Opinion
No. CV 04 4002473
April 28, 2005
MEMORANDUM OF DECISION RE (#104) DEFENDANT'S MOTION TO DISMISS
The plaintiff, Joseph Gallagher, filed a complaint against the defendant, Harvey Bluestein, alleging that on September 3, 2002, the motor vehicle in which he was driving was struck from behind by a vehicle owned and operated by Bluestein. Gallagher claims that the accident caused him to sustain painful and permanent injuries.
On November 12, 2004, Bluestein filed a motion to dismiss Gallagher's complaint on the ground that the Court lacks personal jurisdiction over him because he was never properly served.
Although Gallagher did not file a pleading in opposition to Bluestein's motion to dismiss, he appeared through counsel and argued against the relief sought in the motion.
A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Dyous v. Psychiatric Security Review Board, 264 Conn. 766, 773, 826 A.2d 138 (2003). "The grounds which may be asserted in [a motion to dismiss] are: (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." Zizka v. Water Pollution Control Authority, 195 Conn. 682, (1985).
"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." (Emphasis in original.) Bridgeport v. Debek, 210 Conn. 175, 179-80 (1989).
"Practice Book § 10-31(a) provides in relevant part: [The] motion [to dismiss] shall always be filed with a supporting memorandum of law, and where appropriate, with supporting affidavits as to facts not apparent on the record." Ferreira v. Pringle, 255 Conn. 330, 346 n. 10 (2001). "[I]n ruling on a motion to dismiss, the trial 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." Fort Trumbull Conservancy LLC v. New London, 262 Conn. 423, 432-33 (2003). "The motion to dismiss . . . admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone . . . Where, however . . . the motion is accompanied by supporting affidavits containing undisputed facts, the court may look to their content for' determination of the jurisdictional issue and need not conclusively presume the validity of the allegations of the complaint." Ferreira v. Pringle, supra, 255 Conn. 346-47.
In his motion to dismiss, Bluestein claims that service of process in this case failed to comply with General Statutes § 52-63 because he was never served with the writ, summons and complaint.
Although the Marshal's return of service indicates that, pursuant to § 52-63, he served Bluestein via the Commissioner of Motor Vehicles of the State of Connecticut, and by mailing a certified letter to the address on file at the office of the Commissioner of Motor Vehicles, Bluestein alleges that he was not a resident of the address that the Marshal forwarded the letter to since August 2002. He also claims that when he moved, he informed the Department of Motor Vehicles of his new address, and that he was not notified of this action until he was contacted by a representative of his insurance company.
In support of his argument, Bluestein provided an affidavit with his motion stating that in August 2002 he informed the Department of Motor Vehicles of his new of address, and again in January 2003 when he renewed his license. As evidence, he also provided a copy of his driver's license, which was issued in January 2003 and contains his new address.
General Statutes § 52-57(a) states that "[e]xcept as otherwise provided, process in any civil action shall be served by leaving a true and attested copy of it, including the declaration or complaint, with the defendant, or at his usual place of abode, in this state." "General Statutes § 52-63 [however] provides an alternate means of process on an allegedly negligent driver if it is impossible to make service of process at the operator's last known address on file in the Department of Motor Vehicles." Niskanen v. Koen, Superior Court, judicial district of New London, Docket No. 546907 (July 6, 1999, Mihalakos, J.).
General Statutes § 52-63 provides in relevant part: "(a) Any operator or owner of a motor vehicle at the time of issuance of his license or registration shall be deemed to have appointed the Commissioner of Motor Vehicles as his attorney and to have agreed that any process in any civil action against him on account of any claim for damages resulting from his alleged negligence . . . in the operation of any motor vehicle in this state may be served upon the commissioner as provided in this section and shall have the same validity as if served upon the owner or operator personally.
"(b) Service of civil process may be made on a motor vehicle operator . . . by leaving a true and attested copy of the writ, summons and complaint at the office of the Commissioner of Motor Vehicles at least twelve days before the return date and by sending such a true and attested copy at least twelve days before the return day, by registered or certified mail, postage prepaid and return receipt requested, to the defendant at his last address on file in the Department of Motor Vehicles if (1) it is impossible to make service of process at the operator's last address on file in the Department of Motor Vehicles, and (2) the operator has caused injury to the person or property of another.
"(d) If service of process is made at the office of the Commissioner of Motor Vehicles pursuant to subsection (b) . . . the officer making such service shall certify in the process that he has made a diligent effort to obtain service at the address of the owner or operator on file in the Department of Motor Vehicles and has been unable to make such service."
The present action is similar to the facts in Lucarelli v. Cianciolo, Superior Court, judicial district of Waterbury, Docket No. 0120229 (October 7, 1994, Flynn, J.), in which the defendant in that action swore on her affidavit that she was not a resident of the address listed on the summons, and that her new address was on file at the Department of Motor Vehicles. She also provided a copy of her driver's license, which contained her new address. The court held, however, that "the question is what was the last address on file . . . when the sheriff made service." Id. The court credited the sheriff's affidavit, which stated that the address on file at the Department of Motor Vehicles was the defendant's old address, and, for that reason, denied the defendant's motion to dismiss.
The defendant in Niskanen v. Koen, supra, Superior Court, Docket No. 546907, also filed a motion to dismiss on the same grounds as Bluestein, arguing that he notified the Department of Motor Vehicles of his change of address. The court in that case also credited the sheriff's return of process, wherein he attested that the defendant's address on file at the Department of Motor Vehicles was the old address, and the court, therefore, denied the motion to dismiss.
In the instant case, the marshal made a return of service in which he indicated he could not find the defendant at the address on file with the Department of Motor vehicles of the State of Connecticut. In an additional return, the marshal attests that he made service on the defendant pursuant to § 52-63, C.G.S. by leaving a true and attested copy of the process in the Office of the Commissioner of Motor Vehicles and by mailing a copy to the defendant at the address on file at the Office of the Commissioner of Motor Vehicles.
"[T]he court [should] proceed [next] to determine whether service of process was made in compliance with General Statutes § 52-63." Id. "Service of civil process may be made on a motor vehicle operator . . . by leaving a true and attested copy of the writ, summons and complaint at the office of the Commissioner of Motor Vehicles at least twelve days before the return date and by sending such a true and attested copy at least twelve days before the return day, by registered or certified mail, postage prepaid and return receipt requested, to the defendant at his last address on file in the Department of Motor Vehicles if (1) it is impossible to make service of process at the operator's last address on file in the Department of Motor Vehicles, and (2) the operator has caused injury to the person or property of another." General Statutes § 52-63(b).
The court finds, in the instant case, that the marshal's return of process fulfills the requirements of § 52-63(b).
"Service on a person at his last address on file with the department of motor vehicles would be impossible if (1) the officer [was] unable to obtain sufficient access into a structure in order to make proper service, (2) the defendant no longer resided at the address or maintained it as an abode, or (3) no such address existed." (Internal quotation marks omitted.) Moses v. Kunst, Superior Court, judicial district of New Haven, Docket No. 0452348 (October 1, 2001, Zoarski, J.T.R.) ( 30 Conn. L. Rptr. 458). "[I]mpossibility, as used in § 52-63(b), does not require that absolute physical impossibility exists but includes factual situations . . . where several unsuccessful attempts to serve or to verify the defendants' usual abode revealed that there was little likelihood of successful in hand or abode service." Hibner v. Bruening, 78 Conn.App. 456, 465 (2003).
"Because [the Appellate Court] construe[s] §§ 52-57(a) and 52-63(b) to permit constructive service on the commissioner where reasonable efforts to make personal or abode service have failed, [the court] reject[s] the Moses holding insofar as it limits use of the provisions of § 52-63(b) to situations where (1) the officer [is] unable to obtain sufficient access into the structure to make proper service, (2) the defendant no longer reside[s] at the address or [makes it his] abode, or (3) no such address exists[s]." (Emphasis added; internal quotation marks omitted.) Hibner v. Bruening, supra, 78 Conn.App. 463-64.
The marshal's return of process also fulfills the requirements of § 52-63(d) by virtue of the marshal's certification, wherein he states that he made diligent search throughout his precincts for Bluestein but could not find him at the address on file at the office of the Commissioner of Motor Vehicles.
For the foregoing reasons, the court finds that service was made in accordance with § 52-63, and therefore, the defendant's motion to dismiss is denied.
By the Court,
Doherty, Judge