Neary v. McConoloque, No. Cv90 0112673 S (Mar. 13, 1992)

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] MEMORANDUM OF DECISION The plaintiff has moved for a Summary Judgment with respect to CT Page 2417 the complaint which alleges violations of the Home Improvement Act, General Statutes Section 20-429, and seeks a refund of funds paid to the defendant contractor.

In February 4, 1992, the defendant filed an affidavit and memorandum in response to the Motion for Summary Judgment. At that time, the plaintiff also filed, pursuant to Practice Book Section 176, a request for leave to amend his answer by asserting additional special defenses so as to include allegations of bad faith on the part of the plaintiff as well as due process and equal protection constitutional claims. Because no objection has been filed by the plaintiff within fifteen days from the day of filing of the request, the amendment is deemed to have been filed by the consent plaintiff. Accordingly, the pleadings are not closed as between the parties as required by Practice Book Section 379. The Summary Judgment is therefore denied for that reason.

The court has however reviewed the claims of the parties and would be inclined, in any event, to deny the Motion for Summary Judgment on the basis the Home Improvement Act does not create an independent cause of action as indicated by various decisions of the Superior Court and upon the lack of clarity of the law as evidenced by Barrett Builders v. Miller 215 Conn. 316, 327 n. 5.

The Motion for Summary Judgment is therefore denied for the reason stated above.

RUSH, JUDGE