Nathaniel Senderoff v. Talmadge Health Care (2010)

MEMORANDUM OF DECISION

The plaintiff, Nathaniel Senderoff, filed a complaint against the defendant, Talmadge Health Care, on September 13, 2010.   The gravamen of the complaint is that an improperly maintained sidewalk, located on a parcel owned and operated by the defendant, caused the plaintiff to trip and fall headfirst into a flagpole.   The marshal's return states that the defendant was served on May 17, 2010.   The summons and complaint indicate a return date of June 22, 2010.   However, due to what the plaintiff describes as an “inter-office error,” service of process was not returned to this court until September 13, 2010.

The plaintiff filed a motion for permission to amend the return date on September 14, 2010.   On September 22, 2010, the defendant filed an objection to the plaintiff's motion and its own motion to dismiss for lack of jurisdiction, insufficiency of process and insufficiency of service of process.   On September 29, 2010, the plaintiff filed an objection on the motion to dismiss.   On October 6, 2010, the defendant submitted a reply.   Oral argument on these motions was heard at short calendar on October 12, 2010.

“A motion to dismiss is the appropriate vehicle for challenging the jurisdiction of the court․  The grounds which may be asserted in this motion are:  ․ lack of jurisdiction over the person ․ insufficiency of process [and] insufficiency of service of process.”  (Internal citations omitted.)   Zizka v. Water Pollution Control Authority, 195 Conn. 682, 687, 490 A.2d 509 (1985).

“[J]urisdiction over the person, jurisdiction over the subject-matter, and jurisdiction to render the particular judgment are three separate elements of the jurisdiction of a court ․ 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.”  Bridgeport v. Debek, 210 Conn. 175, 179-80, 554 A.2d 728 (1989).

The defendant argues that § 52-72 does not allow amendment of a return date beyond the two-month time frame set forth in § 52-48(b).  The plaintiff contends that § 52-72 “applies even in the face of ․ [§ ]52-48(b).”  General Statutes § 52-46a states in relevant part:  “Process in civil actions returnable to the Superior Court ․ [shall be returned to] the clerk of such court at least six days before the return day.”  “[T]he requirement of § 52-46a ․ is mandatory and failure to comply with its requirements renders the proceeding voidable, rather than void, and subject to abatement.”   Coppola v. Coppola, 243 Conn. 657, 661-62, 707 A.2d 281 (1998).   A separate statutory provision requires that:  “[a]ll process shall be made returnable not later than two months after the date.”  General Statutes § 52-48(b).  Lastly, § 52-72(a) provides:  “Any court shall allow a proper amendment to civil process which has been made returnable to the wrong return day or is for any other reason defective, upon payment of costs taxable upon sustaining a plea in abatement.”

Both parties rely heavily on Coppola v. Coppola, supra, 243 Conn. 657.   The relevant dates in that case were summarized succinctly by our Supreme Court:  “[T]he writ of summons and complaint were dated June 25, 1995, with a return day of August 15, 1995.   The defendant was served on June 28, 1995 ․ The plaintiff returned the process to the Superior Court on August 15, 1995.”   Id., 660.   In that case, the plaintiff moved to amend the return date from August 15, 1995 to August 22, 1995 and the defendant moved to dismiss citing § 52-46a.   The Supreme Court agreed with the plaintiff but cautioned:  “Allowing an amendment of the return date under the circumstances of the present case does not render § 52-46a meaningless.   A return date may be amended but it still must comply with the time limitations set forth in § 52-48(b) ․ Section 52-48(b), therefore, with its two month limit, circumscribes the extent to which a return date may be amended.

Subsequent Superior Court cases have hewn closely to this “qualified” holding in Coppola.   See Szeligowski v. Lowe's Company, Inc., Superior Court, judicial district of New Haven, Docket No. CV 06 5004607 (January 23, 2007, Holden, J.) (42 Conn. L. Rptr. 714) (“although courts should liberally allow the amendment of the return date, the return date still must fall within the two-month requirement of § 52-48(b)”);  Batura v. Turk, Superior Court, judicial district of Fairfield, Docket No. CV 02 400165 (September 18, 2003, Rush, J.) (35 Conn. L. Rptr. 509) (“[b]ecause the plaintiff process dated October 29, 2002, and was served on November 13, 2002, she did not return the process to the court until February 6, 2003, it is not possible for her to amend the return date to comply with § 52-48 and dismissal of the action is warranted”);  Brague v. Nightingale, Superior Court, judicial district of Litchfield, Docket No. CV 00 0087593 (October 11, 2002, DiPentima, J.) (“[u]nder the law set forth in [Coppola ], the remedial statute, General Statute § 52-72, cannot save an action returned outside the time limitations set forth in General Statutes § 52-48(b)”).

In the present case, the earliest return date which would allow compliance with § 52-46a falls well beyond the two-month limit set forth in § 52-48.   Consequently, the remedial provisions of § 52-72 are unavailable to the plaintiff.   For these reasons, the plaintiff's motion for permission to amend the return date is denied and the defendant's motion to dismiss is granted.

Howard F. Zoarski

Judge Trial Referee

Zoarski, Howard F., J.T.R.