Opinion
No. CV 08 4008858
August 6, 2008
MEMORANDUM OF DECISION RE MOTION TO DISMISS APPEAL FROM PROBATE
Defendants Louis S. D'Amico and Rita D. Willis, Co-Administrators of the Estate of the late Salvatore D'Amico have filed a Motion to Dismiss this appeal from Probate upon the ground of untimeliness. Public Act 07-116, effective October 1, 2007, amended General Statutes § 45a-186 to provide the requirement that all appeals from probate court be filed "not later than thirty days after mailing of an order, denial or decree for any other matter" with the Superior Court. General Statutes § 45a-186. In the present case, the Middletown Probate Court sent notice of its adverse decision on March 27, 2008. The plaintiff filed his appeal to this court on June 4, 2008. As the amendment to § 45a-186 was in effect at that time, the defendants are correct in their assertion that plaintiff's appeal is untimely.
"The right to appeal from a decree of the Probate Court is purely statutory and the rights fixed by statute for taking and prosecuting the appeal must be met." State v. Goggin, 208 Conn. 606, 615, 547 A.2d 250 (1988). "The effect of a failure to file an appeal on time is to make the appeal voidable but not void . . . The statute of appeals is principally and primarily concerned with the rights of the parties rather than with the powers of the probate court . . . [T]he statute limiting the time for taking appeals from probate is a statute of limitations in the ordinary sense, and was intended primarily and principally to limit the right of the appellant and to protect the rights of the appellee, and not to limit directly and absolutely the power of the probate court to allow an appeal after the time has passed or to affect the jurisdiction of the Superior Court over an appeal, so allowed, if not objected to in the proper way and at a proper time." (Citation omitted; internal quotation marks omitted.) Heiser v. Morgan Guaranty Trust Co., 150 Conn. 563, 566-67, 192 A.2d 44 (1963). However, when an appeal is voidable, the court must grant a timely motion to dismiss. Id., 567.
The courts in each of the following cases granted a motion to dismiss based on lack of subject matter jurisdiction when the appeal from the probate court was untimely filed: Estate of Kenny v. Probate Appeal, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV07 4012194 (October 11, 2007, Robinson, J.); Onate v. Probate Appeal, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 07 4011010 (May 31, 2007, Adams, J.) (43 Conn. L. Rptr. 661); Zuckerman v. Zuckerman, Superior Court, judicial district of Ansonia-Milford, Docket No. CV 000071541 (March 17, 2003, Moran, J.); Rukstela v. Rukstela, Superior Court, judicial district of Windham, Docket No. 066501 (May 13, 2002, Foley, J.) (32 Conn. L. Rptr. 137); and Paiva v. Probate Court, Superior Court, judicial district of Waterbury, Docket No. FA 98 0144267 (April 14, 2000, Leheny, J.).
Conclusion
For the foregoing reason, the defendants' Motion to Dismiss is granted.