author: WEST, J.

text:
    EDWARD TANG v. MATEK BOU-FAKHREDDINE
    (AC 21539)
    Flynn, West and Hennessy, Js.

      Argued October 18, 2002
    officially released March 4, 2003

      Edward Tang, pro se, the appellant (jplaintiff).
   Opinion

WEST, J.

The pro se plaintiff, Edward Tang, appeals from the judgment of the trial court, rendered following a hearing in damages, after the defendant, Malek Bou-Fakhreddine, was defaulted for failing to attend a pretrial conference. On appeal, the plaintiff claims that the court improperly (1) concluded that he failed to meet his burden of proof on those counts of his amended complaint alleging violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq., reckless indifference and unintentional infliction of emotional distress, (2) failed to award $5855 in damages on the basis of a finding that he had testified that part of that sum was duplicative of other damages awarded, (3) failed to award prejudgment interest, (4) failed to award damages for negligence, (5) precluded him from submitting affidavits as evidence of damages for inconvenience, mental duress, suffering and anguish, and (6) failed to award $286.85 and $512 for storm windows and electrical work, respectively. We reverse in part the judgment of the trial court.

The following facts are relevant to our disposition of the plaintiffs appeal. In 1994, the plaintiff entered into a written contract with the defendant for certain renovations to the plaintiffs residence. Under that contract, the defendant, a registered home improvement contractor, was to add a full dormer to the rear of the plaintiffs residence. To ensure that the plans and specifications for that work complied with the local building codes, the parties attended a number of meetings with the Fairfield building department. Those meetings eventually culminated in the issuance of a building permit following the submission and approval of plans and specifications dated September 4, 1994.

The approved building plans specified, inter alia, that the dormer structure was to be supported by cantilevered beams eight feet in length, with a two foot overhang beyond the existing footprint of the residence. In contravention of those specifications, and without notice either to the plaintiff or to the building department, the defendant installed cantilevered beams six feet in length. In the course of installing those beams, the defendant caused significant damage to the building’s first floor ceiling.

The plaintiff first filed a complaint in this action on May 20, 1996. The plaintiffs fifth, and final, amended complaint was filed on April 22,1999. In that complaint, the plaintiff alleged breach of contract, violation of CUTPA, reckless indifference, unintentional infliction of emotional distress and negligence.

On April 23, 1999, the court rendered a judgment of default against the defendant for his failure to attend a pretrial conference. On October 27, 2000, following a hearing in damages, the court issued its memorandum of decision, awarding the plaintiff $21,291.35 on the basis of the negligence and breach of contract claims. The court found, however, that the plaintiff had not satisfied his burden of proof with respect to his claims of fraudulent concealment, recklessness, unintentional infliction of emotional distress and CUTPA. The plaintiff sought an articulation of the court’s memorandum of decision. This court ordered the trial court to articulate why it had not awarded the plaintiff damages for certain items and services, and why it had not awarded prejudgment interest. The court articulated its decision by way of an amended memorandum of decision in which it awarded an additional $1780 to the plaintiff for some of the remaining items. The court, however, affirmed its previous denial of prejudgment interest. This appeal followed.

I

We first address the plaintiffs claim that the court improperly concluded that he had failed to meet his burden of proof with respect to those counts of his amended complaint alleging a violation of CUTPA, reckless indifference and unintentional infliction of emotional distress. Our review of the legal sufficiency of pleadings is plenary. Saunders v. Stigers, 62 Conn. App. 138, 142, 773 A.2d 971 (2001).

“A default admits the material facts that constitute a cause of action . . . and entry of default, when appropriately made, conclusively determines the liability of a defendant.” (Citation omitted; internal quotation marks omitted.) Skyler Ltd. Partnership v. S.P. Douthett & Co., 18 Conn. App. 245, 253, 557 A.2d 927, cert. denied, 212 Conn. 802, 560 A.2d 984 (1989). If the allegations of the plaintiffs complaint are sufficient on their face to make out a valid claim for the relief requested, the plaintiff, on the entry of a default against the defendant, need not offer evidence to support those allegations. Carothers v. Butkin Precision Mfg. Co., 37 Conn. App. 208, 209, 655 A.2d 799 (1995). Therefore, the only issue before the court following a default is the determination of damages. Id. A plaintiff ordinarily is entitled to at least nominal damages following an entry of default against a defendant in a legal action. Melfi v. Danbury, 70 Conn. App. 679, 691, 800 A.2d 582, cert. denied, 261 Conn. 922, 806 A.2d 1061 (2002).

We turn now to an examination of each count to determine whether the allegations of the plaintiffs complaint are sufficient on their face to make out a valid claim for the relief requested.

A

The CUTPA Claim

In the present case, the plaintiffs complaint alleges CUTPA violations based on the defendant’s installation of insufficiently long cantilever beams in violation of the approved design specifications, concealment of the defective installation of those beams and failure to supervise properly and to pay his subcontractors, resulting in incomplete and unfinished work. The complaint also alleges that the contract provided by the defendant violates public policy in that it fails to meet the requirements of the Home Improvement Act, General Statutes § 20-418 et seq. The complaint alleges that the contract did not contain the starting and completion dates, notice of the homeowner’s cancellation rights or the defendant contractor’s address.

General Statutes § 20-429 (a) provides in relevant part: “No home improvement contract shall be valid or enforceable against an owner unless it: (1) Is in writing, (2) is signed by the owner and the contractor, (3) contains the entire agreement between the owner and the contractor, (4) contains the date of the transaction, (5) contains the name and address of the contractor, (6) contains a notice of the owner’s cancellation rights in accordance with the provisions of chapter 740, (7) contains a starting date and completion date, and (8) is entered into by a registered salesman or registered contractor. . . .” Pursuant to General Statutes § 20-427 (c), any violation of the Home Improvement Act is deemed to be an unfair or deceptive trade practice and constitutes a per se violation of CUTPA. Meadows v. Higgins, 49 Conn. App. 286, 296, 714 A.2d 51 (1998), rev’d on other grounds, 249 Conn. 155, 733 A.2d 172 (1999).

The material facts regarding the deficiencies of the construction contract as set forth in the plaintiffs fifth amended complaint are sufficient to establish a violation of the Home Improvement Act and, consequently, are also sufficient to justify an award of damages pursuant to CUTPA. See Kronberg Bros., Inc. v. Steele, 72 Conn. App. 53, 59-60, 804 A.2d 239 (defective notice of cancellation rights in contract sufficient for award under CUTPA), cert. denied, 262 Conn. 912, 810 A.2d 277 (2002).

Once a violation of CUTPA has been established, evidence that the defendant has acted with reckless indifference to the rights of the plaintiff or has committed an intentional and wanton violation of those rights is a necessary prerequisite to the award of punitive damages. Gargano v. Heyman, 203 Conn. 616, 622, 525 A.2d 1343 (1987); Tanpiengco v. Tasto, 72 Conn. App. 817, 821, 806 A.2d 1080 (2002). Such an award, however, is discretionary, and “the exercise of such discretion will not ordinarily be interfered with on appeal unless the abuse is manifest or injustice appears to have been done.” Gargano v. Heyman, supra, 622.

The plaintiffs allegations in support of his CUTPA count consist of little more than a recitation of the facts establishing the CUTPA violation, as set forth in the previous count of the complaint, with the necessary boilerplate characterization of the defendant’s actions as “outrageous,” “intentional” or “wilful” appended to each paragraph of the count. Nevertheless, in light of the defendant’s default, they are sufficient to establish liability for the purpose of awarding punitive damages. Accordingly, we conclude that the court abused its discretion in failing to award at least nominal damages under CUTPA for the defendant’s violations of the Home Improvement Act, and his wilful and wanton violation of the plaintiffs contractual rights.

B

Unintentional Infliction of Emotional Distress

To prevail on a claim of negligent infliction of emotional distress, the plaintiff must demonstrate that the defendant should have realized that his conduct involved an unreasonable risk of causing emotional distress and that such distress, if it were caused, might result in bodily harm or illness. Shaw v. Shell Oil Products Co., 119 F. Sup. 2d 62, 70 (D. Conn. 2000); Montinieri v. Southern New England Telephone Co., 175 Conn. 337, 341, 398 A.2d 1180 (1978). We conclude that the allegations of the plaintiffs complaint are sufficient on their face to make out a valid claim of negligent infliction of emotional distress.

Count four of the plaintiffs operative complaint sets forth his claim of unintentional infliction of emotional distress and contains the following recitation:

“33. The conduct of the Defendant has caused the Plaintiff and his family distress of mind, mental suffering arid or mental anguish in one or more of the following ways:

“A. As a direct result of the contract not containing a completion date, the Plaintiff was mentally oppressed with thoughts of being at the mercy of the Defendant, especially since he was paid ahead of schedule. The Plaintiff made the last payment on or about December 20, 1994 after the Defendant cited the need for Christmas money and requested it as a favor.

“B. As a direct result of the Defendant’s defective cantilever installation and concealment thereof, the Plaintiff was left in mental shock and in a despairing mental state of betrayal of trust and disbelief of [the defendant’s] conduct in installing the defective cantilevers, concealment and refusal [to] correct the defective installation.

“C. As a direct consequence of the Defendant’s breaches in contract, promises and refusal to correct his misdoings, the Plaintiff was mentally angered, and bore mental disillusioning and hopeless thoughts of ever completing the addition.

“D. As a further consequence of the Defendant’s conduct, the Plaintiff was mentally stressed with burdensome thoughts of obtaining finances to correct and complete [and] finish the addition he had contracted and paid the Defendant to perform.

“E. The Plaintiff has suffered utter mental frustration in his attempts to hire contractors, most of whom declined to give quotes and the work to avoid “cleaning up another contractor’s dirty work” and perceived involvement in legal actions.

“F. The Plaintiff has been mentally burdened with daily thoughts of having to work far beyond what he expected to obtain help to correct [and] to complete the addition. This had and has caused the Plaintiff to worry daily about how he was to finance completing the addition.

“G. The Defendant’s conduct has caused much mental upheaval, disagreements and discord between the Plaintiff and his family.

“H. As a direct result of the Defendant’s conduct, the Plaintiff has been embarrassed before his neighbors, friends and acquaintances with the result that he and his family have been isolated socially in not being able to invite people over to the Plaintiffs house.

“I As a direct result of the Defendant’s conduct, the Plaintiff has been left in an oppressed state of mind between suffering utter mental frustration with contractors who declined the work to complete the addition and distrusting any contractor at all.

“34. The Defendant knew or should have reasonably foreseen from the facts and experiences known to him that his conduct could cause and or create an unreasonable risk of distress of mind, mental suffering and mental anguish that could cause physical harm or illness.

“35. The conduct of the Defendant has caused, is causing and will in the future cause the Plaintiff distress of mind, mental suffering and mental anguish.

“36. As a farther result of the Defendant’s conduct, the Plaintiff (and his family) have been, is and will in the future be grossly inconvenienced.”

Those allegations exhaustively set forth the basis for the plaintiffs claim of emotional distress and allege that the defendant should have realized that his conduct involved an unreasonable risk of causing emotional distress and that such distress, if it were caused, might result in bodily harm or illness. Because the allegations of the plaintiffs complaint are sufficient on their face to make out a valid claim for the unintentional infliction of emotional distress, the plaintiff was entitled to at least nominal damages on that claim in light of the defendant’s default. See Melfi v. Danbury, supra, 70 Conn. App. 691. Accordingly, we reverse the court’s determination that the plaintiff failed to sustain his burden of proof on the unintentional infliction of emotional distress claim.

II

We next address the plaintiffs claim that the court improperly failed to award $5855 in damages on the ground that he had testified that part of that sum was duplicative of other damages that were awarded, and because he had not provided any evidence allowing the court to assess accurately what portion of the total was duplicative and what portion was not duplicative. We agree with the plaintiff.

This court will not disturb the trial court’s factual findings unless they are clearly erroneous. See Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980). “A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) Premier Capital, Inc. v. Grossman, 68 Conn. App. 51, 59, 789 A.2d 565, cert. denied, 260 Conn. 917, 797 A.2d 514 (2002).

The court claimed to have based its determination that the sum was duplicative on the testimony of the plaintiff himself. After reviewing the record and the transcript of the hearing in damages, we find no evidence to support the court’s conclusion that any portion of the work for which the plaintiff paid $5855 to Gregory D. Jones, a carpenter, was duplicative of work contained in the estimate provided by Robert F. Moffitt, a residential contractor. The testimonial evidence, as well as the documentary evidence, supports the conclusion that the work performed by Jones supplemented rather than duplicated the work estimated by Moffitt. We conclude, therefore, that the court’s determination was clearly erroneous.

The record shows that the plaintiff entered into evidence a written estimate prepared by Moffitt, detailing the work required to correct the defective installation of the cantilevered beams. The majority of the work covered by Moffitt’s estimate was directly related to the installation of the cantilever beams themselves. The only work included in Moffitt’s estimate that did not directly involve the cantilever beams was the removal and replacement of the ceiling insulation and Sheetrock in three affected rooms that were damaged as a result of the defendant’s actions, and the painting of the ceilings in those rooms.

The plaintiff also entered into evidence copies of the checks used to pay Jones for the work that he performed at the plaintiffs residence. There was no evidence that any of the work performed by Jones involved either the cantilever beams or work on the ceilings of the three rooms detailed in Moffitt’s estimate. Each of the checks written to Jones bears a handwritten notation describing the general nature of the work performed. Six of those checks, totaling $3240, were, apparently, payment for various finish work performed by Jones, including work on the trim and doors, and on an upstairs closet. One check, for $125, indicates that it was payment for the installation of the gutter. The three remaining checks, totaling $2490, indicate that they were in payment for work involving wallboard and drywall. Thus, those checks provide no evidence that the work performed by Jones duplicated the work detailed in the Moffitt estimate.

In addition to the documentary evidence, the plaintiff testified that he incurred damages beyond those covered by Moffitt’s estimate. At the hearing in damages, the following colloquy occurred:

“The Court: Well, I’m a little bit confused, Mr. Tang, because we have an estimate here by [Moffitt,] who just testified, who talks about the removing and disposing of ceiling insulation and Sheetrock in [the plaintiffs son’s] room . . . white paint.

“[Plaintiff]: Okay.

“The Court: Now, does that cover everything that had to be done or doesn’t it? Now, what — what you’re telling me now, is that in addition to this work?

“[Plaintiff]: There’s more work on top of that, yes.

“The Court: All right.

“[Plaintiff]: And it is outlined in the summary of damages, which is in there, too.”

The sole testimony regarding the payments to Greg Jones consisted of a short colloquy:

“The Court: All right. And who is Greg Jones?

“[Plaintiff]: Greg Jones was another carpenter who did much of the work in terms of Sheetrocking, the trim on the windows, things like that that were left undone.

“The Court: And that was not included in the bid— in the estimate that—

“[Plaintiff]: It comes after that. It come after the summary.”

The clear import of that exchange is that the work performed by Jones was not included in the estimate provided by Moffitt. Thus, we can find no basis in the record for the court’s conclusion that the plaintiff testified that the work at issue was duplicative. We conclude, therefore, that it was clearly erroneous for the court to have made the factual finding that part of the $5855 paid to Jones was duplicative of work covered by Moffitt’s estimate, based as that finding was on the court’s perception of the substance of the plaintiffs testimony.

Ill

We next address the claim that the court improperly denied the plaintiff prejudgment interest pursuant to General Statutes § 37-3a. The court concluded that prejudgment interest pursuant to § 37-3a was not warranted because the claimed damages, although arising from a breach of contract, “are similar to damages in a personal injury claim in negligence where a party is seeking to be made whole for the loss caused by another.” We agree with the court.

“The allowance of prejudgment interest as an element of damages is an equitable determination and a matter lying within the discretion of the trial court.” (Internal quotation marks omitted.) Killion v. Davis, 69 Conn. App. 366, 375, 793 A.2d 1237, cert. denied, 260 Conn. 931, 799 A.2d 295 (2002). Therefore, we generally review the court’s denial of prejudgment interest for an abuse of discretion. See id. In concluding that prejudgment interest was not warranted, however, the court relied on its interpretation of Foley v. Huntington Co., 42 Conn. App. 712, 742, 682 A.2d 1026, cert. denied, 239 Conn. 931, 683 A.2d 397 (1996). Because the court relied on a legal conclusion in determining that the prejudgment interest statute did not apply to the present facts, our review of the court’s conclusion as to the applicability of the statute to the facts is plenary.

General Statutes § 37-3a provides in relevant part that “interest at the rate of ten per cent a year, and no more, may be recovered and allowed in civil actions ... as damages for the detention of money after it becomes payable. . . .” “[P]rejudgment interest is awarded in the discretion of the trial court to compensate the prevailing party for a delay in obtaining money that rightfully belongs to him. . . . The detention of the money must be determined to have been wrongful. ... Its detention can only be wrongful, however, from and after the date on which the court, in its discretion, determines that the money was due and payable.” (Citations omitted; internal quotation marks omitted.) Northrop v. Allstate Ins. Co., 247 Conn. 242, 254-55, 720 A.2d 879 (1998).

The court cited Foley for the proposition that prejudgment interest pursuant to § 37-3a is not warranted in cases for breach of contract in which the damages “are similar to damages in a personal injury claim in negligence where a party is seeking to be made whole for the loss caused by another.” Foley v. Huntington Co., 42 Conn. App. 742. The court also found support for its denial of prejudgment interest in Paulus v. LaSala, 56 Conn. App. 139, 147, 742 A.2d 379 (1999), cert. denied, 252 Conn. 928, 746 A.2d 789 (2000), in which the court reiterated that “[i]t has long been recognized that there is no right to interest on a disputed demand unless a contact or a statute so provides.” Id.

Foley involved a breach of contract for the conveyance of a nursing home facility and the 3.74 acres of the tract on which it was located. Although the plaintiff had tendered $155,000 to the defendant as a deposit for the property, the court found, on the basis of testimony presented at trial, that the defendant had offered to return the deposit and that the plaintiff had refused to accept the deposit. See Foley v. Huntington Co., supra, 42 Conn. App. 737. On that basis, the court concluded that the $155,000 deposit could not be the subject of prejudgment interest for a “ ‘detention of money after it becomes payable’ ” pursuant to § 37-3a. Id. The court then considered whether § 37-3a was applicable to the remaining damages claimed by the plaintiff. The court concluded that “[t]he damages for the breach of contract in this case are similar to damages in a personal injury claim in negligence where a party is seeking to be made whole for the loss caused by another. The damages claimed and awarded to the plaintiff were for the loss of the benefit of his bargain. In this case, neither party claimed to have performed fully or substantially under the contract so as to invoke the other’s obligation to pay a liquidated sum or to provide services under the contract.” Id., 742.

The plaintiff argues that the present case is distinguishable from Foley because he does not seek damages for the “loss of the benefit of his bargain,” but rather pursues such damages as will “place him in the same position that he would have been in had the contract been performed.” We find that to be a difference without a distinction. Indeed, those phrases are merely alternative formulations of the same substantive standard. See, e.g., Keefe v. Norwalk Cove Marina, Inc., 57 Conn. App. 601, 610, 749 A.2d 1219 (“ ‘[contract damages are ordinarily based on the injured party’s expectation interest and are intended to give him the benefit of the bargain by awarding a sum of money that will, to the extent possible, put him in as good a position as he would have been in had the contract been performed’ ”), cert. denied, 254 Conn. 903, 755 A.2d 881 (2000).

Prejudgment interest pursuant to § 37-3a is appropriate only where the essence of the action itself involves the wrongful withholding of money due and payable to the plaintiff. The prejudgment interest statute does not apply when the essence of the action is the recovery of damages to compensate a plaintiff for injury, damage or costs incurred as a result of a defendant’s negligence. It ordinarily does not apply to contract actions in which the plaintiff is not seeking the recoveiy of liquidated damages or the recovery of money advanced under a contract and wrongfully withheld after a breach of that contract. The prejudgment interest statute does not apply to such actions because they do not advance claims based on the wrongful withholding of money, but rather seek damages to compensate for losses incurred as a result of a defendant’s negligence. Moreover, such damages are not considered due and payable until after a judgment in favor of the plaintiff has been rendered.

It is true that in contrast to Foley, the plaintiff in the present case substantially performed his contractual obligations by paying a significant portion of the contract price. The plaintiff paid the defendant $23,299 of a total contract price of $25,150. In his complaint, however, the plaintiff did not claim that the defendant was wrongfully withholding that $23,299. The plaintiff did not seek the return of the sum paid to the defendant pursuant to the contract. Rather, his complaint sought damages for the costs necessary to correct the damage proximately caused by the defendant’s negligence. Accordingly, the court correctly applied the logic and reasoning of Foley to the facts of the present case. We conclude, therefore, that the court did not abuse its discretion in denying the plaintiff prejudgment interest pursuant to § 37-3a.

IV

The plaintiff also claims that the court improperly failed to award damages for negligence. The plaintiff specifically objects to the court’s failure to award any noneconomic or general damages for “gross inconvenience,” “distress of mind, mental suffering and or mental anger.”

Although not pleaded specifically as a claim alleging emotional distress, the language of the plaintiffs claim suggests that it is derived from his claim alleging the unintentional infliction of emotional distress. We determined in part IB that the plaintiff had set forth sufficient allegations to establish the defendant’s liability for unintentional infliction of emotional distress and that as a consequence, the plaintiff was entitled to at least nominal damages on that claim. In light of that conclusion, an additional award of noneconomic damages to the plaintiff for the defendant’s negligence would be improper because it would result in a double award for the same alleged injury. See Bonan v. Goldring Home Inspections, Inc., 68 Conn. App. 862, 869-70, 794 A.2d 997 (2002); Jonap v. Silver, 1 Conn. App. 550, 561, 474 A.2d 800 (1984) (despite invoking separate theories of liability, plaintiff “not entitled to recover twice for the same elements of damage such as mental distress . . . growing out of the same transaction, occurrence or event”). Accordingly, we conclude that the court properly declined to award noneconomic damages to the plaintiff under the generalized negligence count.

V

The plaintiff also claims that the court improperly precluded him from submitting affidavits as evidence of damages for inconvenience and mental duress, suffering and anguish. We disagree.

“It is well settled that [t]he trial court’s ruling on the admissibility of evidence is entitled to great deference. . . . [T]he trial court has broad discretion in ruling on the admissibility ... of evidence. . . . [Its] ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion. . . . We will make every reasonable presumption in favor of upholding the trial court’s ruling, and only upset it for a manifest abuse of discretion.” (Emphasis in original; internal quotation marks omitted.) White v. Westport, 72 Conn. App. 169, 172, 804 A.2d 1011 (2002). Moreover, “[i]t is a fundamental rule of appellate procedure in the review of evidential rulings, whether resulting in the admission or exclusion of evidence, that an appellant has the burden of establishing that there has been an erroneous ruling which was probably harmful to him.” (Internal quotation marks omitted.) Cadle Co. v. Errato, 71 Conn. App. 447, 466, 802 A.2d 887, cert. denied, 262 Conn. 918, 812 A.2d 861 (2002).

In the present case, the plaintiff sought to introduce the affidavits of three of his neighbors to support his claims regarding the change in his behavior as a result of the defendant’s negligence. The court prohibited the plaintiff from submitting the affidavits, declaring that their admission would be unfair to the defendant because he would be unable to cross-examine the affiants. The court also stated that the admission of the affidavits would be merely cumulative.

The plaintiff’s argument elides the reasoning of the court in excluding the affidavits. A party to a civil action has the right to cross-examine witnesses on the amount of damages. See Urich v. Fish, 261 Conn. 575, 585, 804 A.2d 795 (2002) (admission of hearsay estimates deprived plaintiff opportunity to cross-examine on issue of damages); Ann Howard’s Apricots Restaurant, Inc. v. Commission on Human Rights & Opportunities, 237 Conn. 209, 224, 230, 676 A.2d 844 (1996). The court was concerned primarily that the nature of the evidence was such that the defendant would be unable to cross-examine the witnesses in light of the nondisclosure of that evidence. As the court itself made clear, prior disclosure would not have been necessary had the plaintiff called the affiants to testify in person.

We also agree with the court’s conclusion that the affidavits were merely cumulative of the plaintiffs testimony. “It is within the court’s discretion to exclude cumulative evidence.” State v. Rodriguez, 60 Conn. App. 398, 405, 759 A.2d 123 (2000), cert. denied, 255 Conn. 928, 767 A.2d 103 (2001). The plaintiff testified regarding the mental distress that he suffered as a result of the defendant’s negligence. We are not persuaded that the admission of affidavits containing third party observations of the plaintiffs alleged mental distress would have aided the court in determining the appropriate amount of damages to be awarded. Just as the defendant would have been unable to cross-examine those witnesses, so the court, as the finder of fact, would have been unable to judge the credibility and demeanor of those witnesses from the written affidavits. “Credibility must be assessed ... by observing firsthand the witness’ conduct, demeanor and attitude. ... As a practical matter, it is inappropriate to assess credibility without having watched a witness testify, because demeanor, conduct and other factors are not fully reflected in the cold, printed record.” (Internal quotation marks omitted.) State v. Hunt, 72 Conn. App. 875, 884, 806 A.2d 1084, cert. denied, 262 Conn. 920, 812 A.2d 863 (2002). We conclude, therefore, that the court did not abuse its discretion in excluding the plaintiffs affidavits from evidence.

VI

Finally, the plaintiff claims that the court improperly failed to award him $286.85 and $512 for storm windows and electrical work, respectively. We agree in part.

“In an action at law, the rule is that the entry of a default operates as a confession by the defaulted defendant of the truth of the material facts alleged in the complaint which are essential to entitle the plaintiff to some of the relief prayed. It is not the equivalent of an admission of all of the facts pleaded. The limit of its effect is to preclude the defaulted defendant from making any further defense and to permit the entry of a judgment against him on the theory that he has admitted such of the facts alleged in the complaint as are essential to such a judgment. It does not follow that the plaintiff is entitled to a judgment for the full amount of the relief claimed. The plaintiff must still prove how much of the judgment prayed for in the complaint he is entitled to receive.” Murray v. Taylor, 65 Conn. App. 300, 334-35, 782 A.2d 702, cert. denied, 258 Conn. 928, 783 A.2d 1029 (2001).

“The determination of damages involves a question of fact that will not be overturned unless it is clearly erroneous. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Citation omitted; internal quotation marks omitted.) Franc v. Bethel Holding Co., 73 Conn. App. 114, 140, 807 A.2d 519, cert. granted on other grounds, 262 Conn. 923, 812 A.2d 864 (2002).

The complaint asserted that the parties had entered into a supplementary oral contract pursuant to which the defendant was to provide the plaintiff with two Andersen combination storm windows and was to install them. The plaintiff submitted a “summary of damages” to the court. That summary listed, inter alia, $286 for the purchase and installation of two storm windows. The defendant, as a result of the default, is presumed to have admitted liability on all material facts contained in the complaint. Accordingly, we conclude that the court’s finding that the parties had not contracted for the delivery and installation of those two storm windows was clearly erroneous.

The court also denied the plaintiffs request for damages for the electrical rewiring of three first floor rooms. The court found that the contract between the parties specifically provided that “customer [provide] electrical, plumbing and heating, painting.” Nevertheless, the plaintiff’s “summary of damages” listed $512 in estimated costs for the electrical rewiring of the “three rooms affected.”

With respect to the claimed damages, the plaintiff argues that the electrical work listed in his “summary of damages” was not the work contemplated under the written contract, but rather, additional and unanticipated electrical work necessitated solely by the defendant’s defective installation of the cantilever beams. Notwithstanding the plaintiff’s argument, our review of the record does not reveal any evidence tending to establish that the electrical work for which the plaintiff seeks damages would not have been necessary in any event. The only definitive fact relating to electrical work is that some such work was contemplated as a necessary consequence of constructing the dormer and installing the cantilevered beams. Whether replacing the defective cantilevered beams necessitated more electrical work than the initial installation of those beams is addressed only by inference from the plaintiff s claim of additional damages. Accordingly, we conclude that the court’s finding that the claimed electrical work was identical to the electrical work originally contemplated under the contract was not clearly erroneous.

The judgment is reversed in part and the case is remanded for further proceedings to recalculate the award of damages consistent with this opinion.

In this opinion the other judges concurred.

       Although the plaintiff sets forth his CUTPA and “reckless indifference” claims as separate counts, they are, in essence, the same claim. The second count of the amended complaint, which alleged a violation of CUTPA, relates to liability, while the third count, which alleged reckless indifference, relates to the applicability of awarding punitive damages for the CUTPA violation.

       With respect to that allegation, we note only that a party may not recover damages for mental distress resulting from his own negligence.

       The court stated in its amended memorandum of decision: “The court has considered whether to include as recoverable damages $5855 paid by the plaintiff to Gregory D. Jones pursuant to Mr. Jones’ affidavit. The plaintiffs testimony was that some of the account was for damage included in Mr. Moffitt’s estimate; however, there is no evidence before the court as to what portion of this amount was duplicative and what portion was not. Therefore, the court declines to include the amount paid to Mr. Jones as damages in this case.”

       The plaintiff cites L.F. Pace & Sons, Inc. v. Travelers Indemnity Co., 9 Conn. App. 30, 41, 514 A.2d 766, cert. denied, 201 Conn. 811, 516 A.2d 886 (1986), for the relevance of the distinction he seeks to make. That case, however, did not involve an award of interest pursuant to General Statutes § 37-3a. Rather, the portion of the case cited by the plaintiff involves the court’s discussion of the general rule regarding the proper measure of damages in contract cases in the context of a defendant’s claim that the trial court improperly had awarded lost profits because they were too speculative.

       The court stated: “Well, you see, here, we’re getting into an issue where counsel — if you wanted these neighbors to come in and testify for you— not every witness can testify by affidavit, and it isn’t fair to just submit affidavits without telling counsel ahead of time that you’re going to do that because counsel has a right to cross-examine these witnesses, and he can’t cross-examine a piece of paper.”


source: Caselaw Access Project

author: LANDAU, J.

license: Public Domain

text:
    FIRST NATIONAL BANK OF CHICAGO v. ROBERT L. MAYNARD, JR., ET AL.
    (AC 22754)
    Dranginis, Landau and Shea, Js.
    Argued September 23, 2002
    officially released March 4, 2003

      David F. Borrino, with whom, on the brief, was Adam L. Bendett, for the appellant (plaintiff).

      Michael W. Sheehan, for the appellee (defendant G.C. Holdings, LLC).
   Opinion

LANDAU, J.

In this foreclosure action, the plaintiff, First National Bank of Chicago, appeals from the judgment rendered by the trial court approving a foreclosure by sale of the property owned by the defendants Robert L. Maynard, Jr., and Barbara J. Gladue. On appeal, the plaintiff claims that the court improperly exercised its discretion when it (1) approved the sale of the property to an unregistered bidder, (2) approved a sale where the bid was only 50 percent of the property’s value and (3) condoned the failure of the committee to reopen the auction. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of this appeal. The plaintiff commenced this action to foreclose its mortgage on property located at 126 Tom Wheeler Road, North Stonington. On July 9, 2001, the court rendered judgment of foreclosure by sale, finding the debt to be $129,216 and the fair market value of the property to be $200,000. The court ordered bidders to deposit $20,000 with the committee, but excused the plaintiff from this requirement. The court ordered the foreclosure sale to take place at the premises on September 29, 2001, at noon.

On the date of the sale, six bidders registered and participated in the auction, which the committee began at noon. Mark Tate opened the auction with a $25,000 bid, followed by a bid by Gary M. Whipple for $100,000. Because there were no further bids, the committee accepted Whipple’s bid, closed the bidding and concluded the auction.

Shortly thereafter, while the committee was reading the bond for deed to Whipple and returning the deposit checks to the unsuccessful bidders, the plaintiffs representative, attorney Charles F. Basil, arrived. Basil requested that the committee open the bidding so that he could submit a bid on behalf of the plaintiff. Basil claimed that due to the poor directions that he acquired from the Internet, traffic, poorly marked road signs and a cellular phone with no service in the remote area, he was unable to locate the premises. The committee, however, refused Basil’s request and issued the bond for deed to G.C. Holdings, LLC, at Whipple’s request.

On October 1, 2001, the plaintiff filed a motion to set aside the sale and to set a new sale date because the plaintiff was unable to attend the sale and because the successful bid was only 50 percent of the property’s value. On October 9, 2001, G.C. Holdings, LLC, filed a motion to be made a party defendant, which the court subsequently granted. After a hearing, the court denied the plaintiff’s motions and approved the sale to G.C. Holdings, LLC. This appeal followed.

We first note our standard of review. “[A] foreclosure action constitutes an equitable proceeding. ... In an equitable proceeding, the trial court may examine all relevant factors to ensure that complete justice is done. . . . The determination of what equity requires in a particular case, the balancing of the equities, is a matter for the discretion of the trial court.” (Internal quotation marks omitted.) Northeast Savings, F.A. v. Hintlian, 241 Conn. 269, 275, 696 A.2d 315 (1997); Citicorp Mortgage, Inc. v. Burgos, 227 Conn. 116, 120, 629 A.2d 410 (1993).

I

The plaintiff first claims that the court improperly approved the sale of the property to an unregistered bidder. It specifically argues that bidders were required to register with the committee and to provide a certified check in the amount of $20,000. The plaintiff further argues that Whipple was the party who submitted the requisite deposit amount and therefore was the registered bidder who was enabled to bid on the property. Consequently, the plaintiff contends that when the committee issued the bond for deed to G.C. Holdings, LLC, an unregistered bidder, this amounted to an irregularity. The plaintiff argues that because of this irregularity, the court abused its discretion when it approved the sale to G.C. Holdings, LLC, and improperly denied the plaintiffs motion to set aside the sale.

“[W]hen a court order respecting the conduct of a judicial sale is not complied with the court should scrutinize the transaction very carefully to assure itself that the sale has been conducted fairly and impartially and, if any irregularity has occurred, that no interested party has been injured by it. If any likelihood of injury is shown it would be an abuse of discretion for the trial court to approve the sale.” (Emphasis added; internal quotation marks omitted.) Citicorp Mortgage, Inc. v. Burgos, supra, 227 Conn. 121. The court may set aside the sale, if equitable principles so demand, where an irregularity exists and an interested party has been injured as a result of the irregularity. Id. We consider the particular facts of this case to determine whether the court abused its discretion when it approved the sale of the property to G.C. Holdings, LLC, and denied the plaintiffs motion to set aside the sale.

First, the plaintiff correctly points out that an irregularity existed when the committee approved the sale to G.C. Holdings, LLC. On the day of the sale, Whipple deposited a $20,000 bank check in his name. Whipple was, therefore, a qualified bidder who could bid at the sale. Consequently, when the committee issued the bond for deed to G.C. Holdings, LLC, instead of to Whipple, this resulted in an irregularity because a limited liability company is a legal entity separate from its members. See General Statutes § 34-124.

Although we do not condone the practice of failing to register in the name of the entity to whom the bond for deed is to be issued because it is indeed an irregularity, in order to recover, the plaintiff must also show “injury to [itself] resulting from the irregularity complained of.” (Internal quotation marks omitted.) Citicorp Mortgage, Inc. v. Burgos, supra, 227 Conn. 121. The plaintiff maintains that it was injured because the committee failed to reopen the bidding so that the plaintiff could submit its bid on the property. The plaintiff, however, misses its mark. Although there was an irregularity, the plaintiff fails to show how it was injured by this irregularity. See Raymond v. Gilman, 111 Conn. 605, 612-15, 151 A. 248 (1930) (affirming court’s refusal to set aside sale because irregularity did not cause injury); cf. Citicorp Mortgage, Inc. v. Burgos, supra, 122-23 (reversing court’s refusal to set aside sale because irregularity complained of caused injury).

In the present case, following the order of the court, the committee began the sale at noon. The plaintiff concedes that Basil arrived late and that when he arrived, the committee was in the process of issuing the bond for deed. The committee’s act of issuing the bond for deed to G.C. Holdings, LLC, instead of to Whipple, did not cause injury to the plaintiff; the plaintiffs injury was a result of Basil’s tardiness and not a result of the irregular action of the committee’s issuing a bond for deed to an entity other than the successful bidder. On the basis of our review of the facts, we conclude that there was no injury to the plaintiff arising out of its complaint and, therefore, the court did not abuse its discretion when it refused to set aside the sale.

II

The plaintiff next argues that the court abused its discretion when it approved a sale that was based on an inadequate bid. Specifically, the plaintiff claims that the bid was only 50 percent of the property’s fair market value because the property was appraised at $200,000 and the successful bid was for only $100,000. Alternatively, the plaintiff argues that the successful bidder paid only $100,000 for the property, plus approximately $24,000 in unpaid taxes and that this constituted only 62 percent of the property’s fair market value of $200,000. We do not agree.

We first note that “the usual notion of fair market value is inconsistent with the notion of a foreclosure sale. [FJair market value is generally said to be the value that would be fixed in fair negotiations between a desirous buyer and a willing seller, neither under any undue compulsion to make a deal. . . . An auction sale, such as a foreclosure sale, is not designed to reach that result because there is no opportunity for negotiations, and the seller, namely, the committee appointed by the trial court to conduct the sale, is under compulsion to make a deal, in the sense that it is required to take the highest bid, subject only to the approval of the court.” (Citations omitted; emphasis in original; internal quotation marks omitted.) New England Savings Bank v. Lopez, 227 Conn. 270, 280, 630 A.2d 1010 (1993); see also New Haven Savings Bank v. West Haven Sound Development, 190 Conn. 60, 71, 459 A.2d 999 (1983). “It is generally recognized that the grounds which would warrant a court’s refusal to approve a sale are fraud, misrepresentation, surprise or mistake.” (Internal quotation marks omitted.) Wilcox v. Willard Shopping Center Associates, 23 Conn. App. 129, 133, 579 A.2d 130 (1990); Jefferson v. Karpowicz, 10 Conn. App. 198, 200, 522 A.2d 322 (1987). Furthermore, “[a] foreclosure by sale may result in bids not only less than the appraised value of the property, but even less than the foreclosing mortgagee’s loan, allowable expenses and taxes. Because the trial court has control of the foreclosure proceedings, it can, in the exercise of its discretion, accept or reject a proposed sale.” Fidelity Trust Co. v. Irick, 206 Conn. 484, 490, 538 A.2d 1027 (1988).

In the present case, the plaintiff relies on the preliminary appraisal completed by the court-appointed appraiser pursuant to General Statutes § 49-25. This appraisal estimated the value of the property to be $200,000, pursuant to a diive-by inspection. “[T]he trial court is not bound to accept the appraised value . . . [but] it may [be used to] assist the trial court in the exercise of its discretion, in accepting or rejecting a proposed sale.” (Citation omitted.) Dime Savings Bank of New York v. Grisel, 36 Conn. App. 313, 318, 650 A.2d 1246 (1994).

At the hearing on the plaintiffs motion to set aside the sale, the court found the value of the property to be $152,000. The court based its finding on an appraisal that had been completed on October 24, 2001. This appraisal included an internal inspection of the house. The court was well within its broad discretion when it found the value of the property to be $152,000. See Danbury Savings & Loan Assn., Inc. v. Hovi, 20 Conn. App. 638, 641-42, 569 A.2d 1143 (1990). The court found the successful bid to be two-thirds of the property’s value. Furthermore, the court found significant the fact that a representative from the second mortgage holder was a bidder at the sale and did not bid in excess of $100,000. The court balanced the equities and determined that equitable principles favored approving the sale. We conclude, on the basis of the record before us, that the court did not abuse its discretion when it approved the sale.

Ill

Finally, the plaintiff claims that the court improperly exercised its discretion in approving the sale by condoning the refusal of the committee to allow a late bid. Specifically, the plaintiff argues that the committee failed to consider the circumstances that prevented its representative from attending the auction and that the court approved an inequitable sale by failing to consider the plaintiffs proposed bid. The plaintiff maintains that the committee should have reopened the bidding when the plaintiffs representative arrived because the bond for deed was not yet signed. The plaintiff relies on the principles of equity and fairness.

“The court is the vendor in a foreclosure by sale resulting from a judicial proceeding, and the committee of sale is the mere agent of the court. . . . The balancing of the equities and the determination of what is required by equity in a particular case are matters of discretion for the trial court. . . . Our review of the court’s factual determinations is limited to whether those facts are supported by the evidence, or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous.” (Citations omitted.) Dime Savings Bank of New York v. Grisel, supra, 36 Conn. App. 320-21.

In this case, the court balanced the equities and determined that equity favored approval of the sale. The court found that the sale was advertised to commence at noon on the premises and that the plaintiffs representative, Basil, was not present when the committee conducted the sale. Furthermore, the proceedings had closed when Basil arrived, and the committee awarded the sale to Whipple. The only party to benefit from a new sale would be the plaintiff, and it was the plaintiff who was at fault for not being on time and present on the date of the sale. A court typically will “not reject the sale under these circumstances without undermining the integrity of the foreclosure by sale concept.” Id., 321. The court found that equity favored approval of the sale. We conclude, on the basis of the record before us, that the court took great care in balancing the equities and did not abuse its discretion in approving the sale to G.C. Holdings, LLC.

The judgment is affirmed.

In this opinion the other judges concurred.

       Maynard and the other original defendants are not parties to this appeal. The appellee in this appeal is the purchaser of the property at issue, G.C. Holdings, LLC, which was made a party defendant pursuant to General Statutes § 52-107, and Practice Book §§ 9-18 and 9-22.

       The six registered bidders were Mark Tate, Frank Cafone, Shelly Shields, Stephen Pearson, Thomas Fortin and Gary M. Whipple.

       Whipple was the sole member of G.C. Holdings, LLC.

       On November 13,2001, the plaintiff filed an amended motion to set aside the sale on additional grounds. The court, however, denied the motion. In addition, on December 31, 2001, the plaintiff filed a motion to reargue because the court did not address the additional grounds stated in the plaintiffs amended motion. After a brief hearing, the court affirmed its denial of the plaintiffs motion to set aside and approved the sale to G.C. Holdings, LLC.

       G.C. Holdings, LLC, is a limited liability company, and although Whipple is its sole member, he and G.C. Holdings, LLC, are not the same legal entity.

       The plaintiff also contends that the court abused its discretion because it did not consider equitable factors when it approved the sale. The plaintiff points to several factors that the court considers when deciding whether to approve or disapprove a sale. Such factors cited by the plaintiff include “(1) whether the sale price essentially satisfies the plaintiff’s debt ... (2) whether the sale price is adequate in comparison with the appraised value of the premises ... (3) whether the sale price is adequate in comparison with the existing marketing conditions; [and] (4) whether a subsequent sale could be expected to yield a greater purchase price . . . .” (Citations omitted.) Although the court has historically considered each of these factors in turn, the plaintiff views these factors individually as dispositive. We decline to review each factor individually because a court of equity has broad discretion, and a court of equity “may examine all relevant factors to ensure that complete justice is done.” (Internal quotation marks omitted.) Northeast Savings, F.A. v. Hintlian, supra, 241 Conn. 275; see also Fidelity Trust Co. v. Irick, 206 Conn. 484, 490, 538 A.2d 1027 (1988).
      In addition, we decline to consider the ground raised by the plaintiff in support of its claim, specifically, that it was willing to bid $135,900, because representations by counsel are not considered evidence. See, e.g., Tevolini v. Tevolini, 66 Conn. App. 16, 25-26, 783 A.2d 1157 (2001). Moreover, the plaintiff did not request furl her articulation of the trial court’s decision pursuant to Practice Book § 66-5. “The duty to provide this court with a record adequate for review rests with the appellant.” (Internal quotation marks omitted.) New Haven Savings Bank v. Mongillo, 67 Conn. App. 799, 801, 789 A.2d 547 (2002). In light of the inadequate record before us, we decline to review this claim.

       General Statutes § 49-25 provides: “When the court in any such proceeding is of the opinion that a foreclosure by sale should be decreed, it shall, in its decree, appoint a person to make the sale and fix a day therefor, and shall direct whether the property shall be sold as a whole or in parcels, and how the sale shall be made and advertised; but, in all cases in which such sale is ordered, the court shall appoint one disinterested appraiser who shall, under oath, appraise the property to be sold and make return of the appraisal to the clerk of the court. Upon motion of the owner of the equity of redemption, the court shall appoint a second appraiser in its decree. If the plaintiff is the purchaser at sale, or if the property is redeemed at any time prior to the approval of the sale, or if for any reason the sale does not take place, the expense of the sale and appraisal or appraisals shall be paid by the plaintiff and be taxed with the costs of the case. If, after judgment has been rendered, the amount found to be due and for which foreclosure is decreed, together with the interest and the costs, is paid to the plaintiff before the sale, all further proceedings in the suit shall be stayed.”

       At this hearing, the court allowed G.C. Holdings, LLC, to admit into evidence the testimony of Pamela Gural, who had completed an internal inspection of the property on October 24, 2001. Although the plaintiff objected to this testimony, and was overruled, it does not challenge this testimony or evidence on appeal. See, e.g., Traggis v. Shawmut Bank Connecticut, N.A., 72 Conn. App. 251, 264, 805 A.2d 105, cert. denied, 262 Conn. 903, 810 A.2d 270 (2002).

       While there was some dispute as to the time Bash arrived, the plaintiff does not dispute that Basil arrived late and that the proceedings had closed.


text:
    STATE OF CONNECTICUT v. GILBERTO GONZALEZ
    (AC 22374)
    Lavery, C. J., and Schaller and West, Js.

      Argued October 23, 2002
    officially released March 4, 2003

      Moira L. Buckley, deputy assistant public defender, for the appellant (defendant).

      James A. Killen, senior assistant state’s attorney, with whom, on the brief, were Patricia M. Froehlich, state’s attorney, and Debra A. Collins, assistant state’s attorney, for the appellee (state).
   Opinion

WEST, J.

The defendant, Gilberto Gonzalez, appeals from the judgment of conviction, rendered following a jury trial, of two counts of sexual assault in the first degree in violation of General Statutes § 53a-70 and two counts of risk of injury to a child in violation of General Statutes § 53-21. On appeal, the defendant claims that the trial court improperly (1) allowed testimony that exceeded the bounds of permissible constancy of accusation testimony, (2) violated his due process rights by questioning a defense witness, (3) allowed an expert witness to testify as to his opinion on an ultimate issue in the case, (4) allowed a fact witness to testify as to his opinion on an ultimate issue in the case and (5) violated the defendant’s sixth amendment right of confrontation by denying him access to certain privileged documents. We agree in part and reverse the judgment of the trial court.

The jury reasonably could have found the following relevant facts. The victim was bom in 1985. In 1993 and 1994, the victim lived with her mother, the victim’s two half-sisters and the defendant. The defendant and the victim’s mother had lived together from the time that the victim was two years old.

The victim testified that the defendant sexually assaulted her at least four times a week during 1993 and 1994. Those assaults occurred in the family home while the victim’s mother was either absent from the apartment or while she was in another part of the apartment sleeping. The victim testified that she did not cry out or otherwise attempt to tell her mother about the assaults because the defendant had threatened her. One of the victim’s half-sisters witnessed the assaults on the victim on several occasions. The defendant unsuccessfully attempted to coerce the half-sister into participating in those acts.

The half-sister eventually disclosed the defendant’s abuse of the victim to a friend at school. That friend, in turn, told the school social worker about the sexual assaults. On March 24, 1994, the social worker spoke with the victim about the assaults. The victim testified that although her half-sister had encouraged her to confide in the school social worker, she initially had lied to the social worker and denied that the defendant had assaulted her. At trial, the victim stated that she had denied that those assaults had occurred because she was afraid of the defendant. The victim eventually did tell the school social worker that the defendant had assaulted her. The victim also was interviewed by an intake worker for the department of children and families (department) and a sexual assault crisis counselor. During those interviews, the victim confirmed the allegations of abuse.

Following those interviews, the victim and her half-sister confronted the defendant and the victim’s mother with the allegations of abuse during a meeting at the department’s offices. After that meeting, the department took the children into its custody. Three days later, the defendant fled to Puerto Rico. On March 2, 2000, a fugitive task force arrested the defendant in Puerto Rico. He was extradited to Connecticut on March 22, 2000.

On April 5,1994, a physician examined the victim on the department’s referral. Although his examination did not establish conclusively that the victim had been sexually assaulted, the physical evidence was sufficient for the physician, to form “a very high degree of suspicion” that the victim had been exposed to some form of sexual contact. Additional facts will be set forth as necessary.

I

The defendant’s first claim is that the court improperly allowed testimony by the department worker and the crisis counselor that exceeded the bounds of permissible constancy of accusation testimony. In opposition to that claim, the state argues that (1) the claim should not be reviewed because the defendant failed to move to strike the challenged testimony, (2) the court should not consider the defendant’s claim because he failed to object to the state’s offer of the crisis counsel- or’s testimony under the medical treatment exception to the hearsay rule, (3) the challenged testimony was admissible because the defendant opened the door by questioning the victim and her sister regarding the details of the sexual abuse, and (4) the defendant has not demonstrated harm. We disagree with the state and agree with the defendant that the challenged testimony was both improper and harmful.

At the outset, we set forth the applicable standard of review for the defendant’s claim. “It is well settled that [t]he trial court’s ruling on the admissibility of evidence is entitled to great deference. . . . [T]he trial court has broad discretion in ruling on the admissibility . . . of evidence. . . . [Its] ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion. . . . We will make every reasonable presumption in favor of upholding the trial court’s ruling .... Moreover, evidentiary rulings will be overturned on appeal only where there was . . . a showing by the defendant of substantial prejudice or injustice.” (Internal quotation marks omitted.) State v. Watts, 71 Conn. App. 27, 34, 800 A.2d 619 (2002).

The following additional facts are necessary for our resolution of the defendant’s claim. On June 18, 2001, the defendant filed a motion in limine seeking an order from the court prohibiting the state from introducing any constancy of accusation testimony. In the alternative, the defendant’s motion requested that any such testimony that the court admitted should be limited according to the strictures of State v. Troupe, 237 Conn. 284, 304, 677 A.2d 917 (1996) (en banc). The court, on June 27, 2001, denied the defendant’s motion to bar constancy of accusation testimony with the caveat that, pursuant to State v. Kelly, 256 Conn. 23, 38 n.11, 770 A.2d 908 (2001), such testimony would be limited to the fact that the victim made a complaint, the date and nature of that complaint, and the identity of the perpetrator.

At trial, the state called the department intake worker to testify. The prosecution asked her what the victim had disclosed to her during their first meeting. In responding to that question, the department worker-disclosed explicit details of the sexual contact between the defendant and the victim. The defendant, relying on the motion in limine, objected to the witness’ response. The jury was excused, and the court heard argument on the objection by counsel.

The state, while conceding that it had expected an objection during the testimony, argued that the department worker’s testimony was permissible because it was offered to establish only that the nature of the incident was a sexual assault. The court overruled the defendant’s objection, but cautioned counsel that it would be guided by whatever the parties sought to introduce from that point forward. When the jury returned, the details of the assault were not revisited, and the department worker’s testimony proceeded without further objection.

The state subsequently called the crisis counselor to testify. The state asked her to testify regarding what the victim had stated during their interview. The defendant objected to the question on the basis of the court’s previous ruling. The court summarily overruled the objection. Following the court’s ruling on the objection, the prosecutor stated on the record that the testimony was being offered as a “part of the history taking of a diagnosis by a social worker.” The court did not comment on the state’s offer, and the direct examination of the crisis counselor continued. As the defendant anticipated, her response presented the details of the alleged sexual assaults in vivid detail.

To resolve the issue raised in this appeal, it is necessary to review our jurisprudence regarding constancy of accusation testimony. The seminal case regarding the admission of constancy of accusation testimony in Connecticut is State v. Troupe, supra, 237 Conn. 284. Following a thorough review of the historical development of the constancy of accusation doctrine and a survey of the manner in which such testimony is treated in other jurisdictions, the Troupe court concluded that although there remains a need for constancy of accusation evidence to counter commonplace social prejudices in sexual assault cases, the scope of the evidence permitted as constancy of accusation evidence should be narrowed. Id., 294-303. The court was particularly concerned with the potential for undue prejudice against the defendant arising from repeated iteration of the details of a sexual assault. Accordingly, the court narrowed the constancy of accusation exception to the hearsay rule, declaring that “a person to whom a sexual assault victim has reported the assault may testify only with respect to the fact and timing of the victim’s complaint; any testimony by the witness regarding the details surrounding the assault must be strictly limited to those necessary to associate the victim’s complaint with the pending charge, including, for example, the time and place of the attack or the identity of the alleged perpetrator.” Id., 304.

In the present case, we conclude that the court abused its discretion in admitting the challenged constancy of accusation testimony. The nature of the constancy of accusation testimony in the present case exemplifies the particular dangers that the Supreme Court noted in Troupe. Specifically, the nature of that testimony was ideally designed to arouse the prejudices and sympathies of the jury. The facts of this case present a situation where a young child allegedly has been subjected to degrading abuse of the most heinous sort at the hands of an individual who is invited into the home by the victim’s mother and who, ideally, should be filling the role of the victim’s protector and guardian. When faced with the appalling details of the alleged assaults, the jury could not help but be roused by antipathy and disgust.

Notwithstanding the Troupe court’s decision not to apply the prohibition against broad constancy of accusation testimony retroactively, the court clearly indicated that such testimony was to be excluded in subsequent proceedings. Id., 304-305. Given our Supreme Court’s admonition regarding constancy of accusation testimony, the court was obligated, absent an independent ground for its admissibility, to exclude such evidence after aproper objection by the defendant. For the foregoing reasons, we conclude that the court abused its discretion by failing to exclude the challenged constancy of accusation testimony.

A

Notwithstanding the clearly improper admission of the challenged testimony pursuant to the constancy of accusation doctrine, the state argues, with respect to the department worker’s testimony, that the defendant has not preserved the issue properly for appeal because he failed to make a request during the trial that the court strike the challenged testimony. We are unpersuaded.

“The standard for the preservation of a claim alleging an improper evidentiary ruling at trial is well settled. This court is not bound to consider claims of law not made at the trial. ... In order to preserve an evidentiary ruling for review, trial counsel must object properly. ... In objecting to evidence, counsel must properly articulate the basis of the objection so as to apprise the trial court of the precise nature of the objection and its real purpose, in order to form an adequate basis for a reviewable ruling. . . . Once counsel states the authority and ground of his objection, any appeal will be limited to the ground asserted.” (Internal quotation marks omitted.) Pestey v. Cushman, 259 Conn. 345, 365, 788 A.2d 496 (2002). The defendant in this case has preserved the issue properly for appeal.

It is usually the case that when a question posed to a witness at trial is not itself improper but the answer to that question contains inadmissible material, “an objection made upon the answer is seasonable . . . .” 1 J. Wigmore, Evidence (Tillers Rev. 1983) § 18, p. 800; Hackenson v. Waterbury, 124 Conn. 679, 683, 2 A.2d 215 (1938). The proper form of such an objection is a motion to strike the answer. 1 J. Wigmore, supra, § 18, p. 800. In the present case, the defendant objected to the response, but did not request specifically that the court strike that response. That failure, however, is not fatal to the defendant’s claim on appeal because it appears, from the record before us, that the court overruled the defendant’s objection. In response to the defendant’s objection, the court stated to counsel: “Well, I certainly would permit some testimony from the [department] worker, but I’ll be guided by whatever you two seek to permit at this point.” Thus, a specific request to strike the answer was preempted. Thereafter, the jury was recalled, and the department worker’s testimony resumed. The constancy of accusation testimony was not revisited, and the testimony proceeded without objection from that point.

We agree with the defendant that it would have been futile for him to request the court to strike the testimony to which he had raised the objection after the court had denied that very objection. Accordingly, we conclude that the defendant has preseived his claim for appeal.

B

With respect to the crisis counselor’s testimony, the state argues that it was not constancy of accusation testimony at all, but rather, that it was offered as “part of the history taking of a diagnosis by a social worker.” In addressing that argument, we note that a court can sustain the admission of evidence on any proper grounds that exist for its admission. See State v. Williams, 48 Conn. App. 361, 367, 709 A.2d 43, cert. denied, 245 Conn. 907, 718 A.2d 16 (1998). We conclude, however, that the crisis counselor’s testimony was not admissible under the medical treatment exception to the hearsay rule.

Whether evidence offered at trial is admissible pursuant to one of the exceptions to the hearsay rule presents a question of law. Accordingly, our review of the state’s claim is plenary. See State v. Tillman, 220 Conn. 487, 491, 600 A.2d 738 (1991), cert. denied, 505 U.S. 1207, 112 S. Ct. 3000, 120 L. Ed. 2d 876 (1992).

To address the state’s argument, the following additional facts are necessaiy. When the state asked the crisis counselor to tell the court what the victim had stated to her regarding the details of the alleged sexual abuse, the defendant objected. In raising his objection, the defendant referred to the court’s previous ruling on the objection to the department worker’s responses. The court overruled the objection with no discussion. Following the court’s ruling, the prosecutor stated: “Your Honor, I would just note for the record, State v. DePastino, 228 Conn. 552 [638 A.2d 578 (1994)]. That is not hearsay. It is part of the history taking of a diagnosis by a social worker.”

In DePastino, our Supreme Court held that “[i]n cases of sexual abuse in the home, hearsay statements made in the course of medical treatment which reveal the identity of the abuser, are reasonably pertinent to treatment and are admissible.” (tntemal quotation marks omitted.) Id., 565. Although the facts of DePastino were limited to statements made to a physician in the course of obtaining medical treatment, the rule was expanded subsequently in State v. Cruz, 260 Conn. 1, 792 A.2d 823 (2002). In Cruz, our Supreme Court held that statements provided to a social worker operating within the “chain of medical care” were properly admissible under the medical treatment exception to the hearsay rule, notwithstanding the fact that such individual was not herself a physician. Id., 6.

Pursuant to Cruz, the sole consideration to be evaluated in determining the admissibility of evidence under the medical treatment exception is whether the statements are “made for the purpose of obtaining medical diagnosis or treatment and are pertinent to the diagnosis or treatment sought.” Id. Thus, in order to assess the state’s argument on appeal, it is necessary to determine whether the crisis counselor’s interview of the defendant occurred within the “chain of medical care.” Id. We conclude that it did not.

It is evident from the crisis counselor’s testimony that her interview of the victim was not for the purpose of medical diagnosis or treatment. The victim was referred to the crisis counselor through the department, and the interview took place at the department’s office, not at a hospital. The crisis counselor did not testify that her interview with the victim would provide the foundation for either physical or psychological medical care. Indeed, the department independently referred the victim to another individual, a physician, for the purpose of medical diagnosis.

The crisis counselor repeatedly referred to her interview with the victim as investigative, rather than diagnostic. During the crisis counselor’s testimony, she indicated that her background included training police officers on how to interview children. She testified that a police officer was present during her interview with the victim. She testified that she was opposed to the victim’s desire to confront the defendant concerning the abuse because, in addition to being traumatic for the child, such confrontations can interfere with the police investigation. We conclude, therefore, that the crisis counselor was not operating within the “chain of medical care”; id.; and that her testimony was not admissible under the medical treatment exception to the hearsay rule.

C

Finally, the state argues that the defendant opened the door to the challenged constancy testimony by eliciting details of the alleged abuse from the victim and her half-sister during cross-examination. We disagree.

“As a general rule ... if a party delves into a particular subject during examination, he is said to have ‘opened the door’ for further examination regarding that subject.” State v. Morascini, 62 Conn. App. 758, 766, 772 A.2d 703, cert. denied, 256 Conn. 921, 774 A.2d 141 (2001). Our Supreme Court has recognized that “[a] defendant, on cross-examination of a constancy witness, may elicit details of the victim’s complaint for the purpose of demonstrating inconsistencies between the victim’s trial testimony about the sexual assault and the victim’s report of the incident. In such cases, the effect of our modification of the constancy of accusation doctrine is merely to shift the timing of the introduction into evidence of the details.” State v. Troupe, supra, 237 Conn. 304 n.19. “The doctrine of opening the door cannot, [however], be subverted into a rule for injection of prejudice.” (Internal quotation marks omitted.) State v. Morascini, supra, 766.

The state called the half-sister as a witness during its case-in-chief. During cross-examination, the defendant questioned her regarding the details of what she allegedly had seen occur between the victim and the defendant. The defendant then inquired about several inconsistencies in the statements that the half-sister had given to the police and to the department. Specifically, the defendant pointed out that in each of those statements, the witness had stated that the abuse occurred in a different room of the apartment. In the statement provided to the police, the witness stated that the abuse occurred in the kitchen, but in the statement given to the department, the witness stated that the abuse had occurred in the bedroom.

In advancing its argument that the cross-examination of the victim and her half-sister had opened the door to the introduction of the challenged constancy evidence, the state relies on State v. Abrahante, 56 Conn. App. 65, 70-72, 741 A.2d 976 (1999). In Abrahante, we held that the trial court had not abused its discretion when it allowed three witnesses to testify regarding prior consistent statements made by the victim when those statements put into context for the jury inconsistencies in the victim’s statements that were brought out during cross-examination. Id., 72. Thus, the constancy of accusation testimony was admitted for the purpose of rehabilitating the victim’s testimony. Id. Despite the state’s arguments to the contrary, Abrahante does not stand for the proposition that a defendant opens the door to unlimited constancy of accusation testimony simply by bringing facts before the jury through the testimony of another witness.

The state called the victim as a witness in its casein-chief. During her testimony, the victim stated that the defendant had assaulted her at various times in her bedroom, in the living room, in the bathroom, in the kitchen and in her sister’s room. On cross-examination, the defendant asked the victim if she had told either the police or the department about the abuse that occurred in the living room. She conceded that she had not.

At no point during that cross-examination did the defendant challenge the details of the assault about which either the department worker or the crisis counselor later testified. Their testimony also did not concem the particular rooms of the house in which the abuse was alleged to have occurred. Thus, the challenged constancy evidence did not address the details on which the defense sought to impeach the victim’s credibility. Accordingly, we conclude that the defendant’s cross-examination of the victim did not open the door to the introduction of the challenged constancy of accusation testimony.

Furthermore, the state’s argument that the defendant opened the door to the challenged constancy of accusation testimony by illuminating inconsistencies in statements made by an eyewitness, rather than the victim, is misplaced. The inconsistencies brought out during the cross-examination of the half-sister did not involve statements the victim had made to the half-sister. Rather, the cross-examination concerned events that the half-sister had witnessed. The constancy testimony, by contrast, involved statements made by the victim to, respectively, the department worker and the crisis counselor. Moreover, as with the cross-examination testimony of the victim, the substance of the inconsistencies brought out during the cross-examination bore no relation to the challenged constancy testimony. Thus, we conclude that the subsequent constancy testimony had no relevance to the half-sister’s cross-examination testimony, and the holding of Abrahante is inapplicable to the facts before us.

II

We next turn to the defendant’s claim that the court improperly denied him access to privileged documents. At trial, the defendant sought in camera review of the victim’s department records on the basis of his right to confrontation under the sixth amendment to the United States constitution as well as his due process right to exculpatory evidence under the fourteenth amendment to the United States constitution. The defendant also claims that the court, following an in camera review, improperly failed to disclose material contained in the victim’s and the hall-sister’s board of education and counseling center records that would affect the credibility of the witnesses. We review those claims in turn.

A

We review the court’s conclusion that the defendant was not entitled to an in camera review of the confidential documents pursuant to our standard of review for the court’s evidentiary rulings. See State v. William C., 71 Conn. App. 47, 62, 801 A.2d 823 (access to confidential records should be left to discretion of trial court), cert. granted on other grounds, 262 Conn. 907, 810 A.2d 277 (2002); State v. Manini, 38 Conn. App. 100, 114, 659 A.2d 196, cert. denied, 234 Conn. 920, 661 A.2d 99 (1995). “The trial court has wide discretion in its rulings on evidence and its rulings will be reversed only if the court has abused its discretion or an injustice appears to have been done.” (Internal quotation marks omitted.) State v. Manini, supra, 114. In the present case, we conclude that the court did not abuse its discretion when it concluded that the defendant was not entitled to an in camera review of the department records.

In State v. Kulmac, 230 Conn. 43, 58, 644 A.2d 887 (1994), our Supreme court held that to compel an in camera review of qualified confidential records pursuant to the sixth amendment right to confront witnesses, a defendant must make a preliminary showing that the failure to produce the information is likely to impair his right of confrontation. To meet that burden, a defendant must do more than simply assert that the requested files may contain information that would be useful for the purpose of impeaching the victim’s credibility. Id., 56-57.

In this case, the court found that 240 pages of department records had been disclosed previously to the defendant. Despite specifying a few general issues of particular interest, however, the defendant did not offer any evidence or argument that the material sought was likely to be contained within the remaining records. Indeed, the defendant conceded that he had no idea what was contained therein. Although defense counsel represented that the defendant had indicated that a department case had been opened on the children prior to the present allegations of abuse, the prosecution stated that it had been informed by the department that it had not been involved with the children on any prior occasion. It appears that the defendant’s attempt to obtain an in camera review was the sort of fishing expedition that our Supreme Court has proscribed repeatedly. See State v. Montgomery, 254 Conn. 694, 726-27, 759 A.2d 995 (2000); State v. Pratt, 235 Conn. 595, 610, 669 A.2d 562 (1995); State v. Harris, 227 Conn. 751, 766, 631 A.2d 309 (1993). Thus, we conclude that the defendant failed to make the requisite showing entitling him to an in camera inspection of the department records by the court.

The record also indicates that, despite his failure to obtain an in camera review of the department records, the defendant was able to cross-examine adequately both the victim and her sister and to impeach their credibility. “Where the trial court allows significant cross-examination concerning a witness’ veracity, it cannot be said that the constitutional right to confrontation is implicated.” State v. Pinnock, 220 Conn. 765, 779, 601 A.2d 521 (1992). Although a lack of knowledge about the credibility of a witness implicates the constitutional right of confrontation, “[t]hat lack of knowledge can be ameliorated by an extensive and effective cross examination.” State v. Leduc, 40 Conn. App. 233, 249, 670 A.2d 1309 (1996), on appeal after remand, 44 Conn. App. 744, 690 A.2d 1390, cert. denied, 241 Conn. 909, 695 A.2d 541 (1997).

During the cross-examination of the half-sister, the defendant presented the jury with evidence that she had been in trouble previously for stealing at school and had lied to cover up the fact of those thefts. Even more damaging to the witness’ credibility was the introduction of her testimony during cross-examination that in 1998, she had accused an upstairs neighbor of raping her. The half-sister testified that she later recanted and claimed that she had lied about the episode to get even with that neighbor for meddling in her affairs. On redirect, she testified that she was in love with that neighbor and that the alleged rape had in fact occurred, but that it was statutory rape and that in later recanting the allegation, she simply was trying to help that neighbor.

During cross-examination of the victim, the defense elicited testimony that her mother and the defendant had fought frequently, often physically assaulting each other. Thus, the defense brought forth evidence regarding a possible motive for the victim to fabricate the allegations, namely, a desire to be removed from that home environment. The defense also elicited testimony that the victim had made allegations of physical abuse against the foster caregivers with whom she had been placed following her removal from her home. Those caregivers testified that they had been involved with foster care for twelve years and had never previously been accused of abuse. That testimony was unimpeached.

On the basis of the wide latitude given to defense counsel during the cross-examination of the witnesses and the success of that cross-examination to elicit testimony highly probative of the victim’s credibility, we conclude that the court’s denial of an in camera review of the department records did not impair the defendant’s sixth amendment confrontation right.

B

The defendant also claims that the court improperly failed to disclose material contained in the board of education and counseling center records. The defendant had subpoenaed those records and requested that the court review them in camera. The court did review those documents and disclosed to the defendant one paragraph of material from the counseling center material that it deemed relevant. At the time of that disclosure, the defendant did not raise any objection. On appeal, the defendant asserts that he preserved his claim by the mere act of subpoenaing the records and requesting their disclosure. In the alternative, the defendant argues that his claim with regard to the disclosure of those records is reviewable under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989), because the denial of access to those records implicates his sixth amendment right of confrontation.

“ [A] defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant’s claim will fail. The appellate tribunal is free, therefore, to respond to the defendant’s claim by focusing on whichever condition is most relevant in the particular circumstances.” (Emphasis in original.) Id., 239-40.

“The right to cross-examine witnesses does not include the power to require the pretrial disclosure of any and all information that might be useful in contradicting unfavorable testimony. Normally the right to confront one’s accusers is satisfied if defense counsel receives wide latitude at trial to question witnesses.” (Internal quotation marks omitted.) State v. Harris, supra, 227 Conn. 764. Our review of the record satisfies us that the constitutional standard was met. Accordingly, his claim must fail because, pursuant to Golding, the defendant has failed to establish that the alleged constitutional violation clearly exists and clearly deprived him of a fair trial.

The judgment is reversed and the case is remanded for a new trial.

In this opinion the other judges concurred.

       Because the defendant’s claim regarding the improper admission of constancy of accusation testimony is dispositive of this appeal, we need not reach the other issues. We choose, however, to address the defendant’s claim regarding the failure of the court to afford in camera review of certain privileged documents because that issue is likely to arise again during retrial.

       In accord with court policy to protect the privacy rights of victims in matters concerning sexual abuse, we decline to identify the victim or others through whom her identity may be revealed. See General Statutes § 54-86e.

       The relevant portion of the department worker’s testimony was as follows:
      “[Prosecutor]: Now, going back to when you first met the victim in this case, what did she disclose to you?
      “[The Witness]: She disclosed that [the defendant] had touched her private parts and that he had inserted his penis, which she called ‘butt’ at that time, into her private parts, which she meant her vagina, and that this happened on several occasions, and one time she described as some white stuff coming out of his butt, called ‘penis.’
      “[Defense Counsel]: Your Honor, I’m going to have to object based on the motion in limine that was filed and heard before the court this morning.”

       The following colloquy took place:
      “[Defense Counsel]: I’d object to the witness getting into this area. Specifically, the victim and her sister have testified, they testified graphically to the events at issue. The purpose of these interviews would be obviously to confirm and quantify the allegations, and that, by definition, would make them constancy of accusation witnesses and would make her a constancy of accusation witness. And pursuant to Your Honor’s ruling this morning and the case law in Connecticut, that should be necessarily limited to the identification of the perpetrator and the fact that abuse actually was confirmed, not the details of the actual assault.
      “[Prosecutor]: Your Honor, I would first note that my only question was, ‘What did she tell you?’ Next, I don’t plan on having her go any — into any more detail. I believe what she said up to the point of the ‘white stuff could go to whether the complaint [was] about the sexual assault. I don’t plan on having her go any further than she did. I expected an objection much sooner.
      “The Court: Okay.
      “[Prosecutor]: I’m not going to object to my own witness.
      “The Court: Okay. Well, I certainly would permit some testimony from the [department] worker, but I’ll be guided by whatever you two seek to permit at this point. Please summon the jury.”

       The relevant portion of the crisis counselor’s testimony was as follows:
      “[Prosecutor]: And could you tell us about what she had stated?
      “[The Witness]: Yes. She disclosed that—
      “[Defense Counsel]: I would object based on the previous court ruling.
      “The Court: All right. Your objection is overruled.
      “[Prosecutor]: Your Honor, I would just note for the record, State v. DePastino, 228 Conn. 552 [638 A.2d 578 (1994)]. This is not hearsay. It is part of the history taking of a diagnosis by a social worker. . . .
      “[Prosecutor]: If you could answer the question. What did she tell you?
      “[The Witness]: She disclosed that on several occasions her stepfather, whom she refereed to as dad, had—
      “[Prosecutor]: Also referred to as [the defendant]?
      “[The Witness]: Also — yes. And had touched her in her private, she also called it a butt. We made sure that she was making reference — what those words meant. In other words, diagrams are sometimes used, children point to themselves. She clearly stated that words that she used for her vaginal area was ‘butt’ or ‘private.’ She referred to her rectal area as ‘bottom.’ She referred to a male penis as a ‘butt.’ And she said that he put his private in her private on several occasions, that he would also rub his private and touch her private and slimy white stuff would come out into his hand. He would throw it into the toilet.
      “She said on one occasion in particular the slimy white stuff went into her private. She got up, went into the bathroom to clean herself with toilet paper. She said, interestingly enough, that her mother almost caught them, but that when her mother came to the bathroom, she was a little nervous. So, she said,‘I just told my mother I was going to the bathroom.’ . . . [S]he said that it would happen in the bathroom, his bedroom and her bedroom.
      “She said that he told her not to tell because her mother would hit her if she did tell. She said that her sister had — her older sister had witnessed this happening. And she said that it would make her throw up. Oh, and I’m sorry. She also said that he put his private in her bottom and that it hurt her, and her mother gave her medicine to help her to go to the bathroom.”

       The Troupe court stated that despite having been discredited in contemporary times, “many people still adhere to the [unfounded] belief that a rape victim ordinarily will report the crime and that the failure of the victim to do so casts doubt on the credibility of the accusation.” State v. Troupe, supra, 237 Conn. 301.

       We also note that it was clear from the context in which the objection was raised and the ensuing discussion regarding that objection that the defendant was seeking to exclude that portion of the witness’ testimony providing improper details of the victim’s hearsay statement. Thus, it was implicit in the objection itself that the defendant was requesting that the objectionable material be struck. To conclude otherwise would be to elevate form over substance. See Hackenson v. Waterbury, supra, 124 Conn. 684 (where party raised successful objection to testimony, jury may not, in absence of motion to strike, consider that testimony as evidence).

       It should be noted, however, that pursuant to the court’s discretion in evidentiary matters, it is, strictly speaking, the court’s admission of the evidence, and not the court’s violation of its ruling on the motion in limine, that is the appealable error.

       Although not relevant to the central analysis of the issue, we note for the record that contrary to the state’s offer of proof, the crisis counselor is not a social worker and does not hold a degree in social work. She described herself as a “child crisis counselor,” and listed her professional degrees as a bachelor of science in elementary education, a master of science in counseling with a certification in school counseling, kindergarten through grade twelve, and a Connecticut state certification in sexual abuse counseling.

       The record is silent as to the victim’s subjective expectation or belief regarding the purpose of the interview. Cf. State v. Maldonado, 13 Conn. App. 368, 372, 536 A.2d 600, cert. denied, 207 Conn. 808, 541 A.2d 1239 (1988). For the reasons discussed in the text of this opinion, we conclude that the circumstances of the present case do not support an inference that the victim necessarily believed that the purpose of that interview was to provide medical diagnosis or treatment.

       The state’s argument confuses testimony elicited from a victim during cross-examination with that elicited from an eyewitness. The half-sister’s testimony was restricted to those events that she herself had witnessed. The statements elicited from the constancy witnesses, the department worker and the crisis counselor, related not to the half-sister’s statements, but rather to the statements made by the victim. Thus, the constancy testimony was not being used to rehabilitate the testimony of either the half-sister or the victim.

       On appeal, however, the defendant has limited his argument to the sixth amendment confrontation claim. We restrict our review accordingly.

       The defendant’s argument in support of in camera review of the department records consisted of the following presentation: “Certainly, I don’t know, first off, I don’t know what is in those volumes. Okay. My client tells me that a [department] case was opened on these children prior to these allegations. The mother of the children has been charged. She will not talk to me without counsel, and the children are obviously off limits at this point in time. The only information I have for the court is as what my client states it is, but, be that as it may, the following features should be noted by the court. It is a situation where [the defendant] is charged with a serious sexual assault. The only evidence the state has is, of course, the children. Their statements. There’s no physical evidence certainly linking any abuse to my client. With that background, obviously the credibility of the children is paramount to the issues of the case, and anything in their volumes which would indicate — which will allow me to confront these witnesses effectively should be reviewed and, if it’s there, should be then disclosed.
      “His sixth amendment — he has a sixth amendment right to confront the witnesses against him. That has been embodied in article first, § 8, of our [state] constitution. He has a right to confront his witnesses. That is commonly defined as the right to cross-examine, and cross-examination includes any issues of credibility, bias or motive for testimony.
      “So, I would submit to Your Honor, the facts of the case alone compel the court to at least, at the very nunimum, do the in camera inspection. There is an abundance of case law that would support the proposition that this is the procedure that should be engaged, and there is now a Practice Book rule specifically on it. I could not call anybody to the [witness] stand right now other than [the department] or one of its agents to give the information to Your Honor. I just don’t know what’s in the file, and I think Your Honor should review it and, if it’s there, disclose it to me.
      “As to the specifics, I would ask Your Honor, again, do an in camera inspection. I would ask [that] Your Honor review the documents for any [department] incidents reported prior to the dates of the allegations. I would ask Your Honor for a disclosure of any psychiatric or psychological disorders noted in allegations either before or after these incidents. I would ask Your Honor for any information surrounding medications that these children might have received, and I would ask Your Honor for disclosure of any acts of character which would be fair for me to cross-examine about. Specifically, stealing, disciplinary problems either in school, home or in the community. Any sexual misconduct, and certainly his due process rights would compel Your Honor to disclose anything exculpatory.”