Johnson v. Waterbury Hospital, No. 083776 (Nov. 20, 1990) , 1990 Conn. Super. Ct. 3961 ( 1990 )

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] MEMORANDUM OF DECISION ON PLAINTIFF'S MOTION TO SET ASIDE DISMISSAL The complaint in this action was filed on February 2, 1988. The pleadings were never closed and the case was dismissed from a dormancy list on June 22, 1990. (Practice Book Section 251).

The plaintiff filed a Motion to Set Aside Dismissal on October 19, 1990, and paid the fee on October 22, 1990. The motion is not verified. The plaintiff's attorney filed an CT Page 3962 affidavit on November 13, 1990 in support of the motion.

This court does not have jurisdiction to open or set aside a judgment unless a motion to reopen has been filed within four months, absent a waiver. Practice Book Section 326; Connecticut General Statutes Section 52-212. In this case, there is an objection to the Motion to Set Aside Dismissal.

In Van Mecklenburg v. Pan American World Airways, Inc.,196 Conn. 517, 519 (1985), our Supreme Court held that a failure to pay the fee within the four months resulted in the motion being untimely. This result was accomplished by reading the fee requirement of Connecticut General Statutes Section 52-259c together with the four month filing requirement of Section 326 and Connecticut. General Statutes Section 52-212a.

The holding of Van Mecklenburg at 196 Conn. 519 is controlling in this entirely analogous scenario.

Practice Book Section 377 does not specifically provide that a motion not verified will be returned, just as Connecticut General Statutes Section 52-259c did not expressly provide that a motion not accompanied by a fee will be returned.

The mandatory nature of both requirements are, however, clearly apparent from the language used. [Practice Book Section 377, "Such written motion shall be verified by the oath by the complainant or his attorney. . ." Connecticut. General Statutes Section 52-259c, "[t]here shall be paid to the clerk of the superior court a fee. . .".].

A motion to set aside is thus not properly filled until the fee is paid and verification filed. In this case, the verification, by means of an affidavit, was not filed until November 13, 1990; beyond the four months from date of dismissal.

The Motion to Set Aside Dismissal is denied as the court has no jurisdiction to entertain it.

McWEENY, J.