Opinion
FSTCV176031245S
01-23-2018
Maria ROMERO v. CITY OF STAMFORD et al.
UNPUBLISHED OPINION
OPINION
Jacobs, J.
BACKGROUND
The plaintiff alleges to have sustained injuries when she fell on an icy sidewalk in Stamford on January 20, 2015. The plaintiff’s January 12, 2017 four-count complaint against the city of Stamford (First Count) and the owners of the properties abutting the sidewalk (Second, Third and Fourth Counts) was returned to court on February 21, 2017. On August 2, 2017, the defendant city of Stamford filed the current motion to dismiss the First Count, on the ground that the plaintiff failed to provide timely notice of the incident and claimed injuries to the defendant within the statutory period of ninety days as required by Connecticut General Statutes § 13a-149. The defendant city of Stamford filed a memorandum of law in support of the motion [# 109]. On September 21, 2017, the plaintiff filed a memorandum of law in opposition to the motion [# 112]. The court heard oral argument on October 2, 2017.
DISCUSSION
Although the First Count of the complaint does not reference Connecticut General Statutes § 13a-149, the plaintiff does not dispute that § 13a-149 applies and that it provides the exclusive remedy for her injury.
" [T]he trial court does not have subject matter jurisdiction in a case controlled by § 13a-149 if the plaintiff fails to provide sufficient notice to the defendant municipality." Ortiz v. Metropolitan District, 139 Conn.App. 487 (2012), citing Ferreira v. Pringle, 255 Conn. 330 (2001). " [A]s a condition precedent to maintaining an action under § 13a-149, a plaintiff must provide a municipality with notice that meets the statutory requirements ." (Emphasis added; internal quotation marks omitted.) Salemme v. Seymour, 262 Conn. 787 (2003). " The plaintiff who fails within ninety days to provide the municipality with the statutorily required notice will be barred from any recovery." Sanzone v. Board of Police Commissioners, 219 Conn. 179 (1991).
A plaintiff with a § 13a-149 claim bears the burden of proving that it provided notice to the city and that the city actually received that notice. Rivera v. Meriden, 72 Conn.App. 766, 772, 806 A.2d 585 (2002). Dismissal is appropriate where the defendants’ affidavits state that the defendants did not receive any notices within the ninety-day period designated by § 13a-149. See, e.g., Ramirez v. Hartford, Superior Court, judicial district of Hartford, Docket No. CV-16-6065237-S (November 8, 2016, Huddleston, J.) ; Gagliardi v. Cheshire, Superior Court, judicial district of New Haven, Docket No. CV-10-6014056-S (December 21, 2012, Wilson, J.) .
" 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 counteraffidavits ... or other evidence, the trial court may dismiss the action without further proceedings." (Citation omitted.) Conboy v. State, 292 Conn. 642 (2009). While it is true that the plaintiff has the burden of proving delivery and actual receipt of the notice; see Rivera v. Meriden, supra, 72 Conn.App. 772; the defendant still has the initial responsibility to conclusively establish that jurisdiction is lacking. Conboy v. State, supra, 292 Conn. 652.
In the instant case, the January 13, 2016 notice of the plaintiff’s intent to commence a civil action and an affidavit from the city clerk of the defendant city of Stamford stating that she received the notice on January 20, 2016 were appended to the defendant’s motion to dismiss [# 109, Exhibit A]. While the affidavit is evidence that the January 13, 2016 notice was untimely, the affidavit does not state that the city clerk of the defendant city of Stamford received no other notice during the ninety-day period following January 20, 2015, the date of the incident referenced in the notice. As such, the affidavit does not conclusively establish that jurisdiction is lacking.
Plaintiff’s counsel asserts that timely notice pursuant to Connecticut General Statutes § 13a-149 may have been filed by plaintiff’s former counsel; however, plaintiff’s former counsel has been unresponsive to current counsel’s requests to provide it to current counsel. Included in the plaintiff’s memorandum of law opposing the motion to dismiss is a request that this court require plaintiff’s former counsel to produce any such timely notice. The plaintiff’s request is denied. This court has no duty on the court to intervene on behalf of a plaintiff having difficulty obtaining jurisdictional discovery. Lake Road Trust Ltd. v. ABB Powertech (Pty) Ltd., 136 Conn.App. 671 (2012), citing Standard Tallow Corp. v. Jowdy, 190 Conn. 48 (1983).
CONCLUSION
The defendant has not conclusively established that the court lacks subject matter jurisdiction over the plaintiff’s cause of action. The defendant’s motion to dismiss is denied, without prejudice.