Carlos Figueroa, Adm. v. City of Norwalk (2012)

MEMORANDUM OF DECISION

The defendant, city of Norwalk, moves to dismiss the plaintiff's action on the ground that the court lacks subject matter jurisdiction.   More particularly, the defendant claims that the plaintiff failed to serve the notice on the city clerk as required by the applicable statute and, additionally, that the notice was defective because it was not addressed or delivered to the city clerk.   For the reasons hereinafter discussed, the motion is denied.

The present action arises from a motor vehicle collision that occurred on August 9, 2009.   The plaintiff is the administrator of the estate of the decedent, Pedro Figueroa, who died from injuries sustained in the incident.   The plaintiff brought an action for personal injuries against the defendant ¹ pursuant to General Statutes § 13a–149, commonly referred to as the “municipal highway defect statute.”

In support of its motion to dismiss, the defendant filed copies of the statutory notice that the plaintiff was required to provide to the defendant.   The plaintiff served a notice under § 13a–149 on the town clerk on November 3, 2009.   The notice was served on Deborah Troy, as assistant town clerk who accepted service on behalf of Andrew S. Garfunkel, the town clerk for the defendant.   Also served with the notice was Harold F. Alvord, director of the department of public works for the defendant.   It also appears, for reasons unknown, that the plaintiff provided to the town clerk an additional copy of the notice on November 6, 2009 for filing on the land records.   As noted by the defendant in its memorandum, the copy of the notice given to the town clerk for filing on the land records was subsequently delivered to the city clerk's office on November 9, 2009.

“A motion to dismiss ․ properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court.”  (Internal quotation marks omitted.)  Bacon Construction Co. v. Dept. of Public Works, 294 Conn. 695, 706, 987 A.2d 348 (2010).  “A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction.”   (Internal quotation marks omitted.)  Wilcox v. Webster Ins., Inc., 294 Conn. 206, 213, 982 A.2d 1053 (2009).  “In general, a motion to dismiss is the proper procedural vehicle to raise a claim that the court lacks subject matter jurisdiction over the action.”  Bellman v. West Hartford, 96 Conn.App. 387, 392, 900 A.2d 82 (2006).  “[T]he plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised.”  (Internal quotation marks omitted.)  Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 430 n.12, 829 A.2d 801 (2003).  “[I]t is the burden of the party who seeks the exercise of jurisdiction in his favor ․ clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute.”   (Internal quotation marks omitted) Wilcox v. Webster Ins., Inc., supra, 213–14.  “It is well established that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged.”  (Internal quotation marks omitted.)  Id., 214.

I

The defendant makes the associated claims that the statutory notice provided by the plaintiff to it was improperly given to the town clerk as opposed to the city clerk, and was defectively addressed to the town clerk and not the city clerk.   The resolution of these claims turns on the defendant's admission in its brief that “[i]t appears that this ․ statutory notice may have eventually made its way to the city clerk's office-but only on November 9, 2009.” ²

“As a condition precedent to maintaining an action under § 13a–149, a plaintiff must provide a municipality with notice that meets the statutory requirements.”  Martin v. Plainville, 240 Conn. 105, 109, 689 A.2d 1125 (1997).  “A plaintiff who fails to comply with [the statutory] requirements cannot maintain a cause of action against a municipality.”  Id.

General Statutes § 13a–149 provides in relevant part:  “No action for any [injury caused by a defective road or bridge] shall be maintained against any town, city, corporation or borough, unless written notice of such injury and a general description of the same, and of the cause thereof and of the time and place of its occurrence, shall, within ninety days thereafter be given to a selectman or the clerk of such town, or to the clerk of such city or borough, or to the secretary or treasurer of such corporation.”

It is undisputed that the city clerk was given the notice that was originally provided to the town clerk.   The notice was received by the city clerk on November 9, 2009, which was timely under the statute.³  In view of the foregoing, the defendant's motion to dismiss for the reason that the notice was not served on the city clerk is denied.

In recognition of the procedural reality that the city clerk received timely notice of the plaintiff's claim under General Statutes § 13a–149, the defendant substantively challenges the notice by contending that “the notice is required to be addressed to and be served upon the city clerk as required by law.”   The court disagrees.

In Costello v. Norwalk, Superior Court, judicial district of Fairfield, Docket No. 268834 (April 25, 1991, Katz, J.) (6 C.S.C.R. 480) [3 Conn. L. Rptr. 509], a case involving similar facts, a plaintiff addressed § 13a–149 statutory notice to the town clerk, which was received four days later by an assistant city clerk.  Id. The court held that “[b]ecause the statute [§ 13a–149] does not prescribe the manner in which the notice of injury required therein to be given should be addressed, but provides merely to whom it should be given and the essential elements thereof, an improper address should not prove fatal so long as the notice reaches the right hands within the requisite period of time.”  Id.

Also adverse to the defendant's claim is the dictum by our Supreme Court in Brennan v. Fairfield, 255 Conn. 693, 707, 768 A.2d 433 (2001), that “[w]hen the correct party is designated in a way that may be inaccurate but which is still sufficient for identification purposes, the misdesignation is a misnomer.   Such a misnomer does not prevent the exercise of subject matter jurisdiction if the defendant was actually served and knew he or she was the intended defendant.   This is in contradistinction to the case in which the plaintiff has misconstrued the identity of the defendant and has therefore named and served the wrong party.”  Id., 5.⁴

In this case, the fact that the notice was addressed to the town clerk is a misdesignation and not a misidentification.   Moreover, the proper official, the defendant's city clerk, was given timely notice of the claim.   Therefore, the court has subject matter jurisdiction over the action and the defendant's motion to dismiss on the ground of an improperly addressed notice is denied.

II

In addition to contesting the statutory notice, the defendant seeks dismissal of the action claiming that the plaintiff served the writ of summons and complaint on an improper official, the town clerk, and not the proper official, the city clerk.   Specifically, the defendant contends that pursuant to General Statutes § 52–57(b),⁵ when commencing an action against a city, service of process must be made upon the city clerk, or one of the other city officials designated by the statute.   The defendant's claim challenges the plaintiff's service of process, which is an issue of personal jurisdiction.   Therefore, the claim has been waived under our rules of practice.

“Unless the issue of personal jurisdiction is raised by a timely motion to dismiss, any challenge to the court's personal jurisdiction over the defendant is lost.”  (Internal quotation marks omitted.)  St. Paul's Flax Hill Co-operative v. Johnson, 124 Conn.App. 728, 740, 6 A.3d 1168 (2010), cert. denied, 300 Conn. 906, 12 A.3d 1002 (2011).   The rules of practice “specifically and unambiguously [provide] that any claim of lack of jurisdiction over the person as a result of insufficiency of service of process is waived unless it is raised by a motion to dismiss filed within thirty days [after the filing of an appearance and] in the sequence required by Practice Book § 10–6 ․ Thus, thirty-one days after the filing of an appearance or the failure to adhere to the requisite sequence, a party is deemed to have submitted to the jurisdiction of the court.   Any claim of insufficiency of [service of] process is waived if not sooner raised.”  (Emphasis in original.)  Pitchell v. Hartford, 247 Conn. 422, 433, 722 A.2d 797 (1999).

In the present case, the defendant's counsel entered an appearance on September 28, 2011.   The defendant filed this motion to dismiss more than thirty days later on February 16, 2012.   The defendant waived its ability to claim that the court lacks personal jurisdiction over it due to improper service process.   The defendant's motion to dismiss on this ground is denied.

In view of the foregoing, the defendant's motion to dismiss (127.00) is denied.

TYMA, J.

FOOTNOTES

FN1. The present motion is not addressed to the other defendant, Sono Square Associate, LLC..  FN1. The present motion is not addressed to the other defendant, Sono Square Associate, LLC.

FN2. The defendant appended to its memorandum a copy of the statutory notice that bears that stamp of the town clerk receiving the notice on November 6, 2009.   Immediately behind the copy of the notice is a form that shows that the notice was received by the city clerk on November 9, 2009.   Also attached is a copy of a letter dated November 9, 2011, that the city clerk sent to the plaintiff's attorney acknowledging the claim and indicating that the matter was forwarded to the defendant's claim administrator..  FN2. The defendant appended to its memorandum a copy of the statutory notice that bears that stamp of the town clerk receiving the notice on November 6, 2009.   Immediately behind the copy of the notice is a form that shows that the notice was received by the city clerk on November 9, 2009.   Also attached is a copy of a letter dated November 9, 2011, that the city clerk sent to the plaintiff's attorney acknowledging the claim and indicating that the matter was forwarded to the defendant's claim administrator.

FN3. The defendant also asserts that although the § 13a–149 statutory notice eventually reached the city clerk's office, it did so ninety-two days after the alleged accident instead of within the mandated ninety-day limit.   Based on the exhibits that the defendant attaches to its supplemental memorandum, the defendant concedes that the notice eventually made its way to the city clerk's office on November 9, 2009.   The accident happened on August 9, 2009, giving the plaintiff ninety days, or until November 7, 2009, to comply with the notice requirement of § 13a–149.   The defendant fails to recognize, however, that November 7, 2009, was a Saturday.In Brennan v. Fairfield, 255 Conn. 693, 700, 768 A.2d 433 (2001), the court stated:  “Filing notice under § 13a–149 ․ does not involve just one party.   The designated town official must be available to receive the notice.   When municipal offices are closed on weekends, public officers are freed from the obligation of keeping open their offices or attending to their duties, just as they are freed from these obligations on official holidays ․ To conclude otherwise would mean that, if the terminal date for filing notice pursuant to § 13a–149 fell on a Saturday or Sunday, then either the town clerk's office would have to be open on those days in order to receive the notice, or the designated official would have to be otherwise available to receive the notice delivered on the ninetieth day.   We do not think that the legislature intended these consequences in order for a claimant to satisfy the notice filing requirements of § 13a–149.”  Id. The court “decline[d] to interpret § 13a–149 as shortening the legislatively prescribed time period within which the plaintiff must notify the town, when the ninetieth day falls on a day when the town clerk's office is closed, when to do so would deny the plaintiff any remedy and leave her without recourse for what may be an otherwise meritorious claim.”  Id., 702.   The court also referenced Practice Book § 7–17 in stating that “permitting filings past certain deadlines is an accepted practice in our courts.”  Id., 700.   The court agreed with the plaintiff's claim in that case that “notice that is received on the ninety-second day under a ninety day notice statute is sufficient when the municipal office that is authorized to receive the notice is closed on the ninetieth and ninety-first days, a Saturday and Sunday ․” Id., 695.That is the precise situation in the present case.   The § 13a–149 statutory notice was received in the city clerk's office no later than November 9, 2009, a Monday.   The ninety-day deadline for the plaintiff to provide notice to the defendant was on November 7, 2009, a Saturday.   Under the principles articulated in Brennan, because the city clerk's office was closed on the ninetieth and final day for the plaintiff's compliance, that deadline was extended to Monday, November 9, 2009.   Therefore, the plaintiff's notice to the city clerk's office is timely under § 13a–149..  FN3. The defendant also asserts that although the § 13a–149 statutory notice eventually reached the city clerk's office, it did so ninety-two days after the alleged accident instead of within the mandated ninety-day limit.   Based on the exhibits that the defendant attaches to its supplemental memorandum, the defendant concedes that the notice eventually made its way to the city clerk's office on November 9, 2009.   The accident happened on August 9, 2009, giving the plaintiff ninety days, or until November 7, 2009, to comply with the notice requirement of § 13a–149.   The defendant fails to recognize, however, that November 7, 2009, was a Saturday.In Brennan v. Fairfield, 255 Conn. 693, 700, 768 A.2d 433 (2001), the court stated:  “Filing notice under § 13a–149 ․ does not involve just one party.   The designated town official must be available to receive the notice.   When municipal offices are closed on weekends, public officers are freed from the obligation of keeping open their offices or attending to their duties, just as they are freed from these obligations on official holidays ․ To conclude otherwise would mean that, if the terminal date for filing notice pursuant to § 13a–149 fell on a Saturday or Sunday, then either the town clerk's office would have to be open on those days in order to receive the notice, or the designated official would have to be otherwise available to receive the notice delivered on the ninetieth day.   We do not think that the legislature intended these consequences in order for a claimant to satisfy the notice filing requirements of § 13a–149.”  Id. The court “decline[d] to interpret § 13a–149 as shortening the legislatively prescribed time period within which the plaintiff must notify the town, when the ninetieth day falls on a day when the town clerk's office is closed, when to do so would deny the plaintiff any remedy and leave her without recourse for what may be an otherwise meritorious claim.”  Id., 702.   The court also referenced Practice Book § 7–17 in stating that “permitting filings past certain deadlines is an accepted practice in our courts.”  Id., 700.   The court agreed with the plaintiff's claim in that case that “notice that is received on the ninety-second day under a ninety day notice statute is sufficient when the municipal office that is authorized to receive the notice is closed on the ninetieth and ninety-first days, a Saturday and Sunday ․” Id., 695.That is the precise situation in the present case.   The § 13a–149 statutory notice was received in the city clerk's office no later than November 9, 2009, a Monday.   The ninety-day deadline for the plaintiff to provide notice to the defendant was on November 7, 2009, a Saturday.   Under the principles articulated in Brennan, because the city clerk's office was closed on the ninetieth and final day for the plaintiff's compliance, that deadline was extended to Monday, November 9, 2009.   Therefore, the plaintiff's notice to the city clerk's office is timely under § 13a–149.

FN4. The defendant cites Brennan v. Fairfield, 58 Conn.App. 191, 753 A.2d 396 (2000), rev'd, 255 Conn. 693, 768 A.2d 433 (2001) as appellate authority in support of its motion.   This case was reversed, however, by the Connecticut Supreme Court in Brennan v. Fairfield, 255 Conn. 693, 768 A.2d 433 (2001).   The defendant states that “[i]n [Brennan ] the Appellate Court held the plaintiff's letter did not comply with the Highway Defect Statute which requires that notice of injury be given to a town selectman or a town clerk since this letter was addressed to an individual who was not the town clerk as well as to the town's department of public works.”   Our Supreme Court specifically reversed the Appellate Court on this issue, holding that “the plaintiff delivered the notice to a proper official, namely, the town clerk, pursuant to § 13a–149.   The fact that the notice was addressed to ․ an individual who was not the town clerk, was simply a misnomer that was inaccurate but was sufficient for identification purposes.   The statute does not require the plaintiff to include the name of the town clerk or selectman in her notice.   Rather, it requires that a written description of the accident, its causes, and when and where it occurred be directed to and received by a proper official.   It is not disputed that the plaintiff included all of the statutorily required information in her notice.   Furthermore, according to the affidavit ․ the town clerk's office did in fact receive the notice.”  Brennan v. Fairfield, supra, 707..  FN4. The defendant cites Brennan v. Fairfield, 58 Conn.App. 191, 753 A.2d 396 (2000), rev'd, 255 Conn. 693, 768 A.2d 433 (2001) as appellate authority in support of its motion.   This case was reversed, however, by the Connecticut Supreme Court in Brennan v. Fairfield, 255 Conn. 693, 768 A.2d 433 (2001).   The defendant states that “[i]n [Brennan ] the Appellate Court held the plaintiff's letter did not comply with the Highway Defect Statute which requires that notice of injury be given to a town selectman or a town clerk since this letter was addressed to an individual who was not the town clerk as well as to the town's department of public works.”   Our Supreme Court specifically reversed the Appellate Court on this issue, holding that “the plaintiff delivered the notice to a proper official, namely, the town clerk, pursuant to § 13a–149.   The fact that the notice was addressed to ․ an individual who was not the town clerk, was simply a misnomer that was inaccurate but was sufficient for identification purposes.   The statute does not require the plaintiff to include the name of the town clerk or selectman in her notice.   Rather, it requires that a written description of the accident, its causes, and when and where it occurred be directed to and received by a proper official.   It is not disputed that the plaintiff included all of the statutorily required information in her notice.   Furthermore, according to the affidavit ․ the town clerk's office did in fact receive the notice.”  Brennan v. Fairfield, supra, 707.

FN5. General Statutes § 52–57(b) provides in relevant part:  “Process in civil actions against the following-described classes of defendants shall be served as follows:  (1) Against a town, upon its clerk, assistant clerk, manager or one of its' selectmen;  (2) against a city, upon its clerk or assistant clerk or upon its mayor or manager ․”.  FN5. General Statutes § 52–57(b) provides in relevant part:  “Process in civil actions against the following-described classes of defendants shall be served as follows:  (1) Against a town, upon its clerk, assistant clerk, manager or one of its' selectmen;  (2) against a city, upon its clerk or assistant clerk or upon its mayor or manager ․”

Tyma, Theodore R., J.