Eastern Water Solutions, Inc. fka Eastern Water Development Co., Inc. v. Rashad Gandhi dba G.C. Construction (2011)

MEMORANDUM OF DECISION RE (# 111) DEFENDANT'S MOTION TO REARGUE

This action was commenced by the service of a writ and complaint dated April 27, 2010, which was served upon the defendant on May 11, 2010.   The return date was May 25, 2010.   The writ was returned to the Clerk of the Waterbury J.D. on May 25, 2010.

On July 15, 2010, the plaintiff filed a motion for default for failure to appear against the defendant.   On July 26, 2010, the Court (Cronan, J.), found, sua sponte, that the proper venue for the case was the Ansonia/Milford J.D. and ordered the case transferred to that Court without ruling on the motion for default.

On August 23, 2010, the plaintiff filed another motion for default for failure to appear.   On September 10, 2010, that motion was denied by the Clerk for the reason that the defendant had filed an appearance on September 2, 2010.

On September 3, 2010, the defendant filed a motion to dismiss for the reason that the plaintiff had failed to return the writ to Court at least six days before the return date as required by § 52–46a, C.G.S., and that no subsequent action had been taken by the plaintiff to correct that defect.

On September 9, 2010, the plaintiff filed a request to amend its complaint The amendment was a change in the return date from May 25, 2010 to October 19, 2010.   The defendant did not file an objection to the request to amend.

Also on September 9, 2010, the plaintiff filed an objection to the defendant's motion to dismiss.   The defendant's motion to dismiss appeared on the Short Calendar as a non-arguable matter to be decided on the papers.

On March 15, 2011, this Court (Doherty, J.) entered an order denying the motion to dismiss citing as authority Coppola v. Coppola, 243 Conn. 657 (1998).

On March 24, 2011, the defendant filed a motion for reargument.   On March 31, 2011, the plaintiff filed an objection to the motion for reargument.   Counsel appeared and were heard on the motion on April 4, 2011.

Having considered the arguments of counsel, the statutes and the applicable case law, the Court makes the following findings.

The plaintiff argues that the defect in the pleading can be remedied by the provisions of Section 52–72(a), C.G.S. which provides, in relevant part, that, “Any court shall allow a proper amendment to civil process which has been made returnable to the wrong day or is for any other reason defective ․”

As part of his reargument, the defendant concedes that both Sec. 52–72(a) and the holding in Coppola, supra, permit the amendment of a return day to correct a late return to Court, but he notes that the Court in Coppola went on to hold that a return day may be amended but it must still comply with C.G.S. § 52–48(b).  That statute provides, in relevant part, that “All process shall be made returnable not later than two months after the date of process ․” The defendant notes that the date of process in this case was April 27, 2010—more than two months before the filing of the plaintiff's request to amend.

In the matter of Olympia Mortgage v. Klein, 61 Conn.App. 305 (2001), the Appellate Court ruled that “Although § 52–48 sets forth a two-month time limitation for return of process, the legislature, by enacting § 52–72, clearly provided parties an avenue to correct a procedural error concerning such process.”  Olympia, supra, p. 309 After citing Coppola and several related cases, that Court went on to note, “None of the above mentioned cases specifically restricted the right to amend the return date to cases in which the original return date was within the required two-month time limitation.”   Id. Citing Concept Associates, Ltd. v. Board of Tax Review, 229 Conn. 618 (1994), the Court went on to note, “Our Supreme Court has held that a remedial statute such as § 52–72 should be construed liberally so as not to preclude jurisdiction merely because of a defective return date.”  Id., p. 623.

It should be further noted that in the instant case the defendant was served properly, had notice of the pendency of the action and waited for approximately four months, until September 7, 2010, to file an appearance and a motion to dismiss.   To now argue that the plaintiff's request to amend is untimely is somewhat disingenuous.   The defect complained of by the defendant rendered the case voidable not void.   Had the defendant never appeared and raised the defect regarding the return date, the Court would have had the requisite jurisdiction to enter judgment for the plaintiff.   The defendant should not be rewarded for having delayed his appearance and motion to dismiss until more than two months after the date of process.

For the foregoing reasons, the defendant's motion to reargue having been granted, the relief sought in the form of a dismissal of the plaintiff's case is hereby denied.

BY THE COURT

JOSEPH W. DOHERTY, JUDGE

Doherty, Joseph W., J.