Real Estate Connecticut v. Koenig, No. Cv99 035 98 69 S (Apr. 15, 1999)

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]

MEMORANDUM OF DECISION RE: MOTIONS TO DISMISS (DOCKET ENTRIES 103, 107 AND 114) The plaintiffs, Real Estate Connecticut and Nicholas H. Fingelly Real Estate (the plaintiffs), filed a six-count complaint against the following defendants: (1) Elliot and Evelyn Koenig, Kenneth Koenig (Koenig); (2) Stephen Lerner (Lerner); (3) Joseph F. McKeon, Joseph F. McKeon, Jr., P.C. (McKeon); and (4) Robert Ashkins and Cohen Wolf, P.C. (Ashkins and Cohen Wolf). The plaintiffs filed their complaint on January 20, 1999 pursuant to the accidental failure of suit statute, General Statutes §52-592. The complaint bears a defective return date of January 26, 1998.

Ashkins and Cohen Wolf, the Koenigs and McKeon have filed motions to dismiss the plaintiffs' complaint on the grounds that: the return date is invalid; process on the defendants was insufficient; and the plaintiffs' complaint was filed after the one year period allowed pursuant to § 52-592. The plaintiffs have file a motion to amend process, to which the defendants object. The plaintiffs have filed objections to the defendants' motions to dismiss. The matter was heard by the court on March 15, 1999.

Practice Book § 10-31(a) provides: "The motion to dismiss shall be used to assert (1) lack of jurisdiction over the subject matter, (2) lack of jurisdiction over the person, (3) improper venue, (4) insufficiency of process, and (5) insufficiency of service of process. This motion shall always be filed with a supporting memorandum of law, and where appropriate, with CT Page 4887 supporting affidavits as to facts not apparent on the record."

A. Defective Return Date Defendants Ashkins and Cohen Wolf filed a motion to dismiss (#103) on February 11, 1999, arguing that the defective return date on the summons deprives the court of personal jurisdiction over Ashkins and Cohen Wolf.¹ The plaintiffs filed a motion to amend process (# 105) on February 11, 1999, pursuant to General Statutes § 52-72.² Ashkins and Cohen Wolf filed an objection to the plaintiffs' motion to amend process (# 109) on the ground that the request to amend was filed after their motion to dismiss, which the court should consider first.³

The Supreme Court has stated that "``[i]t appears that [§52-72] was enacted in response to decisions of this court holding that an improper return date was a jurisdictional defect that could not be corrected' [and has] also pointed out that ``[i]ndeed, this court has stated that the purpose of § 52-72 is to provide for amendment of otherwise incurable defects that go to the court's jurisdiction. . . . It determined that ``[t]he apparent intent of the legislature in enacting § 52-72 was to prevent the loss of jurisdiction merely because of a defect of return date.'" (Citations omitted; Internal quotation marks omitted.) Haigh v. Haigh, 50 Conn. App. 456, 464, 717 A.2d 837 (1998).

Therefore, the motion to dismiss for failure to indicate a proper return date should be denied, because the policy behind § 52-72 indicates that an improper return date is the type of error that can be corrected pursuant to § 52-72. Furthermore, the request to amend the return date, which was filed on the same date as Ashkins and Cohen Wolf's motion to dismiss, is timely and is granted).⁴

B. Accidental Failure of Suit Claims The Koenigs argue in their "Supplemental Memorandum of Law In Support of Motion To Dismiss" (# 111) that the plaintiffs made service on the Koenigs beyond the one year limitation of the accidental failure of suit statute. This argument is also raised in Ashkins and Cohen Wolf's "Supplemental Memorandum of Law In Support of Motion To Dismiss" (# 116), as well as McKeon's motion to dismiss (# 114). CT Page 4888

General Statutes § 52-592(a) provides in pertinent part: "If any action, commenced within the time limited by law, has failed one or more times to be tried on its merits because of insufficient service or return of the writ due to unavoidable accident or the default or neglect of the officer to whom it was committed, or because the action has been dismissed for want of jurisdiction . . . or a judgment of nonsuit has been rendered or a judgment for the plaintiff reversed, the plaintiff . . . maycommence a new action . . . for the same cause at any time withinone year after the determination of the original action or after the reversal of the judgment." (Emphasis added.) "In Connecticut, ``an action is commenced not when the writ is returned but when it is served on the defendant.' Broderick v. Jackman,167 Conn. 96, 99, 355 A.2d 234 (1974). ``This court has long held that an action is brought once the writ, summons and complaint have been served upon a defendant.' Rana v. Ritacco,236 Conn. 330, 337, 672 A.2d 946 (1996). ``In our jurisdiction, an action is commenced on the date of service upon the defendant.' Balboa v.Zaleski, 12 Conn. App. 529, 533, 532 A.2d 973 (1987)." Battagliav. Colonial Condominium Association, Inc., Superior Court, judicial district of Stamford/Norwalk at Stamford, Docket No. 157598 (March 24, 1998, Karazin, J.) (21 Conn. L. Rptr. 572, 574).

According to the docket sheet, the plaintiffs' original action was dismissed on December 12, 1997 pursuant to Practice Book § 251, now Practice Book (1998 Rev.) § 14-3. RealEstate Connecticut v. Koenig, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. 322470. The sheriff's return attached to the plaintiffs' complaint in this action indicates that the sheriff served the defendants on December 22, 1998. It is clear that the plaintiffs failed to commence this action within one year from the dismissal of the prior action⁵, and therefore cannot take advantage of the accidental failure of suit statute.⁶ Furthermore, the plaintiffs may not take advantage of the saving provision in General Statutes § 52-593a.⁷ Pursuant to §52-593a(a), the plaintiffs were required to deliver process to the sheriff within one year from the date the original action was dismissed, December 12, 1997. Process was not delivered by the plaintiffs until December 14, 1998⁸. (Plaintiffs' Consolidated Memorandum In Support of Their Objections To The Defendants' Motions To Dismiss, Exhibit A, Affidavit of Deputy Sheriff Joan A. Swanson). CT Page 4889

Accordingly, the defendants' motions to dismiss the plaintiffs' complaint is granted for lack of jurisdiction.⁹ See Biro v. Sidley Austin, Superior Court, judicial district of Stamford/Norwalk at Stamford, Docket No. 149415 (October 1, 1996, Tobin, J.) (17 Conn. L. Rptr. 629) (failure to meet requirements of § 52-592 could be considered a jurisdictional bar because where a specific time limitation is contained within a statute that creates a right of action that did not exist at common law, then the remedy exists only during the prescribed period).

SKOLNICK, J.