Opinion
CV156029842
11-25-2015
Richard Megos v. Karin Ranta
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE DEFENDANT'S MOTION TO DISMISS, #108
Cynthia K. Swienton, J.
The defendant, Karin Ranta, has moved to dismiss the plaintiff's complaint dated June 29, 2015, on the grounds that the matter is barred by the statute of limitations and cannot be saved by the accidental failure of suit statute.
I
PROCEDURAL HISTORY
This is the third attempt to file an action by the plaintiff, Richard Megos, in connection with a motor vehicle accident that occurred on October 13, 2012, in Newington, Connecticut. In the June 29, 2015, complaint in this action, the plaintiff, Richard Megos, alleges that on October 13, 2012, he was operating his motorcycle when he was struck by a vehicle operated by the defendant, an out-of-state resident.
In his first attempt, the plaintiff filed an application for prejudgment remedy on March 5, 2013, in Docket No. CV 13 5015771-S (" PJR"). In that proceeding, the defendant was served with the application for PJR and supporting pleadings by certified mail at her then address of 120 Central Park South, Apt. 4C, New York, New York. She did not contest jurisdiction. An evidentiary hearing was conducted, and the court granted the plaintiff an attachment in the amount of $2,000,000. (Gleeson, J.) However, the plaintiff failed to serve the writ, summons and complaint and return the same to the court within thirty days, and the matter was dismissed pursuant to General Statutes § 52-278j, on June 10, 2014. (Abrams, J.).
An action was filed on October 12, 2014--one day prior to the statute of limitations running. The return of service dated October 21, 2014, indicated that the state marshal served the defendant by leaving a true and attested copy of the writ, summons, and complaint at the commissioner of motor vehicles for the state of Connecticut, as well as mailing a copy of the same by certified mail, return receipt requested, to the defendant at 120 Central Park South, Apt. 4C, New York, New York. See, General Statutes § 52-62. On December 16, 2014, the defendant filed a motion to dismiss the action, arguing that the court did not have personal jurisdiction over her because she was not served properly pursuant to General Statutes § 52-62, which governs service of process upon nonresidents in motor vehicle accidents, because she was not served at her " last known address." On June 23, 2015, the court dismissed the action because service of process was not in compliance with General Statutes § 52-62, and found that the court lacked personal jurisdiction over the defendant. (Swienton, J.)
There is no dispute that the suit which was attempted with the filing of an application of a prejudgment remedy was never commenced. Thus, the action filed on October 12, 2014, is the first action.
General Statutes § 52-62(c) establishes the procedure for service of process in a civil action against a nonresident. It provides that " . . . a nonresident shall be served by the officer to whom the process is directed upon the Commissioner of Motor Vehicles by leaving with or at the office of the commissioner, at least twelve days before the return day of the process, a true and attested copy thereof and by sending to the defendant . . . by registered or certified mail, postage prepaid, a like true and attested copy, with an endorsement thereof on the service upon the commissioner, addressed to the defendant . . . at his last-known address." (Emphasis added.)
The defendant filed an affidavit with her motion to dismiss in which she stated that on October 21, 2014, " [s]he did not reside at 120 Central Park South, Apt. 4C, New York, New York 10019 and had not lived at that address for more than one year. [She] was not served with a copy of the Writ, Summons and Complaint and [had] not received a copy of the same."
On June 29, 2015, within one year of the dismissal of the prior action, the plaintiff filed the present action alleging the same facts as alleged in the previous complaint, adding that " [o]n or about October 10, 2014, the plaintiff filed suit against the defendant asserting the [same] allegations and claim for damages. On June 23, 2015, this action was dismissed as a matter of form for insufficient service of process. The present action is brought within one year of such dismissal pursuant to Connecticut General Statutes Sections (sic) 52-592." (Complaint, PP11-13.)
The defendant now moves to dismiss the June 29, 2015, complaint on the ground that the October 2014, action was never " commenced, " and it cannot be saved pursuant to the General Statutes § 52-592--the accidental failure of suit statute. Therefore, the court lacks personal jurisdiction over the defendant. The plaintiff filed an objection to the motion to dismiss, arguing that the prior action was " commenced" and the accidental failure of suit statute applies.
The plaintiff correctly points out in his brief that a motion to dismiss is not the proper procedural instrument with which to challenge the application of § 52-592, but rather the proper challenge is by way of a properly pleaded special defense. LaBow v. LaBow, 85 Conn.App. 746, 750, 858 A.2d 882 (2004), cert. denied, 273 Conn. 906, 868 A.2d 747 (2005). If the use of a motion to dismiss is not challenged, it is considered an accepted procedural vehicle to attack the savings statute. See, Capers v. Lee, 239 Conn. 265, 269-79 n.9, 684 A.2d. 696 (1996). Here the plaintiff consents to the court determining the issue via the defendant's motion to dismiss " so that the plaintiff's claims can be fully litigated and the plaintiff's day in court is not further delayed." (Plaintiff's objection to motion to dismiss.)
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 . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Beecher v. Mohegan Tribe of Indians of Connecticut, 282 Conn. 130, 134, 918 A.2d 880 (2007). In deciding a " jurisdictional question raised by a pretrial motion to dismiss, [the Court] 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." Cox v. Aiken, 278 Conn. 204, 211, 897 A.2d 71 (2006).
As stated in n.2 above, the motion to dismiss is not the proper procedural vehicle. But in light of no objection to the use of said motion by the plaintiff, the court will proceed under the motion to dismiss.
The defendant raises in her motion to dismiss that this matter must be dismissed because it was improperly instituted pursuant to § 52-592. Section 52-592(a) provides in relevant 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 for any matter of form . . . the plaintiff . . . may commence a new action, except as provided in subsection (b) of this section, for the same cause at any time within one year after the determination of the original action or after the reversal of the judgment." The Supreme Court has " consistently held that our accidental failure of suit statute, General Statutes § 52-592, is remedial and is to be liberally interpreted." (Internal quotation marks omitted.) Isaac v. Mount Sinai Hospital, 210 Conn. 721, 728, 557 A.2d 116 (1989). " The [saving] statute is designed to insure to the diligent suitor the right to a hearing in court until he reaches a judgment on the merits." Id., 733.
The Supreme Court has noted, however, that " this policy is not without limits. If it were, there would be no statute of limitations. Even the saving statute does not guarantee that all plaintiffs have the opportunity to have their cases decided on the merits. It merely allows them a limited opportunity to correct certain defects in their actions within a certain period of time . . . [T]he legislature has provided only a limited mechanism by which plaintiffs may 'save' deficient actions." Peabody N.E., Inc. v. Dept. of Transportation, 250 Conn. 105, 127-28, 735 A.2d 782 (1999). Section 52-592, therefore, should not be applied where it " would defeat the basic purpose of the public policy that is inherent in statutes of limitation, i.e., to promote finality in the litigation process." (Internal quotation marks omitted.) Rosario v. Hasak, 50 Conn.App. 632, 638, 718 A.2d 505 (1998). " Although § 52-592 is a remedial statute and must be construed liberally . . . it should not be construed so liberally as to render statutes of limitation virtually meaningless." (Internal quotation marks omitted.) Id. As a result, " [t]he [plaintiff] must satisfy all of the criteria in § 52-592 in order to prevail . . ." (Internal quotation marks omitted.) Davis v. Family Dollar Store, 78 Conn.App. 235, 242, 826 A.2d 262 (2003), appeal dismissed, 271 Conn. 655, 859 A.2d 25 (2004). In the present action, in order to prevail under § 52-592(a), the original action must have been timely commenced, and the original action must have been dismissed, prior to being tried on the merits, for one of the enumerated reasons listed in the savings statute. See Capers v. Lee, 239 Conn. 265, 271, 684 A.2d 696 (1996); Davis v. Family Dollar Store, supra, 78 Conn.App. at 242.
The defendant claims that the original suit was never " commenced, " and therefore this action cannot be saved pursuant to General Statutes § 52-592. She argues that because she is a nonresident, the proper method of service is set forth in General Statutes § 52-62(c) and requires service upon the commissioner of motor vehicles and the individual defendant at his or her last known address. In his return of service October 21, 2014, attached to the complaint, the state marshal states that he served the defendant by leaving a true and attested copy of the writ, summons, and complaint at the Office of Melody Currey, commissioner of motor vehicles for the state of Connecticut, as well as mailing a copy of the writ, summons and complaint by certified mail, return receipt requested, to the defendant at 120 Central Park South, Apt. 4C, New York, New York. The defendant did not reside at the New York address, and in her affidavit submitted in support of her motion to dismiss in the original action, she averred that she had not received a copy of the complaint. This court found that because she was not served at her last known address, service of process was not in compliance with General Statutes § 52-62 and dismissed the action. Therefore, the defendant contends that the action was never commenced within the statute of limitations which is required in order to proceed under § 52-592.
The issue of the meaning of commencement of an action for purposes of the savings statute has been addressed in two Supreme Court decisions. In Rocco v. Garrison, 268 Conn. 541, 848 A.2d 352 (2004), the defendant had argued that commencement of an action occurs when the defendant is served, and that an action is not commenced if the defendant was not properly served. The court addressed the meaning of the phrase " commenced within the time limited by law" contained in § 52-592. The plaintiffs had initiated a personal injury action against a nonresident in federal district court. Pursuant to rule 4(d)(2) of the Federal Rules of Civil Procedure, the plaintiffs sent, by certified mail, copies of the summons and complaint to the defendant. Although process was received by the defendant four days prior to the running of the relevant statute of limitations, the defendant did not sign and return the waiver of service form, and the statute of limitations expired before the plaintiffs could effectuate formal service. After the action was returned to court, the defendant moved for summary judgment, arguing that the plaintiffs failed to bring suit within the statutory time period.
Following the district court's entry of summary judgment against the plaintiffs, the plaintiffs commenced a second action in Superior Court, pursuant to § 52-592. The trial court granted the defendant's motion for summary judgment on the ground that the plaintiffs' federal action was not " commenced within the time limited by law, " within the meaning of § 52-592. The plaintiffs appealed, arguing that the action was commenced when the defendant received notice of the action upon " delivery of the summons and complaint."
" If the savings statute requires effective commencement of the original action, and commencement requires valid service of process . . . then any failure of service of process would require us to conclude that no action had been commenced and that the statute does not apply. This would render superfluous one of the principal purposes of the savings statute, namely, to save those actions that have failed due to insufficient service of process. Moreover, the language of § 52-592 distinguishes between the commencement of an action and insufficient service of process by providing that the action may fail following its commencement because of insufficient service. To accept the view that improper or insufficient service defeats such an action would undermine the statute's clear and unambiguous meaning and preclude the filing of a second action. We therefore conclude that the term 'commenced, ' as used in § 52-592 to describe an initial action that 'has failed . . . to be tried on its merits because of insufficient service'; General Statutes § 52-592(a); cannot be construed to mean good, complete and sufficient service of process . . ." Id., 550-51.
" [O]ur decision today does not offend the general purpose of statutes of limitations because we agree with the plaintiffs that the original action was 'commenced' within the meaning of the savings statute when the defendant received effective notice of that action within the time period prescribed by § 52-584. In the original action, service was attempted pursuant to rule 4(d)(2), but was insufficient because of the defendant's failure to return the waiver of formal service in accordance with her 'duty' to avoid the unnecessary costs of the service of a summons." (Emphasis added.) Id., 551. " Although the original action was not commenced in a timely manner under the applicable statute of limitations due to insufficient service of process, it nevertheless was commenced for purposes of the savings statute." Id., 552-53.
In Dorry v. Garden, 313 Conn. 516, 98 A.3d 55, (2014), the Supreme Court concluded that an action commenced when the defendants received effective notice of the action. The trial court had dismissed the first suit because of improper service in that the defendants had not been served in hand, despite the marshal's representation to that effect, but copies of the writ, summons and complaint had just been left by the marshal at various professional or hospital offices. The evidence indicated, however, that two of the defendants, Sanderson and Danica-Aaboe, had received copies of the writ, summons, and complaint before the limitation period had expired, and two other defendants had received effective notice of the action within the time limited by law because the plaintiff had delivered process to the marshal within the limitation the statutory (52-593a) thirty-day period for service and the defendants had received them.
As the fifth defendant, he had received a phone call notifying him that a writ, summons and complaint were delivered for him. He was unable to testify as to the exact date he received the call, so the court determined that an evidentiary hearing was necessary to establish jurisdictional facts before the motion could be decided.
The trial court also dismissed this second suit and held that General Statutes § 52-592 did not apply to save the plaintiff's action because the first action was not " commenced" for purposes of the statute because of the improper service. The Supreme Court reversed, and concluded that its decision in Rocco, applies to save the plaintiff's claims against the defendant because they had actual notice within the statute of limitations. The Court did not define what is " effective notice, " but found that notice was effective as to the defendant Sanderson because service had been made by leaving the papers with his office manager at his business office, and his office manager left them on his desk, and he had seen them. As to the defendant Danica-Aaboe, the marshal had left the papers with an employee at her place of business and the defendant indicated she had received them. As to the defendant Carroll, the marshal had left a copy of the writ, summons and complaint at her business address and she had received them. As to defendant Garden, the marshal had left a copy of the writ, summons, and complaint at his business address with an employee of another entity and he had received them. The Court concluded that Rocco applies to save the plaintiff's claims against these defendants because each defendant had received a copy of the writ, summons, and complaint within the applicable statute of limitations, or within the thirty days for service by the marshal.
As authority for the plaintiff's position in this case, he relies on three Superior Court cases, which conclude that service upon the commissioner of motor vehicles as required by General Statutes § 52-62 is sufficient to find that the original action was " commenced" for purposes of the accidental failure of suit statute. See, Flynn v. Citarella, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 98 0262918 (November 30, 1998) ; Minkowski v. Mirsky, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 02 0389510 (June 25, 2003) ; Lane v. Esposito, 50 Conn.Supp. 253, 918 A.2d 313 (2007) . In all three cases, in the initial action, service was made upon the commissioner of motor vehicles, pursuant to General Statutes § 52-62, however, service was never effectuated on the non-residents. The trial courts reached their conclusions, by relying on § 52-62(a) which states that out-of-state residents have " deemed to have appointed the Commissioner of Motor Vehicles as [their] attorney to accept service of process, " as well as serving the process upon the commission of motor vehicles " shall have the same validity as if served upon the nonresident personally." General Statutes § 52-62(a).
In Lane v. Esposito, a copy of the writ, summons and complaint were sent by certified mail to the defendant's address on file with the commissioner of motor vehicles, however, the defendant, unbeknownst to the plaintiffs, had died. The court relied on the same reasoning as Flynn v. Citarella and Minkowskz v. Mirsky, in that as long as service was made on the commissioner of motor vehicles, it was sufficient to find the action was commenced within the time limited by law to satisfy General Statutes § 52-592.
This reasoning would, of course, make the requirements of § 52-62(c) meaningless.
The court rejects the plaintiff's reasoning and authority. First, all three of these Superior Court decisions were rendered before Dorry, and two of them were rendered before Rocco so their persuasive authority is undermined. The decisions in Rocco and particularly Dorry make clear that in each instance the defendant had received actual notice before the expiration of the statute of limitations, and in each instance, the Supreme Court found there was effective notice within the time limited by law. In Rocco, the court concluded that the term " commenced, " as used in § 52-592 is not to be construed as meaning good, complete and sufficient service of process. Id., 551. However, the Supreme Court emphasized that the summons and complaint had been delivered to the defendant's home prior to the expiration of the statute of limitations. Id. In Dorry, the Supreme Court found that the action commenced when the defendant received effective notice of the action within the time prescribed. Although the Supreme Court did not define what is " effective notice, " the court found that notice was effective as to the defendants because they either had seen them, or had received them, even though " service" was not made in accordance with the appropriate statutory requirements. Therefore, because the defendants had actual notice within the statute of limitations the court found they had effective notice
In both Rocco, and Dorry, as to those defendants the Supreme Court found who had effective notice of the suit, each had received a copy of the writ, summons and complaint within the applicable statute of limitations. " Simply hearing from a third party that a suit has been brought against you cannot be effective notice to a defendant. In fact, the Dorry court uses the term 'actual notice' interchangeably with 'effective notice.' " Berlin v. Israel, Superior Court, judicial district of Hartford, Docket No. CV 14 6055525 (June 2, 2015) .
In this case, it is undisputed that the defendant did not receive actual notice of the plaintiff's action before the statute of limitations had expired, which was October 13, 2014. She had not seen the complaint within the statutory period unlike the defendants in both Rocco and Dorry as to whom the court found " effective notice." The defendant stated in her affidavit filed with the initial motion to dismiss that she had not resided at the address where the writ, summon and complaint was mailed, and had not lived at that address for over a year. Moreover, the certified envelope which had been mailed to the 120 Central Park South address was returned to the plaintiff, clearly stamped by the post office with the defendant's current address of 15 Cuttermill Road, #104, Great Neck, N.Y. 11021-252, and stating that the forwarding time had expired.
III
CONCLUSION
The court concludes that in order for the action to have " commenced, " as required by § 52-592, the defendant must receive effective notice of the suit through the attempted service of the writ, summon and complaint by the marshal within the time limit prescribed by law. An action has not been commenced against a defendant, where the defendant had not received or seen a copy of the complaint. Due process requires that a defendant have effective notice. In this case, there is no evidence that the defendant was ever served or ever saw a copy of the complaint before the statute of limitations expired.
Accordingly, the defendant's motion to dismiss is granted.
The court is mindful that this leaves the plaintiff with no remedy directly against the defendant. However, the rules of practice implicate due process, and the defendant has the constitutional right to be served as those rules provide.