Barry K. Stevens, J.

UNPUBLISHED OPINION

MEMORANDUM OF DECISION ON DEFENDANT'S MOTION TO DISMISS

Barry K. Stevens, J.

STATEMENT OF THE CASE

This action is an administrative appeal instituted by the plaintiff, Karen Zaneski-Nettleton, against the defendant, the Connecticut Department of Social Services (DSS). The plaintiff is the sole heir of and power of attorney for her aunt, Natalie Galway. In DSS' decision, the agency discontinued Galway's medical assistance benefits and filed a public assistance lien on Galway's property in Milford, Connecticut. The plaintiff requested the agency to reconsider this denial. This request for reconsideration was denied by the administrative hearing officer. In the present action, the plaintiff seeks a reversal of the administrative decision and removal of the lien.

Pending before the court is the defendant's motion to dismiss the complaint for lack of subject matter jurisdiction. This motion was filed on August 24, 2016. In support of the motion, the defendant filed a memorandum and the affidavit of Dulce Frazao. Frazao is the social services operations manager in the DSS office of legal counsel. On September 20, 2016, the plaintiff filed an objection to the motion to dismiss. On October 3, 2016, the court heard oral argument and testimony from the plaintiff. On January 18, 2017, the court ordered the parties to appear for further argument regarding administrative service and notice, and the applicability of General Statutes § 4-180(c). Thereafter, on January 20, 2017, the defendant filed a supplemental affidavit from Frazao. The court heard further oral argument testimony from the plaintiff on February 14, 2017.

The denial of the plaintiff's request for reconsideration was issued on July 16, 2012, and this action was instituted in March 2016. Service was effected in July 2016. In its motion to dismiss, the defendant claims that subject matter jurisdiction is lacking because this action was not instituted within the applicable statutory appeal period. More specifically, the defendant explains that General Statutes § 4-183(c) requires a plaintiff to file and serve an administrative appeal with the Superior Court within forty-five days of the agency's decision, and that the plaintiff filed this action well beyond this statutory time period. In response, the plaintiff claims that she should not be bound by this time limitation because she did not receive formal or actual notice of the denial of the request for reconsideration. She claims that she became aware of the decision only after she instituted this action. The defendant insists that the plaintiff's position must be rejected because a presumption of service applies and that this presumption has not been rebutted by the plaintiff. For the following reasons, the court agrees with the plaintiff and rejects the defendant's argument. The defendant's motion to dismiss is denied and the objection to the motion is sustained.

DISCUSSION

I

" Pursuant to the rules of practice, a motion to dismiss is the appropriate motion for raising a lack of subject matter jurisdiction." St. George v. Gordon, 264 Conn. 538, 545, 825 A.2d 90 (2003); see also Practice Book § 10-31(a). " A court deciding a motion to dismiss must determine not the merits of the claim or even its legal sufficiency, but rather, whether the claim is one that the court has jurisdiction to hear and decide." (Internal quotation marks omitted.) Hinde v. Specialized Education of Connecticut, Inc., 147 Conn.App. 730, 740-41, 84 A.3d 895 (2014). " When a trial court decides a jurisdictional question raised by a pretrial motion to dismiss on the basis of the complaint alone, it must consider the allegations of the complaint in their most favorable light . . . In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader." (Internal quotation marks omitted.) Conboy v. State, 292 Conn. 642, 651, 974 A.2d 669 (2009). " [T]he plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 430 n.12, 829 A.2d 801 (2003).

II

The plaintiff's appeal of the DSS' decision is governed by the Uniform Administrative Procedures Act, General Statutes § 4-166 et seq. As previously stated, § 4-183(c) of the Act, provides that an appeal of an administrative decision must be filed and served " within forty-five days after the mailing of the final decision under section 4-180." This time period within which an administrative appeal must be filed is a jurisdictional requirement and renders the appeal subject to dismissal if not met. Hanson v. Department of Income Maintenance, 10 Conn.App. 14, 16, 521 A.2d 208 (1987).

In support of the motion to dismiss, the defendant filed the affidavit of Frazao. In this affidavit, Frazao explains that the policy of DSS is to " deposit a Hearing Officer's decision in the United States mail on the date that the decision is dated and issued . . . Such practice and policy was followed as to the two Department Hearing Officer's decisions concerning Karen Zaneski-Nettleton's administrative agency appeal."

In its order for further argument, the court inquired about whether the decision was mailed by DSS through certified or registered mail, return receipt requested as required by § 4-180(c). In a supplemental affidavit, Frazao explained that the certified mail requirement of § 4-180(c) was modified by General Statutes § 1-2b. This statute allows " electronic and digital method of receiving the return receipt." Under § 1-2b, confirmation that a mailing has been received can be verified from the Postal Service's website by using the tracking number given to the mailing. In this particular case, however, DSS did not copy and store the tracking information, and the Postal Service's website no longer maintains the 2012 confirmation records. Frazao opines that DSS' use of its mailing procedures in this particular case is supported by there being no indication in Galway's file that the reconsideration notice was returned by the Postal Service, which would have occurred if the mailing had not been delivered, but on the other hand, the mailing would not have been returned if it had not been actually mailed as claimed by the plaintiff.

The plaintiff testified that as Galway's power of attorney, she collected Galway's mail at two locations because Galway was in a nursing home. She received correspondence from DSS at her own personal address and at Galway's condominium. The plaintiff testified that except for the notice regarding the reconsideration ruling, she received all other correspondence from DSS including the initial decision of denial. The defendant contends that the plaintiff's testimony that she did not receive notice of the reconsideration ruling lacks credibility because, among other things, she waited almost four years after the decision was made to file the present action, and the present action was done in response to a pending foreclosure action against Galway's property. In response, the plaintiff testified, under oath, that she never missed any deadlines in the past ten years as Galway's power of attorney. The plaintiff further testified that she did not initiate this present claim in response to the foreclosure action, and in fact, encouraged the condominium association to foreclose because she could no longer pay the associated fees. The court credits the plaintiff's testimony.

III

The court agrees with the defendant that the " mailbox" rule is implicated here. The mailbox rule provides that a " properly stamped and addressed letter that is placed into a mailbox or handed over to the United States Postal Service raises a rebuttable presumption that it will be received." Echavarria v. National Grange Mutual Ins. Co., 275 Conn. 408, 418, 880 A.2d 882 (2005). " [I]n Connecticut the law is that if a letter is mailed to the right address with the correct postage, it is presumed it was received." Precision Mechanical Services, Inc. v. Scottsdale Ins. Co., Superior Court, judicial district of New Haven, Docket No. CV-98-0416692 (March 3, 2006, Corradino, J.) (41 Conn.L.Rptr. 65, 69, ). " Pursuant to the mailbox rule, the burden then shifts to [the party denying receipt] to present evidence that rebuts this presumption." (Footnote omitted.) Echavarria v. National Grange Mutual Ins. Co., supra, 418.

The Administrative Procedure Act qualifies the application of the mailbox rule, because as previously discussed, under § 4-180, as modified by § 1-2b, the agency is required to mail the administrative notice and acquire evidence of receipt either through a return receipt or through electronic tracking verification. In this particular case, DSS cannot provide evidence of receipt because DSS neither utilized certified mail in order to acquire a " green card, " nor maintained a record of the tracking information. Consequently, the court cannot conclude that the mailing prerequisites necessary to trigger commencement of the 45-day appeal period of § 4-183(c) have been met by DSS.

Moreover, even if the court could conclude that the reconsideration decision was mailed as DSS maintains, the court credits the plaintiff's testimony and finds that she has rebutted the presumption of receipt. In evaluating disputed facts and conflicting evidence, the court must weigh the evidence and the parties' testimony. The court may consider a witness' appearance and demeanor, as well as the witness' opportunity and ability to perceive, experience, and remember the facts. See State v. A.M., 156 Conn.App. 138, 152, 111 A.3d 974 (2015), aff'd, 324 Conn. 190, 152 A.3d 49 (2016); State v. Book, 155 Conn.App. 560, 572, 109 A.3d 1027, cert. denied, 318 Conn. 901, 122 A.3d 632 (2015). Additionally, the court may consider the reasonableness or plausibility of a party's testimony and the consistency or inconsistency of her testimony.

Applying these considerations here, the court credits the plaintiff's testimony that she did not receive the reconsideration decision and discredits the defendant's inference that the plaintiff brought this case solely as a result of the foreclosure action. First, the plaintiff claims that she has always received notices at both her address and Galway's address, but did not receive the July 16, 2012 notice at either address. Second, she claims that she received all other filings in the past ten years. Moreover, there is no direct evidence that the defendant sent the reconsideration decision to the plaintiff and Galway, and as previously discussed, DSS has no evidence verifying receipt. As Frazao stated, the DSS " did not independently maintain a historical record of the mailing and Signature Confirmation process."

In support of its argument that the plaintiff has not rebutted the presumption of receipt under the mailbox rule, DSS insists that the plaintiff has merely denied receiving notice of the reconsideration decision, and as a matter of law, such a denial is insufficient to overcome the presumption of receipt. The court disagrees.

Contrary to the defendant's position, there is no Connecticut appellate authority on whether a simple denial of receipt of notice is sufficient to overcome the presumption created by the mailbox rule. The defendant's reliance on Echavarria v. National Grange Mutual Ins. Co., supra, 275 Conn. 418, is misplaced. In Echavarria, the court addressed the mailbox rule, but did not reach the question about what evidence was necessary to rebut the presumption of receipt created under the rule because the party in that case did not actually deny receipt of the mailing.

There is a split among the trial courts as to this issue. Some courts have adopted the defendant's position holding that " [a] mere denial of receipt is insufficient to rebut the presumption that mail was received." Volikas v. Kmart, Superior Court, judicial district of Ansonia-Milford, Docket No. CV-01-0076466-S, (January 12, 2004, Robinson, J.). Accord, Precision Mechanical Services, Inc. v. Scottsdale Ins. Co., supra, 41 Conn.L.Rptr. 69, .

On the other hand, other courts have held that a simple denial of receipt may be sufficient to overcome the presumption of receipt. In Capone v. Electric Boat Corp., United States District Court, Docket No. 3:06CV1249(JCH), (D.Conn. December 18, 2006), the court observed that the trend in Connecticut appears to be that an addressee's denial of receipt raises a factual dispute that must be resolved by the trier of fact. The court thus held that " [b]ased on this trend . . . by his denial of receipt, [the plaintiff] has raised an issue of fact as to whether he had notice." Id.; see also Provident Funding Associates, L.P. v. Sohn, Superior Court, judicial district of Fairfield, Docket No. CV-13-6037272-S (January 12, 2015, Jennings, J.T.R.) (59 Conn.L.Rptr. 579, 582, ) (" the presumption of receipt by the defendant is rebutted by the [defendant's] sworn statement that he received no notice").

The court agrees with this apparent trend in the case law and rejects the position that a denial alone can never be sufficient to rebut the presumption of receipt under the mailbox rule. The evaluation of this issue should not be controlled by such a per se rule that alters the established rules of evidence that would otherwise apply. The court is persuaded that the better reasoned approach to this issue is that the trier of fact should evaluate all the relevant and probative evidence presented by the parties to determine whether an addressee has rebutted the presumption of receipt created by the mailbox rule. This approach recognizes the role of the trier to resolve disputed factual issues based on the established evidentiary rules regarding the evaluation of witnesses' testimony and the weighing of the evidence in its entirety. See, e.g ., AIG Casualty Co. v. Schweiger, Superior Court, judicial district of Hartford, Docket No. CV-08-4035100-S (September 17, 2009, Bentivegna, J.) (48 Conn.L.Rptr. 593, 595, ) (evaluating both the mailbox rule and the credibility of the addressee's denial of receipt.) The trier should certainly be appreciative that the presumption of receipt itself and the finality of proceedings generally could be substantially undermined by false denials singularly made. See, e.g., In re Trump Taj Mahal Associates, 156 B.R. 928, 939 (Bankr.D.N.J., 1993) (" If a party were permitted to defeat the presumption of receipt of notice resulting from the certificate of mailing by a simple affidavit to the contrary, the scheme of deadlines and bar date under the Bankruptcy Code would come unraveled" [citations omitted; internal quotation marks omitted]). On the other hand, this is a concern appropriately considered in evaluating whether the addressee has met her burden of proof because exactly how does one prove a negative? An addressee's denial of receipt may be rejected because it lacks credibility or persuasiveness particularly when unsupported by any corroborative evidence, but this denial should not be rejected by a per se rule that automatically precludes any consideration of the credibility of the denial.

Furthermore, in this particular case as discussed above, the plaintiff's evidence is appreciatively more than a mere denial of receipt, including the evidence that the plaintiff received mail from DSS at two addresses, all other mail sent from DSS was received by her except for the reconsideration decision, and the agency's failure to provide evidence verifying the mailing as statutorily required.

CONCLUSION

For the foregoing reasons, the defendant's motion to dismiss is denied.