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Nuzzo v. Cathedral of Saint Joseph, Not Reported in A.3d (2015)
2015 WL 3975125
Only the Westlaw citation is currently available.
UNPUBLISHED OPINION. CHECK
COURT RULES BEFORE CITING.
Cathedral. On February 4, 2015, 2 the plaintiff filed an
objection to the motion. The objection included an affidavit of
Niziankiewicz. Finally, on February 23, 2015, the Cathedral
filed a supplemental memorandum, with an attached affidavit
of Odiaka. This matter was heard on short calendar on March
23, 2015.
Superior Court of Connecticut,
Judicial District of New Haven.
Theresa NUZZO
v.
CATHEDRAL OF SAINT JOSEPH, et al.
No. CV146047009S.
|
June 4, 2015.
Attorneys and Law Firms
Kennedy Johnson Schwab & Roberge LL, New Haven, for
Theresa Nuzzo.
Cooney Scully & Dowling, Hartford, for Cathedral of Saint
Joseph, et al.
WILSON, J.
FACTS
*1 On May 6, 2014, the plaintiff, Theresa Nuzzo,
commenced the present action, sounding in premises liability,
against the defendants, the Cathedral of Saint Joseph
(the Cathedral) and The Hartford Catholic Development
Corporation. Count one of the complaint was brought against
the Cathedral, and count two of the complaint was brought
against The Hartford Catholic Development Corporation.
According to the state marshal's return of service, Keith
Niziankiewicz served process on the Cathedral by leaving a
verified true and attested copy of the original writ, summons,
and complaint, in the hands of Claude–Evelyne Odiaka, the
parish secretary. 1 On November 6, 2014, the defendants filed
their appearance in the present case.
On December 8, 2014, the Cathedral filed a motion to
dismiss. In support of its motion, the Cathedral filed an
affidavit of John McCarthy, a priest and rector of the
DISCUSSION
“[A]n action commenced by ... improper service must be
dismissed.” (Internal quotation marks omitted.) Matthews v.
SBA, Inc., 149 Conn.App. 513, 530, 89 A.3d 938, cert. denied,
312 Conn. 917, 94 A.3d 642 (2014). “[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 ... The jurisdiction that is found lacking ...
is jurisdiction over the person ...” (Internal quotation marks
omitted.) Morgan v. Hartford Hospital, 301 Conn. 388, 400,
21 A .3d 451 (2011).
“When jurisdiction is based on constructive service,
jurisdiction cannot arise solely from the acts recited in the
[officer's] return ... When a motion to dismiss for lack of
personal jurisdiction raises a factual question which is not
determinable from the face of the record, the burden of proof
is on the plaintiff to present evidence which will establish
jurisdiction ... Thus, once the defendant contested personal
jurisdiction ... it was the plaintiff's burden to produce evidence
adequate to establish such jurisdiction.” (Citations omitted;
internal quotation marks omitted.) Cogswell v. American
Transit Ins. Co., 282 Conn. 505, 515–16, 923 A.2d 638
(2007).
“[The] general rule is different, however, with respect
to determining whether the court has jurisdiction over a
defendant who is served personally or through abode service.
In those circumstances, as opposed to situations wherein
service is constructive, e.g., service on a foreign corporation
or nonresident individual by mail, the defendant bears the
burden of disproving personal jurisdiction. The general
rule putting the burden of proof on the defendant as to
jurisdictional issues raised is based on the presumption
of the truth of the matters stated in the officer's return.
When jurisdiction is based on personal or abode service, the
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Shaikh, Ryaan 4/8/2025
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Nuzzo v. Cathedral of Saint Joseph, Not Reported in A.3d (2015)
matters stated in the return, if true, confer jurisdiction. When
jurisdiction is based on constructive service, jurisdiction
cannot arise solely from the acts recited in the [officer's]
return.” (Internal quotation marks omitted.) Golodner v.
Women's Center of Southeastern Connecticut, Inc., 281 Conn.
819, 825–26, 917 A.2d 959 (2007). “[A] defendant who
contests the facts stated in the return bears the initial burden
of disproving personal jurisdiction.” (Emphasis omitted.)
Jimenez v. DeRosa, 109 Conn.App. 332, 341, 951 A.2d 632
(2008).
*2 The Cathedral moves to dismiss on the ground that there
is a lack of personal jurisdiction due to the insufficient service
of process. Specifically, the Cathedral argues that the plaintiff
has failed to meet the service requirements of General Statutes
§§ 33–1053 and 52–57.
The plaintiff counters that the Cathedral's motion is untimely
and that, thus, the Cathedral has waived any objection as to
personal jurisdiction. In the alternative, the plaintiff contends
that the service of process in the present matter was proper
because Niziankiewicz verified that Odiaka was authorized
to accept service on behalf of the Cathedral, and because the
Cathedral cannot claim that service was not proper where
Odiaka accepted service on behalf of the Cathedral.
I
The Cathedral Has Not Waived Ability
To Challenge Personal Jurisdiction
The plaintiff argues that Practice Book § 10–30(b) requires
the Cathedral to file the motion to dismiss within thirty days
of the filing of the appearance, and that the Cathedral filed
the motion on December 8, 2014, which is two days after the
December 6, 2014 deadline. Practice Book § 10–30(b) states:
“Any defendant, wishing to contest the court's jurisdiction,
shall do so by filing a motion to dismiss within thirty days of
the filing of an appearance.”
In the present case, the Cathedral filed its appearance on
November 6, 2014. Thirty days after the filing of the
appearance is December 6, 2014, which is a Saturday. The
Cathedral filed its motion to dismiss on December 8, 2014,
which was on Monday, the following business day. The
Practice Book states that when the last day for filing a motion
falls on a day the office is not open, such as a Saturday, then
the last day for filing shall be the next business day on which
the office is open. See Practice Book § 7–17 (“[i]f the last
day for filing any matter in the clerk's office falls on a day on
which such office is not open as thus provided ... then the last
day for filing shall be the next business day upon which such
office is open”).
Thus, because the thirty-day deadline for filing the motion to
dismiss falls on December 6, 2014, which is a Saturday, and
the Cathedral properly filed on the following business day,
December 8, 2014, the motion to dismiss was filed in a timely
manner. 3
II
Service of Process Upon the Cathedral Was Not Sufficient
The plaintiff had a number of options for serving process upon
the Cathedral. The parties agree that the relevant provisions
in the present case are General Statutes §§ 33–1053 and
52–57(c). Section 33–1053 states, in relevant part, that
service upon a nonstock corporation may be made upon such
corporation's registered agent for service. 4 Alternatively,
subsection (c) of § 52–57 lists the persons upon whom
service may be made, and states, in relevant part: “In actions
against a private corporation, service of process shall be made
either upon the president, the vice president, an assistant vice
president, the secretary, the assistant secretary, the treasurer,
the assistant treasurer, the cashier, the assistant cashier, the
teller or the assistant teller or its general or managing agent
or manager or upon any director resident in this state, or the
person in charge of the business of the corporation or upon
any person who is at the time of service in charge of the office
of the corporation in the town in which its principal office or
place of business is located.”
*3 “If a plaintiff chooses to effectuate service of process
upon an individual named in § 52–57(c), the burden is on such
plaintiff to offer evidence or testimony relating to the position
and responsibilities of the individual accepting service on
behalf of the defendant.” Hanton v. Connection, Inc., Superior
Court, judicial district of New Haven, Docket No. CV–
10–5033331–S (December 2, 2010, Robinson, A.J.), citing
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Nuzzo v. Cathedral of Saint Joseph, Not Reported in A.3d (2015)
Nelson v. Stop & Shop Cos. 25 Conn.App. 637, 642, 596 A.2d
4, cert. denied, 220 Conn. 924, 598 A.2d 364 (1991).
In the present case, the marshal's return of service states,
in relevant part: “I left a verified true and attested copy of
original writ, summons, complaint and statement of demand,
with and in the hands of Claude–Evelyne Odiaka, parish
secretary, and accepting for the within named defendant,
Cathedral of Saint Joseph.” Even though the marshal's return
is prima facie evidence of the facts stated therein, the
Cathedral does not dispute the facts stated in the return.
Instead, the Cathedral argues that the parish secretary, Odiaka,
is not authorized to accept service of process on behalf
of the Cathedral. Where, as here, a motion to dismiss for
lack of personal jurisdiction raises a factual question not
determinable from the face of the record, the burden of proof
is on the plaintiff to present evidence which will establish
jurisdiction. See Nelson v. Stop & Shop Cos., supra, 25
Conn.App. at 642.
In support of her position, the plaintiff countered with
an affidavit from Niziankiewicz, the state marshal.
Niziankiewicz stated, in relevant part, that he “verified that
Claude–Evelyne Odiaka was authorized to accept service
on behalf of Cathedral of Saint Joseph.” (Affidavit of
Niziankiewicz, ¶ 4.) The affidavit did not include any further
facts, such as how Niziankiewicz “verified” that Odiaka was
authorized to accept service, whether Odiaka was a registered
agent for service, or a description of Odiaka's responsibilities
and duties.
On the other hand, the Cathedral has submitted an affidavit
from McCarthy, a priest at the Cathedral, as well as an
affidavit from Odiaka. The affidavits submitted by the
Cathedral both state the following relevant facts: Odiaka was
employed as a secretary at the Cathedral at all relevant times;
Odiaka was not, at anytime, an officer, director, or manager
of the Cathedral; Odiaka was not, at any time, the registered
agent for service for the Cathedral; and Odiaka was not, at
any time, authorized to accept service of process on behalf
of the Cathedral. In addition, the affidavit of McCarthy states
that Odiaka was not, at any time, the person in charge of the
Cathedral. Furthermore, the affidavit of Odiaka states that she
did not verify or make any statement to the marshal serving
process in the matter that she was authorized to accept service
of process on behalf of the Cathedral. 5
Based on the evidence before the court, the plaintiff has
not met her burden to show that the Cathedral was properly
served, pursuant to either § 33–1053 or § 52–57(c). Firstly,
as to § 33–1053, the plaintiff has failed to offer evidence
that Odiaka is the registered agent for service. In contrast,
the Cathedral has submitted evidence that specifically states
that Odiaka was not, at any time, the registered agent for
service for the Cathedral. (Affidavit of Odiaka, ¶ 6; Affidavit
of McCarthy, ¶ 8.)
*4 Secondly, as to § 52–57(c), although it is undisputed that
Odiaka is the parish secretary at the Cathedral, the Cathedral
has presented admissible evidence that Odiaka was not, at
any time, an officer, director, or manager of the Cathedral
(Affidavit of Odiaka, ¶ 5; Affidavit of McCarthy, ¶ 7), and
was not the person in charge of the Cathedral (Affidavit
of McCarthy, ¶ 10). As such, the Cathedral has provided
evidence that Odiaka is not qualified to accept service under
§ 52–57 because: (1) Odiaka is not one of the corporate
officers listed in subsection (c) of § 52–57; (2) Odiaka is not
a manager or director of the corporation; and (3) Odiaka is
not in “charge of the office of the corporation in the town in
which its principal office or place of business is located.” 6
The plaintiff has not presented any evidence or testimony that
describes Odiaka's position, rank, and responsibilities. The
conclusory statement that Niziankiewicz verified that Odiaka
was authorized to accept service on behalf of the Cathedral
does not satisfy the plaintiff's burden. Thus, the plaintiff has
failed to meet her burden to offer evidence or testimony
relating to the position and responsibilities of Odiaka. 7
CONCLUSION
For the foregoing reasons, the Cathedral's motion to dismiss
count one of the complaint is granted.
All Citations
Not Reported in A.3d, 2015 WL 3975125
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Nuzzo v. Cathedral of Saint Joseph, Not Reported in A.3d (2015)
Footnotes
1
May 7, 2014, Niziankiewicz also served process on The Hartford Catholic Development Corporation.
2
The objection to the motion to dismiss is untimely because it was filed more than thirty days after the Cathedral
filed its motion to dismiss. See Practice Book § 10–31(a) (“[a]ny adverse party shall have thirty days from the
filing of the motion to dismiss to respond to the motion to dismiss ...”). Nevertheless, because the Cathedral
has not objected, the memorandum may be considered by the court. See Southport Manor Convalescent
Center, Inc. v. Foley, 216 Conn. 11, 12–13 n. 1, 578 A.2d 646 (1990) (“Practice Book § [10–31] ... [has]
been amended so that a party who files an untimely memorandum is no longer deemed to consent to the
granting of a motion made under [this] section”); see also Fennelly v. Norton, 103 Conn.App. 125, 146–47
n. 4, 931 A.2d 269, cert. denied, 284 Conn. 918, 931 A.2d 936 (2007) (“[i]n the absence of any objection by
the defendant on [the] basis [that the plaintiffs did not file a memorandum of law objecting to the defendant's
motion to dismiss], or any appellate case law making such a filing mandatory, this oversight by the plaintiffs
is not fatal to their claims”).
3
During the March 2, 2015 Short Calendar, the court (Blue, J.) determined that the motion to dismiss was
timely.
4
General Statutes § 33–1053 states, in full: “(a) A corporation's registered agent is the corporation's agent for
service of process, notice or demand required or permitted by law to be served on the corporation. Service
may be effected by any proper officer or other person lawfully empowered to make service by leaving a true
and attested copy of the process, notice or demand with such agent or, in the case of an agent who is a
natural person, by leaving it at such agent's usual place of abode in this state.
“(b) If a corporation has no registered agent, or the agent cannot with reasonable diligence be served, the
corporation may be served by any proper officer or other person lawfully empowered to make service by
sending a true and attested copy of the process, notice or demand by registered or certified mail, return
receipt requested, addressed to the secretary of the corporation at its principal office. Service is effective
under this subsection at the earliest of: (1) The date the corporation receives the mail; (2) the date shown
on the return receipt, if signed on behalf of the corporation; or (3) five days after its deposit in the United
States mail, as evidenced by the postmark, if mailed postage prepaid and correctly addressed.
“(c) This section does not prescribe the only means, or necessarily the required means, of serving a
corporation.”
5
At short calendar, the parties were offered an opportunity to provide additional evidence through an
evidentiary hearing. The parties decided that an evidentiary hearing was not necessary, and that the court
may rule on the matter based on the submitted affidavits.
6
At short calendar, the Cathedral argued that Odiaka was a secretary serving as an administrative assistant.
Although neither party has provided evidence as to the exact nature of Odiaka's job description, to the extent
that Odiaka is only responsible for administrative functions, leaving service of process in her hands is not
sufficient to satisfy the service requirements of § 52–57(c). See Senderoff v. Talmadge Health Care, Superior
Court, judicial district of New Haven, Docket No. CV–11–6017960–S (April 3, 2012, Young, J.) (holding that
service to “administrative assistant” was not sufficient to satisfy the requirements of § 52–57).
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Nuzzo v. Cathedral of Saint Joseph, Not Reported in A.3d (2015)
7
It should be noted that the plaintiff is mistaken in her claim that the Cathedral “cannot now claim that service
was improper in light of the fact that [its] agent accepted service on [the Cathedral's] behalf.”
Firstly, the court in Nelson v. Stop & Shop Cos., supra, 25 Conn.App. at 643, affirmed the trial court's
ruling that the individual served lacked sufficient authority to be an appropriate agent of service under §
52–57, even though the plaintiff offered the affidavit of the deputy sheriff that stated that the individual
served accepted the papers, and never indicated he was unauthorized to accept service. In reaching this
conclusion, the Appellate Court held: “The plaintiff offered an affidavit stipulated to by the defendant stating
what the serving officer did, but the plaintiff did not seek to offer testimony concerning the position, rank,
duties and responsibilities of the operation store manager who was served. The trial judge is a neutral
arbiter and it is not his responsibility to instruct counsel.” Id., at 642–43.
Moreover, to the extent that the Niziankiewicz's affidavit implies that Odiaka misrepresented that she had
authority to accept service, it should be noted that “Connecticut law requires that the recipient of service
have actual and not merely apparent authority to accept service ... The burden was upon the plaintiff to
establish that the individuals who received service were legally authorized to do so.” (Citation omitted.)
Hanton v. Connection, Inc., supra, Superior Court, Docket No. CV–10–5033331–S. The plaintiff has failed
to present evidence as to whether the secretary had actual authority to accept service.
End of Document
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