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BODELL v. SCHMIDT, No. CV98 035 16 64 S (Feb. 1, 1999)
SKOLNICK, J.
The plaintiff, Brian Bodell, filed a two-count revised complaint against the defendant, Robert Schmidt, on May 14, 1998. The plaintiff alleges that on or about July 14, 1997, the defendant pulled his motor vehicle out from a stop sign on Judges Hollow Road in Fairfield, Connecticut and collided with the plaintiff's motor vehicle, injuring the plaintiff. On August 5, 1998, Schmidt filed an apportionment complaint against Christine Taylor, alleging that Taylor, who owned the property on the north side of the subject stop sign, had allowed an overgrowth of trees, bushes and foliage to obscure the view of stopped motorists.
The return date of the original complaint was March 31, 1998.
According to the sheriff's return, the apportionment complaint was served on July 30, 1998.
Taylor moves to strike the apportionment complaint on the ground that it was served beyond one hundred twenty days from the return date of the original complaint as required pursuant to General Statutes § 52-102b(a). Schmidt filed a memorandum in opposition to the motion to strike the apportionment complaint, arguing that the one hundred twenty day period has been more liberally construed simply as a four month rule, and therefore the apportionment complaint is timely.
General Statutes § 52-102b(a) provides in pertinent part: "Any . . . apportionment complaint, shall be served within one hundred twenty days of the return date specified in the plaintiff's original complaint."
Schmidt's argument in opposition to the motion to strike his apportionment complaint is based on Hill v. Pathmark Stores Inc., Superior Court, judicial district of Waterbury, Docket No. 129120 (February 11, 1997, Gill, J.) ( 19 Conn. L. Rptr. 108). In Hill, however, the court granted the motion to strike the apportionment complaint on the same ground advanced by Taylor here. Id., 109. As a statutorily enacted period of CT Page 1124 limitation, the one hundred twenty day period from the filing of the original complaint for filing the apportionment complaint has been strictly applied. See McDuff v. Tamborlane, Superior Court, judicial district of New London at New London, Docket No. 540767 (January 6, 1998, Martin, J.); Winiarski v. Hall, Superior Court, judicial district of Hartford/New Britain at Hartford, Docket No. 566277 (December 19, 1997, Wagner, J.) ( 21 Conn. L. Rptr. 514);Witkin v. Schettino, Superior Court, judicial district of Stamford/Norwalk at Stamford, Docket No. 149015 (April 1, 1997, D'Andrea, J.) ( 19 Conn. L. Rptr. 226); St. Paul Fire Marine Ins. v. Genesee Management, Inc., Superior Court, judicial district of Danbury, Docket No. 322290 (June 4, 1996, Leheny, J.); Stroud v. Pfeffer, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. 324804 (April 1, 1996, Ballen, J.) ( 16 Conn. L. Rptr. 403).
Perhaps Schmidt's argument is based upon a footnote inHill, which noted that since the original return date was November 7, 1995, the defendant would had to have served the apportionment complaint by March 7, 1996. This court notes that March 7, 1996 falls one hundred twenty-one days after November 7, 1995, and can only speculate as to whether the Hill court failed to consider in its calculation that February of 1996 had twenty-nine days. Regardless, the Hill court did not even intimate that the one hundred twenty day period in § 52-102b(a) CT Page 1125 could be liberally construed as a "four month rule."
The parties here do not dispute the fact that July 30, 1998, falls one hundred twenty-one days after March 31, 1998. Schmidt's argument that the one hundred twenty day period in § 52-102b(a) is to be interpreted as a four month rule is not supported by case law. Therefore, Taylor's motion to strike the apportionment complaint is granted.
SKOLNICK, J.
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