Michelle Petroccio et al. v. Adam Zadrozny et al. (2013)

MEMORANDUM OF DECISION RE MOTION TO DISMISS COUNTS NINETEEN, TWENTY, TWENTY–ONE, TWENTY–TWO, TWENTY–THREE AND TWENTY–FOUR FOR LACK OF SUBJECT MATTER JURISDICTION BY DEFENDANTS ASIAN BISTRO OF STRATFORD, LLC AND YAT TUNG CHENG

The Motion To Dismiss now before the Court arises out of the one-year statute of limitation contained in the Dram Shop Act, Conn. Gen.Stat. § 30–102.   For the reasons briefly stated below, the Motion must be granted.

Michelle, Daniel, and William Petroccio, the plaintiffs herein, have brought this action against Adam Zadrozny, Yat Tung Cheng, and the Asian Bistro of Stratford, LLC (“Asian Bistro”), for injuries they claim to have suffered as a result of an October 1, 2011 collision between automobiles driven by Zadrozny and Michelle Petroccio.   The claims against Zadrozny are not now before the Court.   Counts Nineteen through Twenty–Four of the Amended Complaint are directed against the Asian Bistro and Cheng, its permittee.   These counts specifically allege that, prior to the accident, “during the course of and through the late afternoon” of October 1, 2011, the Asian Bistro sold alcohol to Zadrozny “while he was already visibly intoxicated.”

The action was commenced against Cheng and the Asian Bistro by service of process on November 15, 2012.   On August 23, 2013, Cheng and the Asian Bistro filed the Motion To Dismiss now before the Court.   The Motion contends that the action against these defendants is untimely under the Dram Shop Act and that the Court is consequently deprived of subject matter jurisdiction.   The Motion was argued on November 18, 2013.

The Dram Shop Act provides that, “No action under the provisions of this section shall be brought but within one year from the date of the act or omission complained of.”   Our Supreme Court has explained that,

Where ․ a specific time limitation is contained within a statute that creates a right of action that did not exist at common law, then the remedy exists only during the prescribed period and not thereafter ․ In such cases, the time limitation is not to be treated as an ordinary statute of limitation, but rather is a limitation on the liability itself, and not of the remedy alone.   The courts of Connecticut have repeatedly held that, under such circumstances, the time limitation is a substantive and jurisdictional prerequisite, which may be raised at any time, even by the court sua sponte, and may not be waived.

Ecker v. Town of West Hartford, 205 Conn. 219, 232, 530 A.2d 1056 (1987).

The Petroccios do not contest the fact that more than one year expired between the act complained of (the service of alcohol to Zadrozny) and the commencement of the action by service of process against the Asian Bistro and Cheng.   They specifically declined the Court's offer to provide an evidentiary hearing on these points.   Their only argument is that the one-year limitation period of the Dram Shop Act incorporates a “discovery rule” analogous to the two-year discovery rule set forth in Conn. Gen.Stat. § 52–584.   The short answer to this argument is that the Act contains no such provision.   It specifically identifies the commencement of the one-year period as “the date of the act or omission complained of.”

Since it is undisputed that the date of the act complained of was October 1, 2011, and that the action was commenced by service of process more than one year from that date, the Motion To Dismiss Counts Nineteen through Twenty–Four of the Amended Complaint must be granted.

Jon C. Blue

Judge of the Superior Court

Blue, Jon C., J.