[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]MEMORANDUM OF DECISION ON MOTION FOR SUMMARY JUDGMENT The defendants Helen R. Mullen and Connecticut National Bank, Co. executors of the estate of Morris B. Hogan move for summary judgment.

This is an action brought by a private party against the Board of Selectmen of the Town of Burlington claiming the appointment of a committee to be appointed to determine whether its sought after improvements to the public road in said town, Burlington, will be of common convenience and necessity, and, if so found, to assess special benefits accruing to each person, as provided under General Statutes13a-63.

The improvements were made by and at the expense of the plaintiff prior to the Selectmen acting on the plaintiff's application, which was ultimately denied by the Selectmen. The improvements were made to carry forward with a subdivision, which could not have proceeded without said improvements, per order of the Burlington Inland Wetlands Commission, dated June 26, 1991. CT Page 7592

This court, on September 23, 1993, granted this defendant's motion to strike the Prayers for Relief on the basis that General Statutes 13a-63 is inapplicable where improvements have already been made, and that one may seek relief from the court under this statute only prior to the lay out of the alteration of the highway.

The plaintiff does not file a brief, affidavit, or evidence in opposite to this motion, nor did he seek to or take the opportunity to appear at oral argument.

The allegation of the complaint may be tested as to legal sufficiency after the pleadings are closed by motion for summary judgment. See Boucher Agency, Inc. v. Zimmer,160 Conn. 404, 409 (1971). The decision of this court September 23, 1993 striking the prayer for relief determines properly that "the relief sought could not be legally awarded to the plaintiff." There being no relief alleged to be capable of being granted (see Deveau v.Skidmore, 47 Conn. 19, 20), no amendment sought, and no controverted evidence to support the cause of action the motion for summary judgment of these defendants is granted.

L. Paul Sullivan, J.