Nemechek v. Town of Ashford, No. X07 Cv 97-0070811 S (May 11, 2000)

2000 Conn. Super. Ct. 5564

• Court: Connecticut Superior Court
• Decided: May 11, 2000
• Docket: No. X07 CV 97-0070811 S
• Status: Unpublished

Opinion

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]

MEMORANDUM OF DECISION On April 21, 1998 the plaintiff Ellen Nemechek filed a complaint against the Town of Ashford, with a return date of May 19, 1998. The Town of Ashford subsequently filed a third party complaint on September 23, 1999 against Eleanore C. Provencal, Roland C. Provencal, d/b/a RCP, Inc., and the Town of Ashford Board of Education. Apportionment defendants move to dismiss the complaint on the ground that the court lacks subject matter jurisdiction. The apportionment defendants claim that the court lacks subject matter jurisdiction because the apportionment complaint was not served within 120 days of the return date of the original complaint.

Connecticut General Statute (C.G.S.) § 52-102b(a) states that "Any such writ, summons and complaint, hereinafter called the apportionment complaint, shall be served within one hundred twenty days of the return date specified in the plaintiffs original complaint." Since C.G.S. §52-102b creates a right that did not exist at common law, it must be strictly construed: "[w]here . . . 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 . . . [U]nder such circumstances, the time limit is a substantive and jurisdiction prerequisite," Ambroise v.William Raveis Real Estate, Inc., 226 Conn. 757, 766-67, 628 A.2d 1303 (1993).

Since the apportionment plaintiff failed to file the apportionment complaint within the 120 days specified in the statute, the apportionment defendants' motion to dismiss is granted.

SO ORDERED,

BISHOP, J.