O G Ind. v. Beacon Falls P. Z. Com., No. Cv95-0051037s (Jul. 7, 1997)

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] Memorandum Filed July 7, 1997 Before the court is a motion to dismiss filed by the defendant, Town of Beacon Falls Planning and Zoning Commission, on the ground that the administrative appeal filed by the plaintiff, OG Industries, involves the identical issues of a subsequent appeal between the same parties, OG Industries v.Beacon Falls, Docket No. 0052773.

The prior pending action rule states "that when two separate lawsuits are virtually alike the second action is amenable to dismissal by the court." (Internal quotation marks omitted.) Halpern v. Board of Education,196 Conn. 647, 652, 495 A.2d 264 (1985). Although "the prior pending action rule does not truly implicate the subject CT Page 12445 matter jurisdiction of the court . . . the motion to dismiss [is] the proper device by which to request that the trial court dismiss the second action." (Citations omitted.) Id., 652 n. 4. However, the trial court "does not have the right to raise, sua sponte, the prior pending action rule when the moving party has not done so." Conti v. Murphy,23 Conn. App. 174, 178, 579 A.2d 576 (1990).

In this case, Docket No. 0051037, the administrative appeal was filed on June 30, 1995. The subsequent administrative appeal, OG Industries v.Beacon Falls, Docket No. 0052773, was then filed on December 13, 1995. The court cannot dismiss a case based on the prior pending action doctrine because asubsequent lawsuit between the same parties over the identical issues is later filed. The court hereby denies the motion to dismiss.

RIPLEY, J.