669 Atlantic St. v. Atlantic-Rockland, No. Cv90 0110249 S (Aug. 11, 1993)

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] MEMORANDUM OF DECISION The plaintiff has filed a motion for summary judgment claiming that it is entitled to judgment because there are no genuine issues of material fact and because as a matter of law judgment should enter in its favor. The defendant challenges the plaintiff's right to attack its special defenses in this fashion relying on the language of P.B. 379 which makes the summary judgment rules "applicable to counterclaims and cross-complaints" and of course, complaints.

It is undoubtedly true that 379 is silent as to special CT Page 7022 defenses. This is so because a ruling on a particular special defense may not be dispositive of the complaint. Where, however, a plaintiff challenges both the genuineness of the issues of material fact and the legal sufficiency of the special defense(s) and claims judgment on its complaint, a motion for summary judgment is proper and should be recognized.

On a previous date, the parties consented to referring this matter for trial to an attorney trial referee pursuant to Chapter 15 of the Practice Book. In fact, the parties have been given a date certain for trial of October 12, 1993. The court believes that the issues framed by the motion for summary judgment are the very issues which will come up at trial so it would serve judicial economy and the ends of justice if the matter were to be referred to the attorney trial referee at this point in time. Accordingly, the motion for summary judgment is hereby referred to the attorney trial referee for a report in accordance with P.B. 430.

MOTTOLESE, J.