Opinion
CV195019843S
01-15-2020
Matvey Sokolovsky v. William Mulholland, Zoning Official et al.
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Knox, Kimberly Ann, J.
MEMORANDUM OF DECISION ON MOTION TO DISMISS (#109)
Knox, J.
The defendants filed a motion to dismiss the plaintiff’s complaint for failure to timely file the action pursuant to General Statutes § 46a-101(e). The plaintiff filed a timely objection. The motion was initially heard at short calendar on September 9, 2019. Thereafter, the Connecticut Commission on Human Rights and Opportunities (CHRO) filed an application for leave to file an amicus brief, which was granted, and the defendants were permitted to file a response. The court subsequently heard from the parties at short calendar on December 16, 2019.
FACTS AND PROCEDURE
The plaintiff, Matvey Sokolovsky, who is self-represented, filed a complaint alleging that the defendants, town of East Lyme, Zoning Official William Mulholland, and First Selectman Mark Nickerson, discriminated against him. The plaintiff previously presented the same claims of discrimination by the defendants in a complaint filed by the plaintiff with the CHRO on September 20, 2017. On November 6, 2018, the CHRO issued a release of jurisdiction to the plaintiff. The CHRO found that the plaintiff’s evidence was insufficient to warrant further investigation, resulting in the release of jurisdiction on November 6, 2018. The release of jurisdiction states: "The Complainant must bring an action in Superior Court within 90 days of receipt of release and within two years of the date of filing the complaint with the Commission unless circumstances tolling the statute of limitations are present."
On January 31, 2019, the plaintiff filed an application for waiver of fees, which the court granted on February 4, 2019. The defendants were subsequently served with the summons and complaint on February 22, 2019. The matter was returned to court on February 26, 2019.
On April 22, 2019, the defendants filed their first motion to dismiss, which the court, Knox, J, denied without prejudice. On July 10, 2019, the defendants filed a second motion to dismiss. The defendants’ second motion to dismiss is accompanied by an affidavit, the plaintiff’s CHRO complaint and the November 6, 2018 release of jurisdiction by the CHRO. The matter was heard at short calendar on September 9, 2019. At the hearing, the plaintiff filed an opposition to the defendants’ second motion to dismiss.
On September 16, 2019, and prior to a decision on the second motion to dismiss, the CHRO filed an application for leave to file an amicus curiae brief, which was granted. On September 26, 2019, the defendants filed an objection to the amicus brief. The defendant requested permission to file a reply to the amicus brief, which was granted. The court heard the matter at short calendar on December 16, 2019.
The plaintiff’s allegations of discrimination can be briefly summarized as follows. The allegations in the complaint are presented in a narrative form. Therefore, the court has carefully considered the statements therein. In his complaint, the plaintiff admits the issues arose as part of a neighborhood dispute. He claims he is treated in a discriminatory manner, that being treated differently than his neighbors, by the defendants. First, the plaintiff alleges that, in 2017, the defendants failed to investigate the plaintiff’s complaint against his neighbors for moving their shed closer to his property, which he believes does not comply with the town of East Lyme’s zoning ordinances. Second, the plaintiff alleges that in May of 2017, Zoning Official William Mulholland sent him a letter regarding a complaint made by the plaintiff’s neighbors about multiple unregistered vehicles on his property in violation of the town of East Lyme’s zoning ordinances. Specifically, the plaintiff alleges that he believes he was "held to a higher standard than [his] neighbors" and that the "neighbors [were] allowed to violate [z]oning rules despite clear evidence of their violation." (Compl., p. 2, 3.) The plaintiff states that the defendants were "biased" against him and that their conduct was "illegal." (Compl., p. 1.) Third, the plaintiff alleges that he has "been denied access to information that [he] [believes] [he] is entitled to access, like looking into situations similar to mine and researching [his] neighbors files; in addition the Zoning Official has made demands that limit [his] rights, like a demand, followed by a threat to take us to court ... This shows the town attitude to me as a lesser person." (Compl., p. 6.) The plaintiff alleges he is entitled to view records pertaining to his neighbor’s residence. These are the same claims of discrimination set forth by the plaintiff against the defendants in the CHRO complaint.
"Our courts have recognized that the submissions of a self-represented litigant are to be construed liberally and interpreted so as to raise the strongest arguments that they suggest ... Nevertheless, this court is not required to maintain an action which on its face is not legally viable at the expense of the rights of others. Although we are mindful of our policy to be solicitous of pro se litigants ... such policy is applicable only when it does not interfere with the rights of other parties. Although our courts allow pro se litigants some latitude, the right of self-representation provides no attendant license not to comply with relevant rules of procedural and substantive law ... As our courts have noted, [f]or justice to be done ... any latitude given to pro se litigants cannot interfere with the rights of other parties, nor can we disregard completely our rules of practice." (Citations omitted; internal quotation marks omitted.) Murray v. Suffield Police Dept., Superior Court, judicial district of Hartford, Docket No. CV-14-5037897-S (March 23, 2017, Elgo, J.), aff’d, 180 Conn.App . 901, 180 A.3d 651 (2018).
In his complaint, the plaintiff refers to proceedings in a civil action involving his wife. See, East Lyme v. Sokolovskaya, Superior Court, judicial district of New London, Docket No. CV-17-6031396-S (January 10, 2018, Frechette, J.). On January 20, 2018, the court entered judgment in favor of the town of East Lyme. Id. The plaintiff, Matvey Sokolovsky was not a party to that action, and his motion to intervene was denied. Id.
DISCUSSION
"[A] motion to dismiss ... properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court." (Internal quotation marks omitted.) Santorso v. Bristol Hospital, 308 Conn. 338, 350, 63 A.3d 940 (2013). "[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). "[A] court lacks discretion to consider the merits of a case over which it is without jurisdiction ... The subject matter jurisdiction requirement may not be waived by any party, and also may be raised by a party, or by the court sua sponte, at any stage of the proceedings ..." (Internal quotation marks omitted.) Keller v. Beckenstein, 305 Conn. 523, 531-32, 46 A.3d 102 (2012).
The defendants argue that the plaintiff’s complaint should be dismissed because it is untimely. Specifically, the defendants argue that the plaintiff obtained a release of jurisdiction on November 6, 2018, and the present action was not commenced until February 22, 2019 and therefore it is barred for failure to comply with the ninety-day time limit of § 46a-101(e). The plaintiff claims in opposition that the present action is timely because he filed an application for waiver of fees on January 31, 2019, which was within the ninety-day statute of limitations. Furthermore, the plaintiff argues that the continuing course of conduct doctrine applies to toll the statute of limitations. For the reasons discussed herein, the court does not find that application for fee waiver is the commencement of the action.
General Statutes § 46a-101, provides "No action may be brought in accordance with section 46a-100 unless the complainant has received a release from the commission in accordance with the provisions of this section ..." The statute further sets forth a time limitation for commencement of a civil action in subsection (e) that provides in relevant part: "Any action brought by the complainant in accordance with section 46a-100 shall be brought not later than ninety days after the date of the receipt of the release from the commission ..."
"As with any issue of statutory interpretation, [the] initial guide is the language of the statute itself." Williams v. Commission on Human Rights & Opportunities, 257 Conn. 258, 267, 777 A.2d 645 (2001). The statute unequivocally provides that a civil action "shall be brought not later than ninety days after the date of the receipt of the release." The plaintiff was on notice of the statutory provision by virtue of the release from the CHRO, dated November 6, 2019, which reiterated in its own words the time requirement as follows: "The Complainant must bring an action in Superior Court within 90 days of receipt of release ..." The plaintiff did not commence this action within the mandatory statutory time period of ninety days.
The present action must be determined under the time limitations set forth in § 46a-101(e), which applies to the amount of time a party has to file an action with the Superior Court pursuant to a release of jurisdiction by the CHRO. Our Appellate Court has upheld dismissals of a complaint brought outside of the mandatory ninety-day time limit of § 46a-101(e). See Sempey v. Stamford Hospital, 180 Conn.App. 605, 616 n.8, 184 A.3d 761 (2018). In Sempey, the Appellate Court upheld the trial court’s dismissal of a complaint brought outside of § 46a-101(e), regardless of whether § 46a-101(e) was jurisdictional. See also, Mosby v. Board of Education, supra, 187 Conn.App. 771, 775 n.5, 203 A.3d 694 (2017), cert. denied. 331 Conn. 917, 204 A.3d 1160 (2019) ("[b]ecause the plaintiff presents no argument as to whether the time limit of § 46a-101(e) is either mandatory or jurisdictional and presents no claim of waiver, consent, or equitable tolling ... the court properly dismissed ... the [plaintiff’s] claim regardless of whether the time limit is jurisdictional"); see also Townsend v. State, Superior Court, judicial district of New Haven, Docket No. CV-19-5044984-S (August 23, 2019, Wilson, J.) (holding that "regardless of whether the time limit is jurisdictional, the plaintiff’s complaint is subject to dismissal because the action was not commenced within ninety days of receiving the releases of jurisdiction").
There appears to be a split of authority on the issue of whether the time limitation in § 46a-101(e) is jurisdictional. A majority of Superior Courts recognize that a plaintiff’s failure to comply with the time limitation in § 46a-101(e) deprives the court of subject matter jurisdiction. See, e.g., Roma v. Urgent Care of Brookfield, LLC, Superior Court, judicial district of Danbury, Docket No. CV-12-6010727-S (January 27, 2014, Doherty, J.); Spignolio v. Stark Carpet Corp., Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-13-6019388-S (December 19, 2013, Truglia, Jr., J.); Lloyd v. Connection, Inc., Superior Court, judicial district of New Haven, Docket No. CV-11-6023491-S (December 21, 2011, Young, J.); Burke v. Aniskovich, Superior Court, judicial district of Fairfield, Docket No. CV-07-4020201-S (August 3, 2007, Gilardi, J.). For the reasons set forth above, the time limitation is clear and the court elects to follow the majority position.
Even the minority of Superior Court judges that have found that the court is not deprived of subject matter jurisdiction for failure to comply with § 46a-101(e) have still dismissed the plaintiff’s complaint for falling outside of the mandatory ninety-day time limitation. See, e.g., Sirica v. Connecticut Water Co., Superior Court, judicial district of Waterbury, Docket No. CV-14-6024124-S (February 13, 2015, Roraback, J.) (59 Conn.L.Rptr. 735, 737); Scott v. State Department of Transportation, Superior Court, judicial district of Hartford, Docket No. CV-15-6060375-S (June 13, 2016, Huddleston, J.) (62 Conn.L.Rptr. 637, 641).
In the present case, this court elects to adopt the prevailing position among the Superior Courts and concludes that the plaintiff’s failure to meet the time limitation of § 46a-101(e) requires dismissal. The CHRO’s release of jurisdiction is dated November 6, 2018, meaning, the plaintiff had ninety days from that date to bring his complaint to the Superior Court, or until February 4, 2019. Here, the return of service indicates that the defendants were served with a writ, summons, and complaint on February 22, 2019. It is well established that "[i]n Connecticut, an action is commenced when the writ, summons and complaint have been served upon the defendant." Rocco v. Garrison, 268 Conn. 541, 553, 848 A.2d 352 (2004). The plaintiff commenced this action on February 22, 2019, the date the defendants were served, not on January 31, 2019, when he filed an application for waiver of fees. Therefore, the action was brought more than ninety days after the CHRO’s release of jurisdiction. Accordingly, the plaintiff’s complaint was untimely pursuant to the mandatory ninety-day time limitation in § 46a-101(e).
Even if the court extends the ninety days due to the application of the fee waiver, by four days, the ninety-day period lapsed on February 8, 2019.
Moreover, the plaintiff argues in opposition that the statute of limitations period should be tolled because of the continuing course of conduct doctrine. "The continuing course of conduct doctrine reflects the policy that, during an ongoing relationship, lawsuits are premature because specific tortious acts or omissions may be difficult to identify and may yet be remedied." Macellaio v. Newington Police Department, 145 Conn.App. 426, 434, 75 A.3d 78 (2013). The plaintiff, however, has failed to plead the continuing course of conduct doctrine in his complaint. See Beckenstein Enterprises-Prestige Park, LLC v. Keller, 115 Conn.App. 680, 688, 974 A.2d 764, 770 (2009) ("the continuing course of conduct doctrine is a matter that must be pleaded in avoidance of a statute of limitations special defense").
In its amicus curiae brief, the CHRO relies on Williams v. Commission on Human Rights & Opportunities, supra, 257 Conn. 270, arguing that statutes governing discrimination claims are not subject matter jurisdictional. In Williams v. Commission on Human Rights & Opportunities, supra, 257 Conn. 270, the Supreme Court held that the 180-day time limit to bring a complaint with the CHRO, pursuant to General Statutes § 46a-82(e), was not subject matter jurisdictional, but instead operated as a statute of limitations restriction, which was subject to equitable tolling, waiver, and consent. Here, the defendants argue that the policy considerations set forth in Williams do not apply to the commencement of a civil action after a release of jurisdiction by the CHRO. The court agrees.
General Statutes § 46a-82(e) provides in relevant part, "Any employer whose employees, or any of them, refuse or threaten to refuse to comply with the provisions of section 46a-60 or 46a-81c may file with the commission a written complaint under oath asking for assistance by conciliation or other remedial action ..." (Emphasis added.)
The statute at issue in Williams, § 46a-82(e), requires a claimant alleging employment discrimination to file a complaint with the CHRO within 180 days. The court in Williams found that the policy considerations of § 46a-82(e) weighed against concluding that the time limitation was subject matter jurisdictional, as it was the first step for a plaintiff to begin the administrative process in the CHRO. The court stated that "[i]nterpreting [§ 46a-82(e)] as subject matter jurisdictional, however, would necessarily preclude consideration of such factors by either the commission or a court." Our Appellate Court has upheld a dismissal for failure to comply with the time limitation of § 46a-101(e), without determining whether the trial court is deprived of subject matter jurisdiction. See Mosby v. Board of Education, supra, 187 Conn.App. 775. Here, the plaintiff in this case had the ability to have his case reviewed by the CHRO. Therefore, the court does not need to reach this issue as the court previously concluded that the plaintiff failed to file his action within the mandatory ninety-day time limitation under § 46a-101(e).
CONCLUSION
For the foregoing reasons, the defendants’ motion to dismiss is GRANTED.