Bell v. Colson, No. 93-0355098 (Feb. 28, 1994) ( 1994 )

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] MEMORANDUM OF DECISION AS TO MOTIONS TO DISMISS AND REQUEST FOR LEAVE TO AMEND The defendants have moved to dismiss the complaint in this personal injury action because process was not returned to court in timely fashion after service upon them. The plaintiff has objected to the motion and has moved to amend her complaint to designate a new return day.

Examination of the file reveals that process was served on the defendants on December 2, 1993, and that process was not returned to court until December 3, 1993, only four days prior to the designated return day, December 7, 1993. Pursuant to 52-46a C.G.S., process returnable to the Superior Court must be returned at least six days before the return day. Compliance with 52-46a C.G.S. has been held to be mandatory, and failure to comply with the requirements of the statute renders the proceedings voidable and subject to dismissal. Rogozinski v. American Food Equipment Corp., 211 Conn. 431, 559 A.2d 1110 (1989); Concept Associates, Ltd. v. Board of Tax Review, 31 Conn. App. 793, 796, 627 A.2d 471 (1993); Arpaia v. Corrone, 18 Conn. App. 539, 540-41, 559 A.2d 719 1989; Bergin v. Bergin, 3 Conn. App. 566, 490 A.2d 543, cert. denied, 196 Conn. 806, 404 A.2d 903 (1985).

While improperly specified return dates may be amended pursuant to 52-72 C.G.S., Carlson v. Fisher. 18 Conn. App. 488-495-6 (1989), the Appellate Court has clearly stated that amendment may not be used to cure the defect of a late return of process to the court. Concept Associates, Ltd. v. Board of Tax Review, supra,31 Conn. App. 796-7; Arpaia v. Corrone, supra. See Safford v. Morris Metal Products Co., 99 Conn. 372, 121 A. 885 (1923); Denison v. Crafts, 74 Conn. 38, 49 A. 351 (1901). This court is therefore not free, as the plaintiff suggests, to follow pre Arpaia trial court rulings, such as Brandriff v. Sellas, 40 Conn. Super. Ct. 243, 244, CT Page 2074488 A.2d 853 (1985) which allowed amendment.

The plaintiff's failure to return the process to court at least six days before the return day, as required by 52-46a C.G.S., is a defect which is not curable by amendment.

The request for leave to amend is denied.

The motion to dismiss is granted.

Beverly J. Hodgson Judge of the Superior Court