Wendy McClune v. James McClune (2011)

MEMORANDUM OF DECISION RE MOTION TO DISMISS SHORT CALENDAR OF JULY 25, 2011

The defendant in the above entitled action has moved to dismiss the pending action based on defective service of process.   The matter was argued before the Court in which the defendant claims that the service by certified mail, return receipt was defective in that the named defendant James McClune did not receive service.   The attachments and postal confirmation indicate that the Motion To Show Cause and attachments were mailed on June 16, 2011 from the Torrington Post Office and arrived on June 20, 2011 at the Millerton, New York, Post Office and were received by a third party whose first name appears to be “Laura” on June 28, 2011 as stamped on the return certified mail receipt.   The defendant argues that service was untimely in that under the order to show cause signed by the Chief Clerk, service of process was to be completed on or before June 27, 2011 in order for timely return to Court on July 11, 2011.

Practice Book Section 10–13 involving methods of service indicates that service by certified mail in this case is completed upon mailing, not necessarily on date of receipt by the addressee.   The supplemental return and postal confirmation all indicate that the actual mailing of the subject documents by State Marshal Carey and State Marshal Fienemann all occurred on June 16, 2011.   Therefore, the timeliness of the plaintiff's service of process is sustained.

However, as a further part of the motion to dismiss the defendant questions the identity of the party who actually picked up and signed for the certified mail on June 28, 2011 in Millerton, New York. The return green card does not have a restricted delivery indication nor does it have the appropriate box checked as to whether the person who signed for the certified mail was the addressee, that is James McClune, or an agent of the addressee.   Therefore, the service of process upon the named party James McClune cannot be verified by signature of the unidentified signatory on the certified mail return receipt whose first name appears to be “Laura R.” The Court cannot at this point assume that this person was an agent for the defendant James McClune and therefore on that basis the Motion To Dismiss is granted.

BY THE COURT,

Roche, J.

Roche, Vincent E., J.