Caldwell-Gaines v. Com. on Human Rts. Opp., No. Cv970568301 (Sep. 4, 1997) , 1997 Conn. Super. Ct. 8875 ( 1997 )

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]RULING RE MOTION TO DISMISS The defendant moves to dismiss this appeal on the grounds that the late filing and service of the appeal deprives this CT Page 8876 court of jurisdiction.

The pleadings and affidavit of Eric L. Guthrie, Assistant Commission counsel for the defendant, establish that the final decision of the defendant was mailed on December 31, 1996 This appeal was filed on February 18, 1997. Service of this appeal on the defendant occurred on February 17, 1997 by certified mail.

A motion to dismiss properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court. Gurliacci v. Mayer, 218 Conn. 531, 544 (1991). "A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." Upson v.State, 190 Conn. 622, 624 (1983). The court must fully resolve any jurisdictional question before considering the merits of the appeal. Castro v. Viera, 207 Conn. 420, 429 (1988). Section §4-183 (c) provides that an appeal of an administrative decision must be filed in the superior court and served on all parties of record "(w)ithin forty-five days after mailing of the final decision . . . or, if there is no mailing, within forty-five days after personal delivery of the final decision under (§ 4-180)." Failure to file an appeal within the forty-five day time period deprives the court of subject matter jurisdiction.Glastonbury Volunteer Ambulance Association. Inc. v. Freedom ofInformation Commission et al, 227 Conn. 848 (1993). The failure to serve the appeal within the statutory time limit deprives the court of subject matter jurisdiction. Raines v. Freedom of InformationCommission, 221 Conn. 482, 487 (1992).

Since this is a statutory action, strict compliance with the statutory provisions is required Connecticut Bank Trust Co. v.CHRO, 202 Conn. 150, 154-155 (1987). Here the appeal was filed and served beyond the forty five day period set forth in the statute. Accordingly, this court lacks subject matter jurisdiction.

The Motion to Dismiss is granted.

DiPentima, J.