contested the plaintiff’s motion for judgment. The plaintiff filed her motion for judgment on April 8, 2024, nineteen days after the court accepted the verdict, wherein she noted that the defendant had not filed any postverdict motions. Rather than file an
Case v. Connecticut Institute for the Blind, Inc.
recklessness should not have been permitted to stand.”
Specifically, the defendant argues that (1) the plaintiff’s claims of reckless or wilful misconduct were filed beyond
the applicable statute of limitations, (2) the plaintiff’s
claim for recovery under § 19a-550 (e) was barred by the
exclusivity of the wrongful death statute, (3) the plaintiff’s claim for recklessness “constitute[d] an improper
respondeat superior claim,” and (4) the court improperly
permitted the plaintiff to file the operative complaint
when she failed to comply with Practice Book § 10-60.
For the reasons that follow, we are not persuaded by the
defendant’s foregoing claims.
The following additional procedural history is relevant
to our consideration of these claims. In her original complaint filed on April 30, 2018, the plaintiff alleged that
the defendant’s negligence caused the wrongful death of
the decedent. The plaintiff filed an amended complaint
on November 1, 2019, wherein she again alleged that
the wrongful death of the decedent was caused by the
negligence of the defendant.
On March 3, 2023, the plaintiff filed a request for leave
to amend her complaint to conform to evidence obtained
during discovery. In her proposed amended complaint,
the plaintiff added, inter alia, an allegation that the
defendant failed to provide the decedent “with quality
care and services as required by [§] 19a-550 et seq.” The
plaintiff further proposed an amendment to her prayer
for relief, seeking punitive damages pursuant to § 19a550 (e). On March 14, 2023, the defendant filed an objection to the plaintiff’s request for leave to amend on the
sole ground that it was untimely because, at that time,
immediate objection to the motion or a motion for permission to file a late motion to set aside the verdict, the defendant simply indicated to the plaintiff, upon inquiry for purposes of completing the request for adjudication of that motion, that it did not consent to the plaintiff’s motion for judgment. For the reasons set forth herein, we reject the defendant’s argument.
The defendant further contends that its counsel “repeatedly had attempted to bring the issues to the court’s attention.” As recounted herein, this contention is belied by the record.
Case v. Connecticut Institute for the Blind, Inc.
the trial was scheduled to begin in six weeks. On March
20, 2023, the plaintiff filed a reply to the defendant’s
objection, arguing that “the proposed amendment does
not add any new factual allegations which have not been
a part of this case for the past two to three years [and]
[a]mending the complaint will not cause any delay or
require any additional discovery.” On March 31, 2023,
the defendant filed a memorandum of law in opposition
to the plaintiff’s request for leave to amend, arguing
that the plaintiff’s amendment “seeks to add a different set of operative facts, which do not relate back to
the prior allegation and are therefore time barred” and
“the proposed amendment is prejudicial because it adds
a new claim of recklessness that requires discovery to
determine the basis for it, as well as dispositive motion(s) to determine if it is legally or factually sufficient.” The plaintiff filed a memorandum in reply to the defendant’s
opposition, reiterating the arguments that she asserted in
her reply to the defendant’s first objection, and arguing
that the additional allegations related back to her original claim that the defendant provided the decedent with
substandard medical care and supervision. Citing to our
Supreme Court’s decision in Briere v. Greater Hartford
Orthopedic Group, P.C., 325 Conn. 198, 211, 157 A.3d 70
(2017), the plaintiff argued that a multifactor analysis
should be conducted on a case-by-case basis in order to
determine whether the proposed amendment is permissible as an expansion or amplification of the original
cause of action or whether it is so different as to create
a new and different cause of action that does not relate
back and should be prohibited.17 Applying the factors
set forth in Briere, the plaintiff contended that “[t]he
amended complaint is directed at the same defendants
and alleges conduct that occurred during the same period,
17
Those factors include: (1) do the new allegations involve the same actors; (2) does the amendment allege events that occurred during the same period of time; (3) did the events occur at the same location; (4) did the new conduct result in the same injury; (5) does the amendment allege substantially similar types of behavior by the defendant; and (6) will the amendment require the same type of evidence and experts. Briere v. Greater Hartford Orthopedic Group, P.C., supra, 325 Conn. 211.
Case v. Connecticut Institute for the Blind, Inc.
at the same location, and alleges substantially similar
types of behavior with respect to the substandard care
and supervision afforded to [the decedent]. The plaintiff
will offer the same evidence at trial and will rely upon
the same experts.” On April 9, 2023, the court, Bellis,
J., summarily granted the plaintiff’s request for leave
to amend her complaint.
On June 30, 2023, the defendant filed a motion to strike
the plaintiff’s “claims for recklessness and/or punitive
damages in . . . the plaintiff’s prayer for relief.” The
defendant argued that the plaintiff failed to assert in her amended complaint any allegations of recklessness and,
therefore, there was “no basis to seek punitive damages
for recklessness under § 19a-550 (e).” The defendant further argued that the plaintiff’s claim under § 19a-550 (e)
violated the exclusive remedy provided under § 52-555,
the wrongful death statute. The defendant finally argued
that the plaintiff’s claim under § 19a-550 (e) constituted
“a claim for respondeat superior against an employer for
the reckless and/or intentional conduct of its staff, which is not allowed under Connecticut law.” In response, the
plaintiff filed an objection and memorandum in support
of her objection.
On September 25, 2023, the court, Bellis, J., granted
the defendant’s motion to strike on the ground that the
plaintiff had “not pleaded facts sufficient to support a
claim of recklessness” and there was “therefore no basis
for an award of punitive damages under § 19a-550 (e).”18
On that same day, pursuant to Practice Book § 10-44,
the plaintiff filed a substitute amended complaint.19 On
18
Because that conclusion was dispositive of the defendant’s motion to strike, the court did not address the defendant’s other arguments in support of its motion.
19
Practice Book § 10-44 provides in relevant part: “Within fifteen days after the granting of any motion to strike, the party whose pleading has been stricken may file a new pleading; provided that in those instances where an entire complaint, counterclaim or cross complaint, or any count in a complaint, counterclaim or cross complaint has been stricken, and the party whose pleading or a count thereof has been so stricken fails to file a new pleading within that fifteen day period, the judicial authority may, upon motion, enter judgment against said
Case v. Connecticut Institute for the Blind, Inc.
October 2, 2023, the plaintiff filed a revised amended
complaint.
On October 18, 2023, the defendant filed a motion to
strike the claims for intentional and/or wilful conduct
alleged in the plaintiff’s amended revised complaint.
The defendant argued that the plaintiff had “inserted
facts unilaterally without seeking leave of the court”
and impermissibly had alleged “an entirely new cause of
action.” The defendant also argued that the plaintiff’s
claims of intentional or wilful conduct were beyond the
applicable statute of limitations. The defendant also
renewed its arguments that the plaintiff’s claim under
§ 19a-550 (e) violated the exclusive remedy provided
under § 52-555, the wrongful death statute, and constituted “a claim for respondeat superior against an
employer for the intentional and/or wilful conduct of
its staff, which is not allowed under Connecticut law.”
The plaintiff filed a memorandum of law in opposition
to the defendant’s motion.
On October 28, 2023, the court, Bellis, J., denied the
defendant’s motion to strike. In its written order, the
court first explained that the plaintiff properly filed a
substitute complaint pursuant to Practice Book § 10-44
after the court granted the defendant’s prior motion
to strike and therefore rejected the defendant’s argument that the plaintiff’s new allegations were improper
because they were filed without leave of the court. The
court also explained that a motion to strike is not the
proper vehicle by which to assert a statute of limitations
defense. Additionally, the court rejected the defendant’s
arguments that the plaintiff’s claim under § 19a-550 (e)
violated the exclusivity of the wrongful death statute
and that the plaintiff improperly asserted a respondeat
superior claim based on recklessness.
The defendant thereafter moved for permission to
file a motion for summary judgment on the ground that
the plaintiff’s claims of recklessness and for punitive
party on said stricken complaint, counterclaim or cross complaint, or count thereof. . . .”
Case v. Connecticut Institute for the Blind, Inc.
damages were not filed within the applicable statute of
limitations. The court, Pierson, J., denied that motion.
The court, Pierson, J., also denied a motion in limine filed by the defendant to preclude the plaintiff from presenting evidence in support of her claims of recklessness,
again on the ground that those claims were filed beyond
the applicable statute of limitations.
Although the defendant has not expressly identified
which of the trial court’s rulings recounted previously
that it is challenging on appeal, we glean from its arguments that it is claiming that the court erred in denying
its October 18, 2023 motion to strike. “Because a motion
to strike challenges the legal sufficiency of a pleading and, consequently, requires no factual findings by the trial
court, our review of the court’s ruling . . . is plenary. . . . We take the facts to be those alleged in the complaint
that has been stricken and we construe the complaint
in the manner most favorable to sustaining its legal sufficiency.” (Internal quotation marks omitted.) Spiotti v.
Clarke, 235 Conn. App. 715, 721, 346 A.3d 562 (2025).
A
The defendant first claims that the plaintiff’s allegations of recklessness and request for punitive damages
should not have been permitted because they were raised
beyond the statute of limitations.20 The defendant does
not acknowledge that the trial court never addressed
the merits of its statute of limitations defense because
the defendant did not raise it by the proper procedural
vehicle in a timely manner. Instead, the defendant argues
the defense on its merits. Because the court did not rule
on the merits of the defendant’s statute of limitations
defense, the claim has not been properly preserved for
our review. See, e.g., Hicks v. State, 287 Conn. 421, 442
n.7, 948 A.2d 982 (2008).
20
Notably, the defendant has not claimed that the court improperly denied his motion for permission to file a motion for summary judgment or his motion in limine.
Case v. Connecticut Institute for the Blind, Inc.
B
The defendant next claims that the plaintiff’s claim for
recovery under § 19a-550 (e) is barred by the exclusivity
of the wrongful death statute. In the two paragraphs that
the defendant devotes to this claim in its brief to this
court, the defendant relies, as it did in the trial court,
on Vassalluzzo v. Silver Hill Hospital, Inc., Docket No.
CV-XX-XXXXXXX-S, 2021 WL 1691893 (Conn. Super.
April 1, 2021), in which the court held that, although
“a plaintiff cannot sue under a different statute for
damages directly resulting from the tort that caused the
death, it can ‘advance alternative theories of liability
under the [wrongful death] statute . . . .’ ” Id., *6. The
defendant contends, in conclusory fashion, that the
plaintiff’s claim under § 19a-550 (e) was not simply an
alternative theory of liability but, rather, “created a new, independent cause of action . . . .” The defendant does not address the trial court’s distinction of Vassalluzzo from
the present case; nor does the defendant address its reliance on another Superior Court case, Clemente v. Cedar
Lane Rehabilitation & Health Care Center, LLC, Docket
No. CV-XX-XXXXXXX-S, 2010 WL 1050428 (Conn. Super.
February 11, 2010), in which the plaintiff’s decedent
died while a patient at the defendant health care facility; id., *1; and the court denied a motion to strike the
plaintiff’s § 19a-550 claim on the ground that “it claims
damages under § 19a-550 as an element of a wrongful
death claim under § 52-555 as an element of permissible
damages.” Id., *3.21 The defendant fails to provide any
21
Instead, the defendant cites only to Vassalluzzo, as if it is the settled law on this issue. The court’s citation to Clemente belies such a position. Indeed, in Gilbert v. Nuvance Health, Inc., Docket No. CV-XX-XXXXXXX-S, 2024 WL 3422737 (Conn. Super. July 9, 2024), the court stated: “[T]his court cannot agree there is or should be a blanket prohibition against a plaintiff pursuing, on properly plead[ed] facts, both a death claim and a patient’s bill of rights claim in the same case.” Id., *3. We nevertheless note, as the plaintiff points out, that this issue was squarely addressed by our Supreme Court in Gionfriddo v. Avis Rent A Car Systems, Inc., 192 Conn. 280, 472 A.2d 306 (1984), in which the court held that the wrongful death statute permitted an award of treble damages under General Statutes § 14-295. Id., 292.
Case v. Connecticut Institute for the Blind, Inc.
analysis as to why the plaintiff’s claim under § 19a-550
(e) constituted a separate, independent cause of action
versus an alternative theory of liability, or an element of permissible damages under the wrongful death statute.
“[W]here the defendants have not addressed the dispositive basis for the court’s rejection of their . . . claim, we decline to review the defendants’ claim as inadequately
briefed.” Metropolitan District v. Mott, 235 Conn. App.
449, 479–80, 346 A.3d 1064 (2025), citing Sicignano v.
Pearce, 228 Conn. App. 664, 692, 325 A.3d 1127 (2024)
(declining to review plaintiff’s claim as inadequately
briefed when plaintiff failed to address dispositive bases
of court’s decision), cert. denied, 351 Conn. 908, 330
A.3d 881 (2025).
Because the defendant failed to address the dispositive
basis for the court’s conclusion that the plaintiff’s claim under § 19a-550 (e) was not precluded by the exclusivity
of the wrongful death statute, its brief is inadequate for
us to conduct any meaningful review of this claim.
C
The defendant next claims that the court should have
stricken the plaintiff’s claims of recklessness, and her
associated claim for punitive damages, because they
constituted an improper claim for vicarious liability. In
rejecting this claim, the trial court reasoned, inter alia: “[The defendant] has provided no case law establishing
that a plaintiff may not assert a claim for recklessness
[and punitive damages brought against a defendant
health care center pursuant to] § 19a-550 (e) . . . . A
health care agency such as [the defendant] can only act
through it agents. . . . Considering that plaintiffs are
limited to bringing a § 19a-550 action against only an
enumerated facility . . . construing § 19a-550 (e) in the
manner advanced by [the defendant] would effectively
preclude any plaintiff from stating a claim for recklessness pursuant to § 19a-550 (e).” (Citations omitted.)
On appeal, aside from citing to case law for the proposition that an employer cannot be held liable for the
acts of its employees that are not in furtherance of the
Case v. Connecticut Institute for the Blind, Inc.
employer’s business, the defendant argues: “While there
was no evidence at trial that [the defendant’s] staff acted in a way that was intended to injure the decedent, had
there been such evidence, the employee would not be
serving [the defendant] as employer (and there was no
evidence to suggest otherwise). As a result, [the defendant] cannot be vicariously liable in this case for any
intentional or reckless conduct of its employees.” These
two preceding sentences constitute the entirety of the
defendant’s analysis of this claim. The defendant provides no analysis of how the legal principles that it has
cited apply to this case, specifically, how its employees were not acting in furtherance of its business. See,
e.g., State ex rel. Dunn v. Burton, 229 Conn. App. 267,
304, 327 A.3d 982 (2024) (“[t]he parties may not merely
cite a legal principle without analyzing the relationship
between the facts of the case and the law cited” (internal
quotation marks omitted)). In the absence of any such
analysis, this claim has not been adequately briefed, and
we therefore decline to review it.
D
The defendant finally claims that the court “should not
have allowed [the plaintiff to file] the amended revised
complaint.” Specifically, the defendant argues, as it
did in its motion to strike,22 that “[w]hile amendments
are within the sound discretion of the trial court, the
plaintiff here did not even move to amend her complaint
(with respect to the amended revised complaint), thus
failing to invoke the court’s authority in the first place.” In so arguing, the defendant cites Practice Book § 10-60,
which provides that a party may amend his or her pleadings only by order of the judicial authority, consent of
the adverse party or filing a request for leave to amend.
The court rejected the defendant’s argument, explaining
that, “after the court issued its decision on September
22
Although the heading of this section of the defendant’s brief seems to indicate a challenge to the court’s granting of the plaintiff’s request for leave to amend her complaint, the substance of the defendant’s argument clearly indicates that the defendant is challenging the court’s denial of its motion to strike based on this same argument.
Case v. Connecticut Institute for the Blind, Inc.
25, 2023 . . . [granting the defendant’s] motion to strike, the plaintiff properly and timely filed a substituted complaint as permitted by Practice Book § 10-44, adding
count two with more detailed allegations.” (Citation
omitted.) Indeed, § 10-44 permits a party whose pleading has been stricken to file a substitute pleading. The
defendant has not challenged the court’s determination
that the plaintiff’s amended revised complaint was a
proper substituted complaint under § 10-44. Because the
defendant has not challenged the basis for the court’s
rejection of this claim, it has not adequately briefed it.
See Sicignano v. Pearce, supra, 228 Conn. App. 692.
The judgment is affirmed.
In this opinion the other judges concurred.