Peter H. Steese v. Nicola J. Viney et al. (2013)

MEMORANDUM OF DECISION RE MOTION TO DISMISS (102.00)

The plaintiff Steese commenced this action against the two above-named Viney defendants by serving a complaint alleging that he suffered injuries caused by the negligent driving of Nicola Viney who was operating a motor vehicle owned by David Viney.   According to the Marshal's return, copies of the complaint were left at the “usual place of abode” of the two defendants described as “60 Benjamin Street, Old Greenwich, Connecticut” on March 22, 2013.

On May 30, 2013 the defendants moved to dismiss for lack of personal jurisdiction over them.   Specifically, they contend that they have not lived at that address, or in Connecticut, since July 2011, and that a lease for 60 Benjamin Street expired in June 2011.   On June 3, 2013 the plaintiffs opposed the motion, not by contesting that 60 Benjamin Street was the defendants' abode, but by contending that the motion was not timely filed pursuant to Practice Book § 10–30, i.e. not filed within 30 days of the filing of an appearance on behalf of the defendants.   The plaintiff's opposition states an appearance was filed on behalf of the defendants on April 30, 2013, and the motion to dismiss was filed on May 30, 2013.   These dates are confirmed by the court file.   The plaintiff's position is contrary to well established law.   Under Practice Book § 10–30 the first day after the filing of an appearance is the first day of the thirty-day period within which to file a motion to dismiss.   Therefore, the motion was timely filed on May 30, 2013.   See Midland Funding, LLC v. Garrett, Superior Court, judicial district of Stamford–Norwalk at Stamford, CV 11 6011332 (December 23, 2011, Tierney, K., J.T.R.) [53 Conn. L. Rptr. 161].

The defendants' motion was accompanied by two “affidavits” in which each affidavit asserted he or she had left the United States in July 2011, to live in the “Middle East” before moving to his or her “present address” in Barbados.   Neither of the affidavits in the May 30, 2013 motion were signed or sworn to.   Exhibit B and C to Motion, Dkt. Entry 102.00.   On June 6, 2013 signed and notarized affidavits by Nicola and David Viney containing the same information as set forth above were filed with the court, as a supplement to the motion to dismiss.   Dkt. Entry 105.00.   The plaintiff objected on June 7, 2013, but again did not contest the defendants' assertion that 60 Benjamin Street was not their abode.

The late filing of the actual affidavits was untidy, but perhaps necessary, because of the thirty-day rule and the present location of the defendants.   It is not enough to defeat a motion to dismiss where it is uncontested that proper abode service was not effected.

The motion to dismiss is granted.

TAGGART D. ADAMS

JUDGE TRIAL REFEREE

Adams, Taggart D., J.T.R.