Opinion
No. CV03 40 38 01 S
January 23, 2004
MEMORANDUM OF DECISION RE MOTION TO DISMISS
The plaintiff, Alice Leach, alleges that on May 21, 2001 she was injured due to the negligence of the defendant, the Norwalk housing authority when she slipped and fell on property maintained by the defendant. Attached to her complaint is a November 13, 2001 letter to Curtis Law, the executive director of the housing authority. Plaintiff initiated this action on May 12, 2003.
Before the court is the defendant housing authority's Motion to Dismiss. Therein the defendant contends that because the plaintiff failed to comply with Connecticut General Statutes § 8-67, this court lacks jurisdiction.
General Statutes § 8-67 provides:
Any person injured in person or property within boundaries of property owned or controlled by an authority, for which injury such authority is or may be liable, may bring an action within two years after the cause of action therefor arose to recover damages from such authority, provided written notice of the intention to commence such action and of the time when and the place where the damages were incurred or sustained has been filed with the chairman or the secretary of the authority within six months after the cause of action therefor arose.
The notice provisions of § 8-67 concern whether the "plaintiff has taken proper the steps to warrant recovery." White v. Edmonds, 38 Conn. App. 175, 183, 659 A.2d 748 (1995). "As such, the notice provision of § 8-67 operates as a condition subsequent to liability rather than a condition precedent." Fields v. Housing Authority, 63 Conn. App. 617, 621, 777 A.2d 752, cert. denied, 257 Conn. 910, 782 A.2d 133 (2001). "A notice provision is a condition precedent when the statute containing the notice provision creates a new cause of action unrecognized by the common law . . . Section 8-67 did not create liability where none existed . . . Rather, it provides procedural limitations on the ability to recover on a cause of action already available . . . Indeed, [a] written notice is not a condition precedent to the bringing of the action but is a limitation creating a condition subsequent." (Citations omitted; internal quotation marks omitted.) Fields, 63 Conn. App. at 621. "Compliance with the statute is a condition subsequent such that noncompliance, when specially pleaded, concerns only whether the plaintiff has taken the proper steps to warrant recovery." (Internal quotation marks omitted.) Fields, 63 Conn. App. at 621-22.
When a defendant specially pleads that the plaintiff has not complied with the statute, the plaintiff is barred from recovering. The proper vehicle to raise this defense is through a motion for summary judgment, not a motion to dismiss, See Torneo v. Old Colony Beach Club Association, No. 556367 Superior Court New London Judicial District at New London (October 10, 2001, Corradino, J.) ( 30 Conn. L. Rptr. 481); Whitcomb v. Rural Homes, No. 064718 Superior Court Judicial District of Windham at Putnam (December 4, 2001, Foley, J.) ( 31 Conn. L. Rptr. 10); Fooks v. Norwich Housing Authority, No. 118560 Superior Court Judicial District of New London at New London (October 17, 2000, Martin, J.) ( 28 Conn. L. Rptr. 371).
The defendant's Motion to Dismiss is denied.
DEWEY, JUDGE.