Gyadu v. Perlstein Ayars, No. Cv94-0121751s (Jan. 26, 1999)

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]

MEMORANDUM OF DECISION The plaintiff Ben F. Gyadu, appearing pro se, has applied pursuant to Practice Book § 63-6 for a waiver of fees and costs for an appeal to the Appellate Court from the granting of the defendant's motion for summary judgment (Gill, J.) After a hearing at which the plaintiff testified, the court finds that the plaintiff is indigent. The second issue to be decided is whether the plaintiff "is entitled to an appeal." Practice Book § 63-6; Caron v. Adams, 33 Conn. App. 673, 693 (1994). This requires a finding that the appeal is nonfrivolous, that the likelihood of success is more than slight. Ferrucci v. Davidson, 22 Conn. Law Tribune No. 19, May 12, 1986, (Barnett, J.).

The plaintiff has set forth as part of his application two issues that he wishes to raise on appeal. The first issue is that the court granted the defendant's motion for summary judgment without affording the plaintiff oral argument on the motion. This issue is nonfrivolous in that oral argument is a matter of right on a motion for summary judgment. Practice Book § 11-18. The second issue is that the court granted summary judgment while a request to revise was pending and the pleadings were therefore still open. Practice Book § 17-44 permits a motion for summary judgment to be filed "at any time." The court does not find this issue to be nonfrivolous.

Because the plaintiff has proven his indigency and has set forth one nonfrivolous issue to be raised on appeal, his application for a waiver of fees and costs on appeal is granted.

VERTEFEUILLE, J.