Opinion
No. TTD-CV-06-5000659-S
September 6, 2006
MEMORANDUM OF DECISION (RE MOTION TO DISMISS)
The defendant (Lark's) moves to dismiss all counts of the complaint on the grounds that the action was returned to the Judicial District of Hartford, which is an improper venue because the plaintiff resides in Tolland County and Lark's, Inc. also is located in Tolland County.
Venue is a procedural matter and the proper remedy for filing in the wrong venue is a transfer of the action to the proper venue. Savage v. Aronson, 214 Conn. 256, 261-63 (1990). The case was, appropriately, transferred from the Hartford Judicial District to the Tolland Judicial District on July 25, 2006. Accordingly, the motion to dismiss for this reason is denied.
Additionally, Lark's has moved to dismiss the first count of the complaint, which claims damages under General Statutes § 30-102, the so-called Dram Act alleging the Lark's served alcohol to an intoxicated person, which resulted in the collision with the plaintiff.
Lark's claims the first count is time barred because it was not brought within one year of the act complained of, Connecticut General Statues § 30-12.
The action was originally brought within the one-year period, but process was served on a person who was not the agent for service of process. Lark's filed a motion to dismiss based on that fact (insufficiency of service) and said motion to dismiss was granted on November 7, 2005.
Thereafter the plaintiff filed a new action, serving the proper agent for service. However, the new action commenced with service on Lark's more than three months after the one-year date from the act complained of.
The plaintiff objects to the motion to dismiss on the grounds that the new complaint was brought under Connecticut General Statutes § 52-592(a) and/or 52-593, the so called accidental failure of suit state. The Court agrees with the plaintiff that the "accidental failure of suit" statute is applicable in this case, which allows for a new action to be brought within one year after the determination (dismissal) of the original action when that action has been dismissed because of insufficient service or want of jurisdiction. Connecticut General Statutes § 52-592(a).
The "accidental failure of suit" statute tolls the running of the statute of limitations where there are defects in service. Dana Investment v. Robinson Cole, 2003 Ct.Sup. 142, 1/2/03 (Aurigemma, J.)
The Dram Act is not excluded from the benefits of this saving statute.
The Motion to Dismiss is, accordingly, denied.