Opinion
NNHCV156056016
11-10-2015
Jenny Gonzalez v. Hugh Corley
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Jon M. Alander, Judge of the Superior Court.
The defendant has moved to dismiss this action for want of personal jurisdiction. He asserts that the plaintiff failed to properly effect jurisdiction over him pursuant to General Statutes § 52-63(b) because service of process was not made at his last address on file in the Department of Motor Vehicles as the statute requires.
The plaintiff alleges that she suffered injuries from a motor vehicle collision occurring on June 19, 2013 on Ferry Street in New Haven as a result of the defendant's negligent operation of his motor vehicle. The marshal's return dated June 25, 2015 states that he took a number of actions to serve the defendant with a copy of the writ, summons and complaint. First, on June 24, 2015, the marshal left a copy at the purported usual place of abode of the defendant at 239 Clinton Avenue, New Haven. Because the marshal could not verify or confirm the address, on July 7, 2015, the marshal made service pursuant to § 52-63 by leaving a copy at the office of the Commissioner of Motor Vehicles and mailed a copy to the defendant at 239 Clinton Avenue, New Haven.
Although the plaintiff's complaint alleges that the motor vehicle accident occurred on June 19, 2015, the accident apparently occurred on June 19, 2013 as reflected in the subsequent pleadings and filing of both parties.
The defendant filed the instant motion to dismiss asserting that service was ineffectual because 239 Clinton Avenue, New Haven was not his usual place of abode on June 25, 2015 and it was not his last address on file with the Department of Motor Vehicles. I agree.
" [T]he Superior Court . . . may exercise jurisdiction over a person only if that person has been properly served with process, has consented to the jurisdiction of the court or has waived any objection to the court's exercise of personal jurisdiction . . . [W]hen a particular method of serving process is set forth by statute, that method must be followed . . . Unless service of process is made as the statute prescribes, the court to which it is returnable does not acquire jurisdiction." (Citation omitted; internal quotation marks omitted.) Jimenez v. DeRosa, 109 Conn.App. 332, 338, 951 A.2d 632 (2008).
First, it is uncontested that 239 Clinton Avenue, New Haven was not the defendant's usual place of abode in June 2015. The defendant filed an affidavit that he moved from 239 Clinton Avenue to 65 Sheldon Terrace, New Haven, in October of 2013. The marshal also filed an affidavit subsequent to his return in which he stated that he had been informed by a neighbor of the defendant at 239 Clinton Avenue that the defendant had been evicted and no longer lived at that address. Acting on this information, the marshal attempted to effectuate service pursuant to § 52-63(b). In light of the fact that, in June 2015, the defendant did not reside at 239 Clinton Avenue, the controlling issue is whether the plaintiff made proper service under § 52-63(b).
In situations where a motorist has caused injury to a person or property, constructive service is authorized by statute. General Statutes § 52-63(b) allows service of process to be made on a motor vehicle operator by leaving a copy of the writ, summons and complaint at the office of the Commissioner of Motor Vehicles and by mailing a copy to the defendant " at his last address on file in the Department of Motor Vehicles if it is impossible to make service of process at the operator's last address on file in the Department of Motor Vehicles . . ."
General Statutes § 52-63(b) provides: " Service of civil process may be made on a motor vehicle operator licensed under the provisions of chapter 246 by leaving a true and attested copy of the writ, summons and complaint at the office of the Commissioner of Motor Vehicles at least twelve days before the return day and by sending such a true and attested copy at least twelve days before the return day, by registered or certified mail, postage prepaid and return receipt requested, to the defendant at his last address on file in the Department of Motor Vehicles if (1) it is impossible to make service of process at the operator's last address on file in the Department of Motor Vehicles, and (2) the operator has caused injury to the person or property of another."
In determining whether service via the Commissioner of Motor Vehicles was appropriate in this case, the court must determine whether the writ, summons and complaint were mailed by the plaintiff to " the defendant at his last address on file in the Department of Motor Vehicles." General Statutes § 52-63(b). At the hearing on the defendant's motion to dismiss, the court heard from Brian Clarke, an employee of the Department of Motor Vehicles. Based on that testimony which I determine to be credible, I find that, in July 2015, the time of the attempted service by the plaintiff pursuant to § 52-63(b), the defendant's last address on file with the Department of Motor Vehicles was 65 Sheldon Terrace, New Haven. That address had been the last address on file with the department since June 23, 2014 when a duplicate license was issued to the defendant.
The plaintiff contends that I should find that the address of 239 Clinton Avenue was also on file with the Department of Motor Vehicles as the last address of the defendant at the time of service. She bases her claim on the testimony of Mark White, the state marshal who made service. Even were I to credit White's testimony, it does not lead to such a finding. White testified that he contacted the State Marshal Commission and was provided the address of 239 Clinton Avenue as the address on file with the Department of Motor Vehicles. He did not contact the Department of Motor Vehicles directly to obtain the information. As stated previously, I find as a fact that the last address of the defendant on file with the Department of Motor Vehicles was the address of 65 Sheldon Terrace, New Haven. There is no evidence in the record that the Department of Motor Vehicles keeps multiple addresses for operators in its files as the " last address" for the operator.
The plaintiff mailed a copy of the writ, summons and complaint in this case to the defendant at 239 Clinton Avenue, New Haven. Because 65 Sheldon Terrace, New Haven was the defendant's last address on file in the Department of Motor Vehicles at the time of service, the plaintiff failed to comply with the requirement of § 52-63(b) that he mail process to the defendant's last address on file in the department.
The plaintiff contends that service was proper because service was made at the last known address of the defendant that was reasonably ascertainable. She argues that service was sufficient since the marshal obtained an address which he believed was the last address of the defendant on file with the Department of Motor Vehicles and it was the address contained in the police accident report. The plaintiff cites Hartley v. Vitiello, 113 Conn. 74, 154 A. 255 (1931), as support for her position. That case is inapposite to the situation at hand. In Hartley, the court was interpreting the predecessor to General Statutes § 52-62, which authorized service on a nonresident in an action for negligent operation of a motor vehicle. The statute provided that process in a civil action against a nonresident may be served by leaving a copy with the office of the Commissioner of Motor Vehicles and mailing a copy to the defendant " at his last-known address." Hartley v. Vitiello, supra, 113 Conn. 78-79. The court interpreted " last-known address" to mean his actual address, unless the defendant had disappeared, in which case the term means " his last address as it is reasonably possible to ascertain it." Id., 80. Section 52-63(b) does not use the term " last known address; " it uses the phrase " last address on file in the Department of Motor Vehicles." That phrase can only reasonably refer to the actual last address on file with the Department of Motor Vehicles. Hartley is instructive on one point: " This address the plaintiff must learn at his peril and only if the copy is mailed to it is there a compliance with the statute." Hartley v. Vitiello, supra, 113 Conn. 80.
In light of the above, the defendant's motion to dismiss is hereby granted.