DocketNumber: No. CV99-0337189 S
Citation Numbers: 2000 Conn. Super. Ct. 4718
Judges: MORAGHAN, JUDGE.
Filed Date: 3/15/2000
Status: Non-Precedential
Modified Date: 4/18/2021
Shevlin argues that the court cannot grant the defendant's motion to set aside the default absent an affidavit from the defendant presenting facts "tending to show the (defendant) had been making good faith efforts to ascertain information that would enable him to make a good faith answer to plaintiffs complaint." (Plaintiff's memorandum, January 24, 2000.) In support of his argument, he contends that the defendant has produced no evidence upon which this court may set aside the default and that even if such evidence was produced, it would have to be presented under oath or in affidavit form pursuant to Practice Book §
Shafran argues that Shevlin is erroneously asking the court to subject the defendant's motion to set aside a default, in which judgment has not entered, to a standard reserved for setting aside a default judgment. He further asserts, pursuant to Practice Book §
Because judgment has not been rendered regarding the default in the present action, the defendant's motion is governed by Practice Book §
Shevlin relies on Segan v. Allstate Ins., 18 Conn.L.Rptr. No. 5, pp. 166, 167, where the defendant submitted an affidavit in conjunction with his motion to set aside a default, the affidavit, however, was not required by the court or pursuant to the Practice Book. In that case, the court, Silbert, J., stated that "[w]hile many delays are unavoidable and even necessary, those delays that are caused by a deterioration of professional courtesy and indifference to its impact on opposing counsel and parties, especially when accompanied by brinkmanship of the sort displayed in this case, need not be tolerated by litigants and should not be condoned by courts." Segan v. AllstateIns., supra.
A defendant is not required to file an oath or affirmation where judgment has not been rendered on a default. Therefore, the court may base its determination of whether to grant the motion to set aside the default on those terms which it deems appropriate to impose given the "totality of the circumstances." See Practice Book §
The defendant's delay in filing an answer was based on the time it took the claim to be processed by his malpractice carrier and for the malpractice carrier to retain an attorney to represent the defendant, which demonstrates the defendant's lack of contumacy. Nor has the plaintiff presented evidence to counter the defendant's argument that the delayed pleading has not prejudiced the plaintiffs case. The court finds that the defendant's delay in pleading was unintentional, the result of circumstances, and not due to any lack of professionalism, lack of courtesy or indifference. The "brinkmanship," of the defendant in Segan v. Allstate Ins., supra, has not occurred here.
The defendant's motion to set aside the default is, accordingly, granted. Moraghan, J.