Canale v. KBE Building Corp.

Full title: Mary Canale v. KBE Building Corporation et al

Court: Superior Court of Connecticut

Date published: Sep 5, 2017

UWYCV156026262S (Conn. Super. Ct. Sep. 5, 2017)

Opinion

UWYCV156026262S

09-05-2017

Mary Canale v. KBE Building Corporation et al

Hon. Rupal Shah, J.

UNPUBLISHED OPINION

Filed September 7, 2017

AMENDED MEMORANDUM OF DECISION REGARDING MOTION TO DISMISS, #226

Hon. Rupal Shah, J.

The defendant, Silvia Zofio, moves to dismiss the plaintiff's amended complaint and the apportionment complaints against her for lack of personal jurisdiction due to improper service of process under Practice Book § 10-30. The plaintiff and apportionment plaintiffs object and claim service was properly made upon Ms. Zofio. After consideration, the court denies the motion to dismiss.¹

1 The court initially denied Ms. Zofio's motion to dismiss on August 3, 2017. Subsequently, on August 10, 2017, Ms. Zofio filed a motion to reconsider on the basis that 110 W. 87th Street is not her business address. The court issues an amended memorandum to accurately reflect that Ms. Zofio contested that such address was a business address. This correction does not alter the court's analysis that service was properly made.

I

BACKGROUND

The plaintiff, Mary Canale, initiated this action by summons and complaint on January 26, 2015, against the defendants, KBE Building Corp., Innovative Millwork Fabrications, LLC, and Dean Smith, claiming negligence regarding an alleged design and construction defect at the plaintiff's place of employment that caused the roof to collapse on her resulting in various injuries. On March 9, 2015, the plaintiff's employer and intervening plaintiff, MCI Healthcare, LLC, intervened in this action for purposes of recovery and reimbursement of worker's compensation payments that may be due to the plaintiff. Subsequently, Dean Smith filed an apportionment complaint on July 6, 2015, against the apportionment defendant, Scott Koniecko Architects, P.C. (SKA), alleging, inter alia, negligence for failing to properly design the ceiling. The plaintiff then pleaded over to assert a direct claim of negligence against SKA on August 31, 2015.² Hence, SKA filed an apportionment complaint on November 2, 2015, against apportionment defendants, Silvia Zofio, a resident of New York, and SZ Projects, LLC, a New York Company, alleging, inter alia, that they negligently renovated and designed the premises at issue resulting in the collapsed ceiling. Thereafter, the plaintiff pleaded over and initiated direct actions in negligence against Ms. Zofio and SZ Projects, LLC on December 17, 2015. On September 21, 2016, this action was consolidated with another case, Canale v. Joseph Benigno Engineering Associates, Inc., Superior Court, judicial district of Waterbury, Docket No. CV-16-6031528-S, .³

2 A plaintiff can " plead over" to an apportionment complaint. General Statutes § 52-102b(d) provides in relevant part: " [T]he plaintiff may, within sixty days of the return date of the apportionment complaint . . . assert any claim against the apportionment defendant arising out of the transaction or occurrence that is the subject matter of the original complaint." The plaintiff need not serve the complaint to plead over. " [O]nce the apportionment defendant has been served and is in the case as a party, additional service is not required of the claim under subsection (d) to acquire personal jurisdiction over an existing party." Shepard v. Chelsea Square Condominium Ass'n, Inc., Superior Court, judicial district of Waterbury, Docket No. CV-11-6008169-S (December 1, 2011, Trombley, J.) (53 Conn.L.Rptr. 49, ).

3 Ms. Zofio also moved to dismiss the complaint and apportionment complaints in the companion case, Canale v. KBE Building Corp., supra, Superior Court, Docket No. CV-15-6026262-S, . These matters, although consolidated, have different defendants. Accordingly, separate, although closely related, decisions have been issued for each case.

In SKA's return of service, attached to its apportionment complaint, Marshal Nikola attests that service was effectuated pursuant to General Statutes § 52-59(b) on October 28, 2015, by serving the Secretary of State along with a check for the statutory fee of $50.00. Thereafter, service was sent to Ms. Zofio, at 278 E. 10th Street, Apartment 5D, New York, New York, and SZ Projects, LLC at 110 W. 87th Street, Apartment 1B, New York, New York.

On April 20, 2017, Ms. Zofio moved to dismiss the claims against her for lack of personal jurisdiction due to insufficient service of process. On May 19, 2017, SKA filed an objection. On June 2, 2017 the plaintiff objected to Ms. Zofio's motion to dismiss.⁴ The matter was heard at short calendar on July 10, 2017.

4 The plaintiff in her objection explicitly adopted the legal and factual assertions made in SKA's brief.

II

DISCUSSION

" [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." (Internal quotation marks omitted.) Santorso v. Bristol Hospital, 308 Conn. 338, 350, 63 A.3d 940 (2013). " A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) MacDermid, Inc. v. Leonetti, 310 Conn. 616, 626, 79 A.3d 60 (2013). Specifically, Practice Book § 10-30(a) provides that: " A motion to dismiss shall be used to assert: (1) lack of jurisdiction over the subject matter; (2) lack of jurisdiction over the person; (3) insufficiency of process, and (4) insufficiency of service of process."

" When a trial court decides a jurisdictional question raised by a pretrial motion to dismiss on the basis of the complaint alone, it must consider the allegations of the complaint in their most favorable light . . . In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader." (Internal quotation marks omitted.) Conboy v. State, 292 Conn. 642, 651, 974 A.2d 669 (2009).

" In contrast, if the complaint is supplemented by undisputed facts established by affidavits submitted in support of the motion to dismiss . . . other types of undisputed evidence . . . and/or public records of which judicial notice may be taken . . . the trial court, in determining the jurisdictional issue, may consider these supplementary undisputed facts and need not conclusively presume the validity of the allegations of the complaint . . . Rather, those allegations are tempered by the light shed on them by the [supplementary undisputed facts] . . . If affidavits and/or other evidence submitted in support of a defendant's motion to dismiss conclusively establish that jurisdiction is lacking, and the plaintiff fails to undermine this conclusion with counter affidavits . . . or other evidence, the trial court may dismiss the action without further proceedings . . . If, however, the defendant submits either no proof to rebut the plaintiff's jurisdictional allegations . . . or only evidence that fails to call those allegations into question . . . the plaintiff need not supply counter affidavits or other evidence to support the complaint, but may rest on the jurisdictional allegations therein." (Citations omitted; emphasis in original; footnote omitted; internal quotation marks omitted.) Conboy v. State, supra, 292 Conn. 651-52.

In her memorandum in support of her motion to dismiss, Ms. Zofio asserts that the court lacks personal jurisdiction over her. Ms. Zofio argues that § 52-59b was not complied with, as she was never served at her last known address. Ms. Zofio states that she has never resided at the 278 E. 10th Street address; furthermore, she asserts that 110 W. 87th Street is not her business address. Consequently, Ms. Zofio argues that service was improper and the actions against her must be dismissed. In its objection, SKA argues that service upon Ms. Zofio was proper, as it was effectuated at her last known address. Furthermore, SKA asserts that it made reasonably diligent and persistent efforts to serve Ms. Zofio at her correct address.

The standard regarding the sufficiency of service of process is well established in Connecticut. " [W]hen a particular method of serving process is set forth by statute, that method must be followed . . . Unless service of process is made as the statute prescribes, the court to which it is returnable does not acquire jurisdiction . . . The jurisdiction that is found lacking . . . is jurisdiction over the person . . ." (Internal quotation marks omitted.) Morgan v. Hartford Hospital, 301 Conn. 388, 400, 21 A.3d 451 (2011). " Failure to comply with the statutory requirements of service renders a complaint subject to a motion to dismiss on the ground of lack of personal jurisdiction . . . Facts showing the service of process in time, form, and manner sufficient to satisfy the requirements of mandatory statutes in that regard are essential to jurisdiction over the person." (Internal quotation marks omitted.) Id., 401.

General Statutes § 52-59b, the Connecticut long-arm statute, provides a means of serving process on out of state defendants. The statute provides in relevant part: " (a) As to a cause of action arising from any of the acts enumerated in this section, a court may exercise personal jurisdiction over any nonresident individual . . . who in person or through an agent: (1) Transacts any business within the state; (2) commits a tortious act within the state . . .

" (c) Any nonresident individual . . . over whom a court may exercise personal jurisdiction, as provided in subsection (a) of this section, shall be deemed to have appointed the Secretary of the State as its attorney and to have agreed that any process in any civil action brought against the nonresident individual . . . may be served upon the Secretary of the State and shall have the same validity as if served upon the nonresident individual . . . personally. The process shall be served by the officer to whom the same is directed upon the Secretary of the State by leaving with or at the office of the Secretary of the State, at least twelve days before the return day of such process, a true and attested copy thereof, and by sending to the defendant at the defendant's last-known address, by registered or certified mail, postage prepaid, return receipt requested, a like true and attested copy with an endorsement thereon of the service upon the Secretary of the State. The officer serving such process upon the Secretary of the State shall leave with the Secretary of the State, at the time of service, a fee of twenty-five dollars, which fee shall be taxed in favor of the plaintiff in the plaintiff's costs if the plaintiff prevails in any such action." General Statutes § 52-59b.

" The requirement that the copy be mailed to the defendant at his 'last known address' does not mean the last address known to the plaintiff, but does mean the last address of the defendant so far as it is known . . . by those who under the ordinary circumstances of life would know it." Hartley v. Vitiello, 113 Conn. 74, 80, 154 A. 255 (1931). " A plaintiff must use diligent and persistent efforts . . . to determine the actual address of the defendant . . ." (Citation omitted; internal quotation marks omitted.) Matthews v. SBA, Inc., 149 Conn.App. 513, 533, 89 A.3d 938 (2014); quoting, Cadlerock Joint Venture II, L.P. v. Milazzo, 287 Conn. 379, 395, 949 A.2d 450 (2008).

Connecticut courts have held that the last known address requirement of § 52-59b has been met if the serving party makes a reasonably diligent search, and serves an address based on that inquiry. See Ortega v. Sutch, Superior Court, judicial district of Middlesex, Docket No. CV-11-6004497-S, (October 12, 2011, Wiese, J.) (" the Superior Court has held that plaintiffs who do not send process to the defendant's actual address can satisfy the last known address requirement by providing evidence of their effort to locate the defendant"); Varrone v. Outman, Superior Court, judicial district of Waterbury, Docket No. CV-09-6001755-S, (March 12, 2010, Gallagher, J.) (" [e]vidence that the plaintiff conducted a formal search before sending service to the defendant's address is sufficient to show the plaintiff used a proper last-known address, ' as required by Hartley ").

In determining whether a defendant made a reasonably diligent search before serving a party's last known address, factors such as the use of public information and utilization of other resources can be considered. See Harris v. Wood, Superior Court, judicial district of Litchfield, Docket No. CV-10-6002010-S, (December 9, 2010, Danaher, J.) (plaintiff satisfied requirements of § 52-59b[c] by conducting search and sending process to defendant's last known address obtained from most recent employer); Updike, Kelly & Spellacy, P.C. v. Beckett, Superior Court, judicial district of Hartford, Complex Litigation Docket, Docket No. X03-CV-04-97890-S (March 6, 2002, Aurigemma, J.) (31 Conn.L.Rptr. 500, ) (address provided by defendant-client on plaintiff-law firm's client questionnaire constituted defendant's last known address for purposes of § 52-59b[c] where plaintiff had no reason to search elsewhere for defendant); Prudential Home Mortgage Co. v. Gajnos, Superior Court, judicial district of Litchfield, Docket No. CV-95-0060886-S (November 17, 1995, Pickett, J.) (service of process effective under § 52-59b[c] where plaintiff sent notice to address determined by search firm to be defendant's last-known address).

Furthermore, courts construing the last known address requirement of § 52-59b have generally held that service at the last known business address of the defendant is sufficient to confer jurisdiction. The federal district court in Goktepe v. Lawrence, 220 F.R.D. 8 (D.Conn. 2004), applied § 52-59b(c) and held that service at the defendant's business address satisfied the last known address requirement of the statute. The court noted: " [The defendant] argues that the reference to 'last known address' in § 52-59b(c) means last known home address, not business address . . . The defendant's argument runs headlong into Connecticut case law, however. For Connecticut courts have uniformly construed § 52-59b(c) contrary to the interpretation urged by the defendant in this case." (Citation omitted; emphasis in original.) Id., 12. In Horniatko v. Riverfront Assoc., LLC, Superior Court, judicial district of Hartford, Docket No. CV-04-4000332-S (June 21, 2005, Shapiro, J.) (39 Conn.L.Rptr. 566, ), the plaintiff named both a business entity and its manager as defendants. The marshal in that case properly served the defendant-business, and attempted to effectuate service on the defendant-manager pursuant to § 52-59b(c) by serving the Secretary of State. The marshal, however, sent a copy of the process to an address that the manager never resided at. The manager filed a motion to dismiss for lack of personal jurisdiction. The court, in denying the motion to dismiss, concluded that service at the manager's last known business address was sufficient to comply with § 52-59b. " Since service was mailed to the Secretary of the State, and to [the defendant] at his last known business address, service on him was made in conformance with General Statute § 52-59b." (Emphasis added.) Id. See also Murphy v. Safelite Fulfillment, Inc., Superior Court, judicial district of Hartford, Docket No. CV-09-5026299-S (January 27, 2010, Peck, J.) (49 Conn.L.Rptr. 276, ) (business address complied with last known address requirement under § 52-59b); Celik v. Dundar, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV-95-0142921-S, (July 12, 1995, D'Andrea, J.) (same); Tek Motive, Inc. v. AFB, Inc., Superior Court, judicial district of New Haven, Docket No. CV-93-0349298-S, (November 12, 1993, Zoarski, J.) (same).

The last known address requirement of § 52-59b can be met by serving either the party's last known address or last known business address. This is consistent with the language of § 52-59b. " Section 52-59b does not require that service be effectuated at the defendant's actual residence. Where the legislature has intended that service be made to a defendant's residence, it has provided specifically for that procedure. See, for example, General Statutes § 52-57(a), which provides for service of a defendant at his usual place of abode." (Internal quotation marks omitted.) Murphy v. Safelite Fulfillment, Inc., supra, Superior Court, Docket No. CV009-5026299, quoting Celik v. Dundar, supra, Superior Court, Docket No. CV950142921, n.3, at *5.

In the present case, service was properly made upon Ms. Zofio at both her last known address, and at her last known business address. The evidence submitted by SKA shows that it made a reasonably diligent effort to serve Ms. Zofio at her last known address. Per its brief and affidavit (Docket No. #244), SKA attempted service at three different addresses, several of which were produced through Lexis Advance Public Record searches, and attempted thereafter to ascertain Ms. Zofio's whereabouts by inquiring of the residents at those locations. After failing to ascertain her present whereabouts, SKA ultimately served addresses with a basis in the public record. Exhibit B, attached to SKA's affidavit, shows that the 110 W. 87th Street address was listed as the address for service of process for SZ Projects, LLC on the New York State Department of State, Division of Corporations website, and lists Ms. Zofio as a party to whom service is to be directed. Additionally, per SKA's exhibit C, the 278 E. 10th Street address was listed as Ms. Zofio's address by the New York State Department of State, State Tax Warrant Notice System website as of July 1, 2015, several months before service was attempted.

In light of the record presented, it is clear that SKA made reasonably diligent and persistent attempts to properly effectuate service upon Ms. Zofio. SKA sent process to two addresses that were based upon public information presumably provided by Ms. Zofio, and conducted a search to determine any other possible address. This militates in favor of the conclusion that Ms. Zofio's " last known address" was served pursuant to § 52-59b. See Varrone v. Outman, supra, Superior Court, Docket No. CV-09-6001755-S, (search and use of available information sufficient to meet requirements of § 52-59b); Updike, Kelly & Spellacy, supra, Superior Court, Docket No. X03-CV-04-97890-S, (information provided by the plaintiff regarding address for service could be relied upon in determining sufficiency of last known address served). Accordingly, SKA has satisfied the last known address requirement of § 52-59b, by conducting a diligent search, and by serving what SKA reasonably believed to be Ms. Zofio's last known address, and last known business address. See, e.g., Harris v. Wood, supra, Superior Court, Docket No. CV-10-6002010-S, (service at last known address); Horniatko v. Riverfront Assn., LLC, supra, Superior Court, Docket No. CV-04-4000332-S, (service at last known business address). Despite Ms. Zofio's contention that her actual address was readily ascertainable, there is no evidence indicating what her address at the time of service actually was, or that such information was available to SKA.⁵ Under the circumstances then, it was reasonable for SKA to rely on the public information available to them. See Varrone v. Outman, supra, Superior Court, Docket No. CV-09-6001755-S, (" [i]f it is the plaintiff's duty to find the correct address of the defendant for service, the plaintiff's compliance with that duty must be evaluated with regard to the tools available to him . . ."). Consequently, the court finds that it has personal jurisdiction over Ms. Zofio.

5 The defendant was served at her actual business address in the companion case Canale v. Joseph Benigno Associates, supra, Superior Court, Docket No. CV-16-6031528-S, . There is no indication in the record as submitted, however, of when this address became her business address. Service in the companion case took place over a year later from when service was attempted in this matter, and there is no indication in the record that this address was available to SKA at the time of service. Furthermore, Ms. Zofio did not set up any forwarding address for any of the addresses served. See DeManche v. Downs, Superior Court, judicial district of Hartford, Docket No. CV 96 0559483 (March 5, 1997, Sullivan, J.) (19 Conn.L.Rptr. 259, ) (" [i]t is probable that this process [by registered mail] would have come to the attention of the defendant had he taken customary, reasonable and prudent steps of maintaining a forwarding address at the post office"). Therefore, as the addresses served in this matter were the only ones available to SKA, it was reasonable to rely upon them.

III

CONCLUSION

For the foregoing reasons, the defendant's motion to dismiss is denied.

So ordered.