Machinery Cr. Co. v. Major Mac. Corp., No. Cv 92 0519218s (Aug. 19, 1993)

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] MEMORANDUM OF DECISION ON MOTION TO DISMISS AND REQUEST FOR LEAVE TO AMEND COMPLAINT The complaint in this action seeks to enforce a judgment which was entered by the Supreme Court of the State of New York against the defendant Major Machinery Corporation. The defendant has moved to dismiss on the ground that the Supreme Court of New York lacked jurisdiction over it when the judgment was entered. The defendant is a Connecticut corporation and was properly served with the complaint in this action.

A motion to dismiss is the appropriate vehicle for challenging the jurisdiction of the court. Practice Book 142. The grounds which are properly asserted in a motion to dismiss are: 1) lack of jurisdiction over the subject matter; 2) lack of jurisdiction over the person; 3) improper venue; 4) insufficiency of process; and 5) insufficiency of service of process. Practice Book 143. The defendant asserts none of those grounds here.

In Zizka v. Water Pollution Control Authority,195 Conn. 682, 687, 490 A.2d 509 (1985) the court held that res judicata with respect to a jurisdictional issue did not itself raise a jurisdictional issue, and could not be asserted in a motion to dismiss. The Court stated that res judicata should have been raised in a special defense. Similarly, in this case the alleged invalidity of the foreign judgment due to the lack of jurisdiction of the New York Supreme Court does not itself raise a jurisdictional issue. Rather, it raises a defense to the action not apparent on the face of the complaint which sould [should] be raised by special defense. CT Page 7541

The plaintiff has taken the unusual procedure step of requesting to amend the complaint at the same time it opposes the Motion to Dismiss. The defendant has filed a supplemental memorandum in which it has not objected to the Request to Amend. It does not appear that the amendment will cause unreasonable delay or unfairness to the defendant.

For the foregoing reasons the Motion to Dismiss is denied and the Motion to Amend is granted.

Aurigemma, J.