Ramesh Patel v. City of New Haven (2010)

CONSOLIDATED MEMORANDUM OF DECISION RE MOTIONS TO DISMISS (No. 102 in PATEL & No. 104 in SANTINO, BYKOWSKI & FRIES)

The motions to dismiss now before the court have been filed in four separate tax appeals, consolidated for purposes of hearing the motions in question.   In each case, the defendant City of New Haven (“City”) claims that the tax appeals have been untimely commenced.

Conn. Gen.Stat. § 12-117a requires appeals from municipal boards of tax review or boards of assessment appeals to be commenced “within two months from the date of the mailing of notice of such action.”   The Appellate Court has held that, under § 12-117a, “[T]he appeal period commences with the date that notice of the board's decision is issued to the appealing party.”  Mary Catherine Development Co. v. Town of Glastonbury, 42 Conn.App. 318, 320, 679 A.2d 52 (1996).

An evidentiary hearing was held on August 23, 2010.   Following posttrial briefing, the motions were argued on September 7, 2010.   For the reasons briefly set forth below, the motions to dismiss must be denied.

The evidence establishes that all of the notices of the actions of the City's Board of Assessment Appeals (“Board”) in these cases are dated May 25, 2007.   The cases were commenced by service of process on the following dates:  July 31, 2007 (Bykowski & Fries );  August 2, 2007 (Santino );  and September 4, 2007 (Patel ).   Each of these dates was obviously more than two months from the date of the notices.   The question in each case, however, is not the date of the notice, but the date of the issuance of the notice.

The evidence establishes that, following the Board's decisions on May 25, 2007, the Board's secretary, Sarah McIver, promptly placed notices of the decisions in envelopes and, on the next business day, sent them to a municipal mailroom used by the Board.   May 25, 2007 was the Friday preceding the Memorial Day weekend.   The next business day was Tuesday, May 29, 2007.   The notices, consequently, arrived in the municipal mailroom on May 29, 2007.   The evidence as to when (and, in Patel, whether) the notices were subsequently deposited in the United States mail is nonexistent.   McIver had no control over the actual mailing of the notices in question and had no idea when, or even if, they were mailed.   No evidence concerning the usual custom of the mailroom has been submitted.

The evidence establishes that notice of the Board's decision in Bykowski, Santino, and Fries was eventually received by counsel for those appellants.   Notice of the Board's decision in Patel was never received until it was discovered during the course of the appeal to this court.

Circumstantial evidence ¹ establishes that the postmark of the notice Fries was May 31, 2007.   Service of process in Fries was therefore timely.

No reliable evidence has been submitted concerning the date of the postmarks in Bykowski, Santino, and Patel.   The City has filed the motions to dismiss now before the court, and it is the City's responsibility, as proponent of the motions, to sustain its burden of proof.   In the absence of reliable evidence as to the date the notices in question were issued, the City simply has not sustained its burden of proof.

Our Supreme Court has explained:

That a letter was duly deposited in a mail box may be proved either by direct or circumstantial evidence.   It may be proved by the testimony of the person who deposited it or by proof of facts from which it may be reasonably inferred that it was duly deposited ․ Few businessmen personally deposit their mail in a mail box.   Most can testify only that they directed employees to do it and the employees are often able to testify only as to their usual custom in mailing letters for their employers.

Kerin v. Udolf, 165 Conn. 264, 268, 334 A.2d 434 (1973).   In the absence of direct testimony, mailing can be established by evidence concerning two factors:  (1) the delivery of mail to employees, and (2) the employees' “usual custom in mailing letters for their employees.”

In this case, however, while evidence has been submitted concerning the first Kerin factor, no evidence has been submitted concerning the second factor.²  In the absence of evidence of the “usual custom in mailing letters,” no presumption arises that the mail was mailed,³ much less mailed on any particular date.⁴  See Leasing Associates, Inc. v. Slaughter & Son, Inc., 450 F.2d 174, 179 (8th Cir.1971);  William Gardam & Son v. Batterson, 91 N.E. 371, 372-73 (N.Y.1910).   Under these circumstances, the City has not met its burden of proof.

The motions to dismiss are consequently denied.

Jon C. Blue

Judge of the Superior Court

FOOTNOTES

FN1. Service of process in Fries occurred on July 31, 2007.   Fries' attorney before the board (not his attorney in this court) credibly testified that he received notice of the board's decision on June 1, 2007.   Although he did not save the envelope with its postmark, he determined at the time that service of process on July 31, 2007 would be no later than two months after the date of the postmark.   The postmark must therefore have been May 31, 2007.   No evidence submitted to the court contradicts this analysis..  FN1. Service of process in Fries occurred on July 31, 2007.   Fries' attorney before the board (not his attorney in this court) credibly testified that he received notice of the board's decision on June 1, 2007.   Although he did not save the envelope with its postmark, he determined at the time that service of process on July 31, 2007 would be no later than two months after the date of the postmark.   The postmark must therefore have been May 31, 2007.   No evidence submitted to the court contradicts this analysis.

FN2. This absence of evidence concerning the second Kerin factor distinguishes this case from Royce v. Freedom of Information Commission, 177 Conn. 584, 418 A.2d 939 (1979).   The Royce court pronounced itself “satisfied that the trial court correctly assumed that the date of mailing of the notice of the final decision” of the Freedom of Information Commission (“FOIC”) was the same date as the date of the final decision itself.  Id., at 586.   The opinion of the Court does not state the evidentiary basis for this pronouncement.   FOIC's brief in Royce explains, however, that during the hearing before the trial court, “it offered Commission records, kept in the normal course of business, that would substantiate that its notice of final decision was mailed on the state set forth thereon.”   Brief of the Freedom of Information Commission 8 n.*, A-694 Conn. S.Ct. Records and Briefs (February Term 1979).   No such evidence has been offered in the present case..  FN2. This absence of evidence concerning the second Kerin factor distinguishes this case from Royce v. Freedom of Information Commission, 177 Conn. 584, 418 A.2d 939 (1979).   The Royce court pronounced itself “satisfied that the trial court correctly assumed that the date of mailing of the notice of the final decision” of the Freedom of Information Commission (“FOIC”) was the same date as the date of the final decision itself.  Id., at 586.   The opinion of the Court does not state the evidentiary basis for this pronouncement.   FOIC's brief in Royce explains, however, that during the hearing before the trial court, “it offered Commission records, kept in the normal course of business, that would substantiate that its notice of final decision was mailed on the state set forth thereon.”   Brief of the Freedom of Information Commission 8 n.*, A-694 Conn. S.Ct. Records and Briefs (February Term 1979).   No such evidence has been offered in the present case.

FN3. As mentioned, notice in Patel was never received.   Under the circumstances of this case, there is no reliable evidence that it was mailed in the first place..  FN3. As mentioned, notice in Patel was never received.   Under the circumstances of this case, there is no reliable evidence that it was mailed in the first place.

FN4. While the evidence establishes that the notices in Bykowski and Santino were eventually received-and therefore that they must have been mailed-there is no reliable evidence as to the date on which they were mailed..  FN4. While the evidence establishes that the notices in Bykowski and Santino were eventually received-and therefore that they must have been mailed-there is no reliable evidence as to the date on which they were mailed.

Blue, Jon C., J.