Cazimovski v. Retro Clubs, Inc., No. 130900 (May 28, 1996) , 1996 Conn. Super. Ct. 4332-XX ( 1996 )

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] MEMORANDUM OF DECISION RE: DEFENDANT'S MOTION TO DISMISS (#104) The plaintiff, Ferkie Cazimovski, brings this action against the Retro Clubs, Inc., d/b/a Bopper's of Waterbury, and its permittee, Beverly L. Olsen, for injuries allegedly sustained as a result of an assault by a fellow patron. The second count of the complaint alleges a violation of the Connecticut Dram Shop Act, Connecticut General Statutes § 30-102. The defendants CT Page 4332-YY move to dismiss this count of the complaint claiming that the action was not commenced within the one year of the alleged incident as mandated under § 30-102.

Section 30-102 provides that "[n]o action under the provisions of this section shall be brought but within one year from the date of the act or omission complained of." The Dram Shop statute "fixes the time within which the right must be enforced, the time fixed is a limitation or condition attached to the right — it is a limitation of the liability itself as created, and not of the remedy alone." Forbes v. Ballaro,31 Conn. App. 235, 239, 624 A.2d 389 (1993). Therefore, this period of limitation is considered substantive, rather than procedural, and implicates the subject matter jurisdiction of this court.Moore v. McNamara, 201 Conn. 16, 22-23, 513 A.2d 660 (1986).

In the instant case, the act or omission complained of occurred during the evening of December 31, 1994, and the early morning of January 1, 1995. In Connecticut, an action is commenced on the date of service of the writ upon the defendant.Valley Cablevision v. Public Utilities Commission, 175 Conn. 30,33, 392 A.2d 485 (1978). The defendants were not served with process until January 21, 1996, and the writ, summons and complaint were not filed with this court until January 29, 1996. This case was not commenced within the one year period as required by § 30-102, this court is without subject matter jurisdiction with respect to the second count¹. Therefore, the defendants' motion to dismiss the second count of the complaint is granted.

PELLEGRINO, J.