October 25, 2018
to recover damages for, inter alia, the defendant's
alleged discrimination, and for other relief, brought to the
Superior Court in the judicial district of Stamford, where
the court, Lee, J., granted the defendant's
motion to dismiss and rendered judgment thereon, from which
the plaintiff appealed to this court. Affirmed.
Mosby, self-represented, the appellant (plaintiff).
Jeffry Spahr, for the appellee (defendant).
DiPentima, C. J., and Elgo and Harper, Js.
self-represented plaintiff, John Mosby, appeals from the
judgment of the trial court dismissing his action against the
defendant, the Board of Education of the City of Norwalk,
alleging discrimination in violation of General Statutes
§§ 46a-58, 46a-64 and 46a-82, and retaliation in
violation of General Statutes § 46a-60. On appeal, the
plaintiff claims that the court improperly dismissed his
complaint as untimely. We affirm the judgment of the trial
following facts and procedural history are relevant to this
appeal. On February 18, 2016, the plaintiff received a
release of jurisdiction from the Commission on HumanRights
and Opportunities (commission), with which he had filed a
complaint. On May 27, 2016, the plaintiff delivered the
process to be served to Constable Ernie Dumas, who then
served the defendant on May 31, 2016. The plaintiff's
complaint was returned to the court on June 13, 2016. On July
8, 2016, the defendant filed a motion to dismiss the
complaint, arguing that the plaintiff had failed to commence
his action within ninety days of receiving the release of
jurisdiction from the commission as required by General
Statutes § 46a-101 (e). By order dated November 8, 2016,
the court granted the defendant's motion to dismiss. From
that judgment, the plaintiff now appeals.
addressing the plaintiff's claims on appeal, we address
the applicable standard of review, which is well settled. A
motion to dismiss tests, inter alia, whether, on the face of
the record, the court is without jurisdiction. . . . [O]ur
review of the court's ultimate legal conclusion and
resulting [determination] of the motion to dismiss will be de
novo. . . . When a . . . court decides a . . . question
raised by a pretrial motion to dismiss, 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. . . . The motion to dismiss .
. . admits all facts which are well pleaded, invokes the
existing record and must be decided upon that
alone.'' (Internal quotation marks omitted.)
Bennett v. New Milford Hospital, Inc., 300 Conn. 1,
10-11, 12 A.3d 865 (2011).
appeal, the plaintiff argues that his action was commenced in
a timely manner. Additionally, the plaintiff indicates that
he believes his action falls within the remedial savings
statute, General Statutes § 52-593a, which would render
his action timely commenced if process had been delivered to
the constable prior to the expiration of the statute of
limitations and served within thirty days. The defendant
disagrees, arguing that the commencement of an action under
Connecticut law occurs with the service of the writ upon the
defendant and that the defendant was served after the
expiration of the statute of limitations. The defendant also
argues that the remedial savings statute does not apply to
the plaintiff's case because the plaintiff delivered the
service to the constable after the expiration of the statute
of limitations. We agree with the defendant.
to General Statutes §§ 46a-100 and 46a-101 (e),
plaintiff had ninety days from the date in which he received
the release of jurisdiction from the commission to commence
his action in the Superior Court. The plaintiff received the
release of jurisdiction from the commission on February 18,
2016. The plaintiff, therefore, was required to commence his
action by May 18, 2016. In his brief, the plaintiff indicates
that his action was filed and served on May 9, 2016, and it
was, thus, commenced in a timely manner. Although the
plaintiff's complaint is dated May 9, 2016, and the
summons was signed by a clerk of court on May 9, 2016, the
record indicates that neither was the action filed nor was
the defendant served on May 9, 2016.
well established that, in Connecticut, ‘‘an
action is commenced not when the writ is returned but when it
is served upon the defendant.'' (Internal quotation
marks omitted.) Rocco v. Garrison, 268 Conn. 541,
549, 848 A.2d 352 (2004); see General Statutes
§ 52-45a. The return of service indicates that
Constable Dumas served the defendant on May 31, 2016.
Accordingly, the plaintiff commenced his action on May 31,
2016, after the expiration of the statute of limitations.
plaintiff is correct in that, pursuant to the remedial
savings statute, his action would not be lost if he had
delivered the process to be served to Constable Dumas by May
18, 2016, ninety days from the date he received the release
of jurisdiction from the commission. See General
Statutes § 52-593a. In his affidavit, however, Constable
Dumas averred that he received the summons and complaint from
the plaintiff on May 27, 2016. As such, the plaintiff
delivered the process to Constable Dumas after the expiration
of the statute of limitations, ...