Opinion
No. CV 00-0083999S
July 17, 2003
MEMORANDUM OF DECISION RE DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (#114)
The defendants have moved for summary judgment in this action brought by plaintiff to foreclose on a mechanic's lien on the grounds that the lien was not served on defendants within the time period required by General Statutes § 49-34. For the following reasons, the motion for summary judgment is treated as a motion to dismiss and granted.
Section 49-34 provides that a mechanic's lien is not valid unless filed on the relevant land records within 90 days after the cessation of services or provision of materials and served upon the land owner within thirty days thereafter. Failure to comply with those provisions deprives the court of jurisdiction over the mechanic's lien action. Santa Fuel, Inc. v. Vargo, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 00-0374050 (May 30, 2001, Brennan, J.) ( 29 Conn.L.Rptr. 547); Steeltech Building Products v. Viola, Superior Court, judicial District of Hartford, Docket No. CV 98-0580266 S (May 15, 2000, Wagner, J.T.R.). Although the defendants raise this claim by way of motion for summary judgment, the court must consider a claim of lack of subject matter jurisdiction whenever raised. In accord with the practice of other courts, the court will treat defendant's claim as a motion to dismiss.
The statute provides in relevant part as follows: "A mechanic's lien is not valid, unless the person performing the services or furnishing the materials, (1) within ninety days after he has ceased to do so, lodges with the town clerk of the town in which the building, lot or plot of land is situated a certificate in writing, . . . (2) within the same time, or prior to the lodging of the certificate but not later than thirty days after lodging the certificate, serves a true and attested copy of the certificate upon the owner of the building, lot or plot of land in the same manner as is provided for the service of the notice in section 49-35."
"Although `the proper way to challenge subject matter jurisdiction is by a motion to dismiss, rather than a motion for summary judgment,' Booth v. Flanagan, 19 Conn. App. 413, 415, 562 A.2d 592 (1989), the court must nonetheless consider the issues of standing and subject matter jurisdiction even when raised by the procedural vehicle of a motion for summary judgment. In accord with the practice of other courts, this court will treat the defendant's claims as a motion to dismiss. See Kogut v. Church Homes, Inc., Superior Court, judicial district of New Haven at New Haven, Docket No. CV 00-0436717S (November 5, 2002, Robinson, J.); Waldo v. Ohno, Docket No. CV 01-0451985S, Superior Court, judicial district of New Haven at New Haven (September 6, 2002, Cellotto, J.); Moss v. Commissioner of Correction, Superior Court, judicial district of Waterbury, Docket No. CV 97-0140789S (September 17, 2001, Holzberg, J.). `[W]henever a lack of jurisdiction to entertain a particular proceeding comes to a court's notice, the court can dismiss the proceeding upon its own motion.' (Internal quotation marks omitted.) Marine MidLand Bank v. Ahern, 51 Conn. App. 790, 797, 724 A.2d 537 (1999), appeal dismissed, 252 Conn. 151, 745 A.2d 189 (2000)." Law v. Sullivan, Superior Court, judicial district of Litchfield, Docket No. CV 03-0089714S (May 19, 2003).
Although neither party has offered any affidavits, documentary evidence, or testimony with regard to the issue pending before the court, the allegations of the complaint itself, even when read most favorably to plaintiff, are that the mechanic's lien was not served on defendants until 101 days after the plaintiff finished performing the services and furnishing the materials that are the basis for its claim of a mechanic's lien. Accordingly, the court lacks subject matter jurisdiction over the plaintiff's claim for a mechanic's lien, and the action is accordingly DISMISSED.
BY THE COURT CT Page 8453-bv
STEPHEN F. FRAZZINI JUDGE OF THE SUPERIOR COURT