PHILIP AARON v. NINA MATTIKOW.

2004 Ct. Sup. 17083
No. CV 03 0194024 SConnecticut Superior Court, Judicial District of Stamford-Norwalk at Stamford
November 19, 2004

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

MEMORANDUM OF DECISION ON DEFENDANTS’ MOTION TO DISMISS
WILSON, JUDGE.

On March 4, 2003 the plaintiff, Philip Irwin Aaron (“plaintiff”) filed a one-count complaint against Nina J. Mattikow also known as Nina Joan Mattikow and Alfred H. Mattikow and Washington Mutual Bank, PA (“defendants”).

On May 19, 2003 the plaintiff moved to amend his complaint which motion was granted. On May 19, 1993 the plaintiff filed a one-count amended complaint and therein he alleged a fraudulent conveyance per General Statutes § 52-552e(a)(1), relating to a transfer of property on May 17, 1991 between the defendants, Alfred Mattikow and Nina J. Mattikow a/k/a Nina Joan Mattikow.

The defendants, Nina J. Mattikow a/k/a Nina Joan Mattikow and Alfred H. Mattikow have moved to dismiss the amended complaint on grounds that the court lacks subject matter jurisdiction because § 52-552e was not enacted until October 1, 1991, prior to the alleged fraudulent conveyance. Defendants argue that “[b]ecause Conn. Gen. Stat. § 52-552e
was not enacted until October 1, 1991, the plaintiff fails to state a claim as a matter of law.” (Defendants’ Motion to Dismiss #106, filed May 13, 2004).

“A motion to dismiss shall be used to assert lack of jurisdiction over the subject matter, 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); Kizis v. Morse Diesel International, Inc., 260 Conn. 46, 51, 794 A.2d 498 (2002). “A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction.” (Internal quotation marks omitted); Lagassey v. State, 268 Conn. 723, 736, 846 A.2d 831 (2004). “In ruling on a motion to dismiss the 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.” (Internal quotation marks omitted.) Ganim v. Smith Wesson Corp.
CT Page 17084 258 Conn. 313, 326, 780 A.2d 98 (2001).

Most notedly, a motion to dismiss does not test the sufficiency of a cause of action and should not be confused with a motion to strike. Egri v. Foisie, 83 Conn.App. 243, 248; 848 A.2d 1266 (2004). A motion to dismiss “should not be granted on other than jurisdictional grounds.”Id. As the Connecticut Supreme Court has explained: “A motion to dismiss is not a proper vehicle for an attack on the sufficiency of a pleading . . . Here it was used to perform, in effect, the function of a [motion to strike] . . . This was improper, and on this ground . . . the court should have denied the motion. Especially is this so, since the rule of court . . . granting a right to plead over after [the motion to strike] would not apply to [a] motion to dismiss.” (Citations omitted) Egri, supa, at 248.

“The distinction between the motion to dismiss and the motion to strike is not merely semantic. If a motion to dismiss is granted, the case is terminated, save for an appeal from that ruling. The granting of a motion to strike, however, ordinarily is not a final judgment because our rules of practice afford a party a right to amend deficient pleadings.” Egri, supra at 249. The critical distinction between a motion to dismiss and a motion to strike implicates a fundamental policy consideration in this state. Id. Connecticut favors “a policy preference to bring about a trial on the merits of a dispute whenever possible and to secure for the litigant his or her day in court.” Coppola v. Coppola, 243 Conn. 657, 665, 707 A.2d 281 (1998); Egri v. Foisie, supra at 249. Connecticut “practice does not favor the termination of proceedings without a determination of the merits of the controversy where that can be brought about with due regard to necessary rules of procedure. Greco v. Keenan, 115 Conn. 704, 705, 161 A.100 [1932].” Johnson v. Zoning Board of Appeals, 166 Conn. 102, 111, 347 A.2d 53 (1974); Egri v. Foisie, supra at 250; see Andover Ltd Partnership I v. Board of Tax Review, 232 Conn. 392, 400, 655 A.2d 759
(1995). (Claim of lack of subject matter jurisdiction). For that reason, “[a] trial court should make every effort to adjudicate the substantive controversy before it, and, where practicable, should decide a procedural issue so as not to preclude hearing the merits of an appeal.” Killingly v. Connecticut Siting Council, 220 Conn. 516, 522, 600 A.2d 752 (1991) Egri v. Foisie, supra at 250.

In the present case the plaintiff has filed an amended complaint alleging a May 17, 1991 fraudulent conveyance between the defendants. The plaintiff pleads under General Statutes § 52-552e(a)(1). The defendants argue that because § 52-552e(a)(1) was not enacted until October 1, 1991, the plaintiff has “failed to state a claim” (Defendant’s Motion to Dismiss # 106, filed May 13, 2004) (Emphasis added.) “Jurisdiction of the CT Page 17085 subject matter is the power [of the court] to hear and determine cases of the general class to which the proceedings in question belong.” (Internal quotation marks omitted.) Southern New England Telephone Co. v. Dept. of Public Utility Control, 261 Conn. 1, 21, 803 A.2d 879 (2003).

This court clearly has the jurisdiction and power to hear common law fraudulent conveyance actions and fraudulent conveyance actions brought pursuant to General Statutes § 52-557e(a)(1). The defendants’ argument clearly goes to the legal sufficiency of the plaintiff’s fraudulent conveyance action and, as such, the proper vehicle for an attack on the sufficiency of the plaintiff’s pleading should have been a motion to strike.

Accordingly, this court therefore concludes that the plaintiff’s complaint is within the court’s subject matter jurisdiction, albeit subject to a motion to strike for failure to state a legally sufficient claim, and thus, defendants’ motion to dismiss is hereby denied.

WILSON, J. CT Page 17086