Heidi Dragonette v. LLC (2010)

MEMORANDUM OF DECISION

FACTS AND PROCEDURAL HISTORY

The plaintiff, Heidi Dragonette, filed a complaint against the defendants, Annual Milford Oyster Festival, Inc. and Maryca Enterprises LLC (Maryca Enterprises) on July 28, 2009 alleging as to each a cause of action in premises liability.   Maryca Enterprises filed a motion to dismiss for lack of subject matter jurisdiction and a memorandum of law in support thereof on March 24, 2010.¹  On April 4, 2010, Annual Milford Oyster Festival, Inc. filed a separate motion to dismiss, which was also accompanied by a memorandum of law.²  Both defendants challenge the plaintiff's standing to bring the present action on the ground that “any interest that plaintiff had in these claims became an interest of her bankruptcy estate when she filed for bankruptcy protection in December of 2007.”

On April 16, 2010, before the court heard oral argument on the defendants' motions to dismiss, the plaintiff moved to substitute as plaintiff Lawrence Dressler, an attorney who had represented her in her bankruptcy action.³  Maryca Enterprises filed a memorandum of law in opposition to the plaintiff's motion on May 6, 2010.   Thereafter, on May 28, 2010, the trustee of the plaintiff's bankruptcy estate filed an appearance as well as its motion to substitute for the plaintiff ⁴ along with a memorandum of law in support thereof.⁵  On June 4, 2010, Maryca Enterprises filed an objection and memorandum of law in opposition to the plaintiff's motion to substitute and to the bankruptcy trustee's motion to substitute.

The court heard oral argument on the bankruptcy trustee's motion at short calendar on June 7, 2010.   Thereafter, on June 22, 2010, the bankruptcy trustee filed a post-argument memorandum of law addressing our Supreme Court's recent decision in Dilieto v. County Obstetrics & Gynecology Group., P.C., 297 Conn. 105, 998 A.2d 730 (2010).   The defendant, Maryca Enterprises filed a post-argument memorandum of law on July 2, 2010.

DISCUSSION

ASubject Matter Jurisdiction

“A motion to dismiss ․ properly attacks the jurisdiction of the court, 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 ․ A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction.”  (Internal quotation marks omitted.)  Beecher v. Mohegan Tribe of Indians of Connecticut, 282 Conn. 130, 134, 918 A.2d 880 (2007).  “The issue of standing implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss.”  (Internal quotation marks omitted.)  Wilcox v. Webster Ins., Inc., 294 Conn. 206, 213, 982 A.2d 1053 (2009);  Practice Book § 10-39(a).

Generally, “once the question of lack of jurisdiction of a court is raised, [it] must be disposed of ․ and the court must fully resolve it before proceeding further with the case.”  (Internal quotation marks omitted.)   Community Collaborative of Bridgeport, Inc. v. Ganim, 241 Conn. 546, 552, 698 A.2d 245 (1997).   Nevertheless, many Superior Court decisions have ruled that a court has limited subject matter jurisdiction to entertain a motion to substitute in the face of a pending motion to dismiss for lack of subject matter jurisdiction in certain circumstances.   See Lupinacci v. Stamford, 48 Conn.Sup. 1, 3, 823 A.2d 456 [32 Conn. L. Rptr. 672] (2002).

Maryca Enterprises argues in its memorandum of law in opposition to the plaintiff's motion that “the motion to substitute cannot be considered or decided until the court rules on the pending motion to dismiss.”   The defendant supports this proposition with the oft-cited rule that:  “Whenever the absence of jurisdiction is brought to the notice of the court or tribunal, cognizance of it must be taken and the matter passed upon before it can move one further step in the cause;  as any movement is necessarily the exercise of jurisdiction.”  (Internal quotation marks omitted.)  Federal Deposit Ins. Corp. v. Peabody, N.E., Inc., 239 Conn. 93, 99, 680 A.2d 1321 (1996).

Despite this general rule, a line of precedent has grown out of the Appellate Court's decision in Federal Deposit Ins. Corp. v. Retirement Management Group, Inc., 31 Conn.App. 80, 81, 623 A.2d 517, cert. denied, 226 Conn. 908, 625 A.2d 1378 (1993), which affirmed the trial court's decision to grant a motion to substitute the plaintiff for the purposes of a deficiency proceeding in a mortgage foreclosure action.   In Federal Deposit Ins. Group. v. Retirement Management Group, Inc., the Appellate Court, Freedman, J., explained that:  “Our rules of practice ․ permit the substitution of parties as the interests of justice require ․ These rules are to be construed so as to alter the harsh and inefficient result that attached to the mispleading of parties at common law ․ General Statutes § 52-109 and Practice Book § [9-20] allow a substituted plaintiff to enter a case ‘[w]hen any action has been commenced in the name of the wrong person as plaintiff.’  ․ Both rules, of necessity, relate back to and correct, retroactively, any defect in a prior pleading concerning the identity of the real party in interest.   In the context of analogous rules of federal civil procedure, it has been observed that ‘[w]here the change is made on the plaintiff's side to supply an indispensible party or to correct a mistake in ascertaining the real party in interest, in order to pursue effectively the original claim, the defendant will rarely be unfairly prejudiced by letting the amendment relate back to the original pleading.’  ․ As long as [the] defendant is fully apprised of a claim arising from specified conduct and has prepared to defend the action, his ability to protect himself will not be prejudicially affected if a new plaintiff is added, and he should not be permitted to invoke a limitations defense ․ Thus, an amendment substituting a new plaintiff [will] relate back if the added plaintiff is the real party in interest ․ An amendment to pleadings will relate back to its filing, at the very least, and back to the beginning of the action under appropriate circumstances ․ We see no reason why our general policy with respect to pleadings should not also apply in the context of the substitution of a plaintiff.”  (Citations omitted;  internal quotation marks omitted.)

Thus, in certain circumstances, decisions of the Superior Court have addressed motions to substitute while motions to dismiss for lack of subject matter jurisdiction were pending before the court.   See, e.g., Grande v. Complete Energy, Inc., Superior Court, judicial district of Hartford, Docket No. CV 09 5028272 (June 10, 2010, Wagner, J.T.R.) [50 Conn. L. Rptr. 60] (granting motion to substitute a representative for the minors during the pendency of a motion to dismiss);  Westside Package Store, LLC v. Zoning Board of Appeals, Superior Court, judicial district of Litchfield, Docket No. CV 10 6001242 (April 20, 2010, Pickard, J.) (49 Conn. L. Rptr. 660, 661) (granting plaintiff's motion to substitute defendant while defendant's motion to dismiss for lack of jurisdiction was pending);  Stanziale v. Skiba, Superior Court, judicial district of Fairfield, Docket No. CV 04 0412495 (August 20, 2008, Arnold, J.) (granting motion to substitute plaintiff while motion to dismiss for lack of subject matter jurisdiction was pending);  Allen Construction, Inc. v. Cabanilla, Superior Court, judicial district of Fairfield, Docket No. CV 00 376419 (June 7, 2001, Rush, J.) (“A prior ruling on the motion to substitute or amend is especially appropriate in instances where the defect is technical in nature”);  Nygren v. Steier, Superior Court, judicial district of Waterbury, Docket No. CV 00 0156706 (January 10, 2001, Doherty, J.) (28 Conn. L. Rptr. 699, 702) (granting plaintiff's motion to substitute bankruptcy trustee while defendant's motion to dismiss for lack of subject matter jurisdiction was pending);  Dilieto v. County Obstetrics & Gynecology Group, P.C., Superior Court, complex litigation docket at Waterbury, Docket No. X02 CV 97 0150435 (January 31, 2000, Sheldon, J.) (26 Conn. L. Rptr. 345) (granting motion to substitute while defendant's motion to dismiss for lack of subject matter jurisdiction was pending), aff'd in part, rev'd on other grounds, 297 Conn. 105, 998 A.2d 730 (2010);  ITT Semiconductors v. Matheson Gas Products, Superior Court, judicial district of Ansonia-Milford, Docket No. CV 89 029553 (October 2, 1991, Maiocco, J.) (6 C.S.C.R. 947) [5 Conn. L. Rptr. 80] (same);  but see, e.g., Giligan v. Atlantic Coast Cable, Superior court, judicial district of Fairfield, Docket No. CV 95 0323793 (February 5, 1998, Maiocco, J.) (21 Conn. L. Rptr. 351, 353) (“the failure to provide sufficient information as to the real plaintiff can be used to differentiate proper and improper application of § 52-109 ․ In this matter, the lack of such vital information may prejudice the defendants in how they approach the case at hand”).

I agree with the reasoning of the majority decisions and I will therefore address the plaintiff's motion to substitute prior to addressing the defendants' motions to dismiss.

B

Motion to Substitute

The defendants' motions to dismiss pending before this court rely on the grounds that “any interest that plaintiff had in these claims became an interest of her bankruptcy estate when she filed for bankruptcy protection in December of 2007.”   The defendants argue that “only the [bankruptcy] trustee has the authority to exercise control over the assets of the bankruptcy estate, and the plaintiff has no standing to pursue these claims.”   Moreover, the defendants maintain that the plaintiff is judicially estopped from bringing this action because the “plaintiff omitted the instant claim from [her] bankruptcy schedules and, after [her] Chapter 7 discharge, sought to resurrect it for her own personal benefit.   Allowing her to do so would violate the integrity of the bankruptcy system and serve as an inducement to other debtors to conceal such claims.”   The bankruptcy trustee's motion seeks to substitute the real party in interest, cure the named plaintiff's lack of standing and thereby confer subject matter jurisdiction on this court.⁶

General Statutes § 52-109 provides:  “When any action has been commenced in the name of the wrong person as plaintiff, the court may, if satisfied that it was so commenced through mistake, and that it is necessary for the determination of the real matter in dispute so to do, allow any other person to be substituted or added as plaintiff.” ⁷  “[W]hen faced with a motion to dismiss and a motion to substitute in response thereto [the court must decide whether] the action under attack (1)[was] commenced through ‘mistake’ and (2) [whether] substitution of the proper plaintiff is ‘necessary for the determination of the real matter in dispute.’  “ Wilson v. Zemba, 49 Conn.Sup. 542, 548-49, 896 A.2d 542 [38 Conn. L. Rptr. 272] (2004).   “Furthermore, it is well established that remedial statutes such as § 52-109 must be liberally construed in favor of those whom the legislature intended to benefit.”  (Internal quotation marks omitted.)  Dilieto v. County Obstetics & Gynecology Group, P.C., supra, 297 Conn. 149.

1

Mistake

“Under § 52-109, substitution is permitted only when the trial court determines that the action was commenced in the name of the wrong plaintiff through mistake, which properly has been interpreted to mean an honest conviction, entertained in good faith and not resulting from the plaintiff's own negligence, that she is the proper person to commence the [action].”  (Internal quotation marks omitted.)  Dilietio v. County Obstetrics & Gynocology Group, P.C., supra, 297 Conn. 151.  “Only if the plaintiffs bear the burden of proving that they acted upon such a conviction in commencing the lawsuit can the plaintiff's motion to substitute be granted.”   Stanziale v. Skiba, Superior Court, judicial district of Fairfield, Docket No. CV 04 0412495 (August 20, 2008, Arnold, J.).

“[M]istakes deemed correctable under the statute have obviously included errors as to who, among the successors to the original plaintiff's claim, actually had standing to assert the claim when the action was commenced ․ [S]ubstitution may properly be ordered to correct a mistake in ascertaining the real party in interest not just an error in the description, spelling or punctuation of a known party's name.”  (Citations omitted;  internal quotation marks omitted.)  Stanziale v. Skiba, supra, Superior Court, Docket No. CV 04 0412495.   Nevertheless, “to prevail on a motion to substitute under § 52-109, a plaintiff must prove that the mistake which led him to misplead in the name of the wrong person did not result from his own failure to exercise reasonable diligence to know the truth.”   Carpinella v. Weather Shield Mfg., Superior Court, judicial district of Waterbury, Docket No. CV 00 0160901 (October 10, 2003, Alvord, J.).

In his memorandum of law, the bankruptcy trustee urges the court to grant his motion to substitute because “[f]irst ․ all of the parties concur that the instant action was commenced in the name of the wrong plaintiff ․ Second, the [plaintiff] has stated through counsel that this action was commenced in the wrong name by mistake ․ Third ․ the trustee's participation in this matter is essential for the court to determine the real matter in dispute.”

In response, Maryca Enterprises counters that the “plaintiff has not sustained [its burden to show that she was mistaken in commencing the present action in her own name].   Plaintiff has not proffered any evidence that she was named as the party in interest in this case by ‘mistake’ but her counsel simply states in her motion that ‘the matter was mistakenly commenced in the wrong plaintiff name.’   Her counsel's blanket assertion notwithstanding, she has failed to make an evidentiary record of facts in support of the claim that her actions were mistaken.   For that reason alone, she may not obtain relief under Practice Book § 9-20 and [General Statutes] § 52-109.” ⁸

In Dilieto v. County Obstetrics & Gynecology Group, P.C., supra, 26 Conn. L. Rptr. 345, the court had to decide whether to grant a motion to substitute in the face of a motion to dismiss for lack of subject matter jurisdiction.   The court addressed, inter alia, whether the plaintiff, who had received a discharge under Chapter 7 of the bankruptcy code, had commenced the lawsuit in her own name rather than in the name of her bankruptcy trustee as a mistake.   The plaintiff had offered testimony that she had “honestly and reasonably believed that her bankruptcy was over” after she and her husband had received a discharge of their scheduled debts.   The court found that the claims presented to it were “contingent [or] unliquidated claims, which should have been so listed and reported in her bankruptcy schedules ․ [h]owever, no such claim was listed in the bankruptcy schedules.”  (Internal quotation marks omitted.)   Thus, the court concluded that “[u]pon receiving the letter and Discharge of Debtor, which [the plaintiff] opened and read to his wife, the [plaintiffs] believed that their bankruptcy was over.   They had filed for bankruptcy to obtain a discharge of the scheduled debts, and by this letter they received formal notification that these debts had been discharged.   In their minds, as in the mind of the average layman with no legal training or personal experience, direct or vicarious with bankruptcy matters, their bankruptcy was over.”

A similar issue was presented to the court in Nygren v. Steier, Superior Court, judicial district of Waterbury, Docket No. CV 00 0156706 (January 10, 2001, Doherty, J.) (28 Conn. L. Rptr. 699).   There, the plaintiff had received a discharge in bankruptcy and thereafter commenced a professional negligence suit against the defendants for a cause of action, that accrued prior to the date on which the plaintiff filed his bankruptcy petition.   The defendants moved to dismiss the plaintiff's complaint for lack of subject matter jurisdiction and the plaintiff moved to substitute the trustee of his bankruptcy trustee as plaintiff.   The court initially granted the plaintiff's motion to substitute, but heard re-argument at the defendants' request.

The court, Doherty, J., determined foremost that it had “subject matter jurisdiction for the limited purpose of deciding the plaintiff's motion to substitute plaintiff.”   The court then went on to employ the two-prong test of § 52-109, considering first whether the plaintiff had commenced the suit in his own name by mistake.   The court found that the plaintiff's testimony indicated that “the reason [the plaintiff] commenced this lawsuit in his name, without informing or naming the bankruptcy trustee, was that he believed he did not have a viable legal cause of action against the defendants.”   The court found that the plaintiff had relied on the advice of his bankruptcy attorney in not placing the cause of action on his bankruptcy schedules because the attorney “advised him ․ [that] it was not a viable cause of action.”   The court concluded that the plaintiff had commenced the action in his own name by mistake because “[t]here is no legal requirement that an individual must seek a second legal opinion in order for his mistake to be ‘an honest conviction, entertained in good faith and not resulting from the plaintiff's own negligence.’ “

The evidentiary record in the present case on the issue of mistake is comparatively lacking to that presented to the court in Dilieto v. County Obstetrics & Gynecological Group, supra, 26 Conn. L. Rptr. 345 and Nygren v. Steier, supra, 28 Conn. L. Rptr. 701.   The plaintiff's bankruptcy trustee here argues that “the debtor has stated through counsel that this action was commenced in the wrong name by mistake.   The statements of the debtor and her attorney ․ clearly support the assertion that the instant action was commenced by mistake.”   The bankruptcy trustee, however, has failed to identify any such statements, nor are such statements present in the evidentiary record in any form.

Without an evidentiary showing that the plaintiff commenced the present action in her own name by mistake, it is impossible for this court to conclude that the plaintiff honestly and reasonably believed that she was the proper plaintiff.   Rather, it is just as probable as Maryca Enterprises argues that the “plaintiff omitted the instant claim from [her] bankruptcy schedules and, after [her] Chapter 7 discharge, sought to resurrect it for her own personal benefit.”   Nevertheless, the court is cognizant that our rules of practice and remedial statutes such as § 52-109 must be construed liberally as the interests of justice require so as “to avoid the harsh and inefficient result that attached to the mispleading of parties at common law.”   Therefore, an evidentiary hearing is needed to address the limited issue of whether the named plaintiff commenced the action in her own name by mistake.

By the Court,

BELLIS, J.

FOOTNOTES

FN1. Maryca Enterprises attached the following exhibits to its motion to dismiss:  (1) a copy of the plaintiff's voluntary Chapter 7 bankruptcy petition;  (2) copies of letters from the Walsh Claim Service, LLC to the plaintiff of September 5, 2007, October 10, 2007, November 10, 2007 and December 5, 2007 regarding the incident that allegedly led to the plaintiff's injuries;  and, (3) a copy of the plaintiff's Chapter 7 bankruptcy discharge of April 1, 2008..  FN1. Maryca Enterprises attached the following exhibits to its motion to dismiss:  (1) a copy of the plaintiff's voluntary Chapter 7 bankruptcy petition;  (2) copies of letters from the Walsh Claim Service, LLC to the plaintiff of September 5, 2007, October 10, 2007, November 10, 2007 and December 5, 2007 regarding the incident that allegedly led to the plaintiff's injuries;  and, (3) a copy of the plaintiff's Chapter 7 bankruptcy discharge of April 1, 2008.

FN2. Annual Milford Oyster Festival, Inc. included the following as exhibits with its motion to dismiss:  (1) a copy of the plaintiff's voluntary Chapter 7 bankruptcy petition;  (2) copies of letters from the Walsh Claim Service, LLC to the plaintiff of September 5, 2007, October 10, 2007, November 10, 2007 and December 5, 2007 regarding the incident that allegedly led to the plaintiff's injuries;  (3) a letter of August 9, 2007 from Annual Milford Oyster Festival Inc.'s insurer, Traveler's Insurance, to the plaintiff requesting a release of her medical records;  and, (4) a copy of the plaintiff's Chapter 7 bankruptcy discharge of April 1, 2008..  FN2. Annual Milford Oyster Festival, Inc. included the following as exhibits with its motion to dismiss:  (1) a copy of the plaintiff's voluntary Chapter 7 bankruptcy petition;  (2) copies of letters from the Walsh Claim Service, LLC to the plaintiff of September 5, 2007, October 10, 2007, November 10, 2007 and December 5, 2007 regarding the incident that allegedly led to the plaintiff's injuries;  (3) a letter of August 9, 2007 from Annual Milford Oyster Festival Inc.'s insurer, Traveler's Insurance, to the plaintiff requesting a release of her medical records;  and, (4) a copy of the plaintiff's Chapter 7 bankruptcy discharge of April 1, 2008.

FN3. The plaintiff's motion states, in relevant part:  “(1) The matter was mistakenly commenced in the wrong plaintiff name;  (2) Heidi Dragonette, filed for bankruptcy after July 31, 2007, the date of accident in the instant matter, [as] such the potential claim/lawsuit is an asset of the bankruptcy estate and should have been brought in the name of the bankruptcy trustee;  (3) The substitution is necessary for the determination of the real matter in dispute;  (4) Attorney Lawrence Dressler, Heidi Dragonette's bankruptcy attorney, has moved to open the bankruptcy estate to include claim/lawsuit arising from the accident of July 31, 2007;  (5) Heidi Dragonette has a legitimate cause of action and has suffered injuries and damages that are compensable.”.  FN3. The plaintiff's motion states, in relevant part:  “(1) The matter was mistakenly commenced in the wrong plaintiff name;  (2) Heidi Dragonette, filed for bankruptcy after July 31, 2007, the date of accident in the instant matter, [as] such the potential claim/lawsuit is an asset of the bankruptcy estate and should have been brought in the name of the bankruptcy trustee;  (3) The substitution is necessary for the determination of the real matter in dispute;  (4) Attorney Lawrence Dressler, Heidi Dragonette's bankruptcy attorney, has moved to open the bankruptcy estate to include claim/lawsuit arising from the accident of July 31, 2007;  (5) Heidi Dragonette has a legitimate cause of action and has suffered injuries and damages that are compensable.”

FN4. The bankruptcy trustee's motion states:  “Pursuant to Practice Book 9-20 and Connecticut General Statutes § 52-109, Ronald I. Chorches (the “Trustee”), trustee of the bankruptcy estate of Heidi Dragonette (the “Debtor”), respectfully moves that he be substituted as Plaintiff in the case at bar in accordance with 11 U.S.C. § 541.   In support of this Motion, the Trustee attaches hereto proof of his appointment in the Bankruptcy Case and a Memorandum of Law.”The bankruptcy trustee, however, failed to attach or submit such proof..  FN4. The bankruptcy trustee's motion states:  “Pursuant to Practice Book 9-20 and Connecticut General Statutes § 52-109, Ronald I. Chorches (the “Trustee”), trustee of the bankruptcy estate of Heidi Dragonette (the “Debtor”), respectfully moves that he be substituted as Plaintiff in the case at bar in accordance with 11 U.S.C. § 541.   In support of this Motion, the Trustee attaches hereto proof of his appointment in the Bankruptcy Case and a Memorandum of Law.”The bankruptcy trustee, however, failed to attach or submit such proof.

FN5. In addition to his motion to substitute and memorandum of law, Ronald I. Chorches, the bankruptcy trustee, filed two objections to the defendants' motions to dismiss;  the first on May 28, 2010, which was unaccompanied by a memorandum of law and, thereafter, on June 2, 2010, which was accompanied by a memorandum of law..  FN5. In addition to his motion to substitute and memorandum of law, Ronald I. Chorches, the bankruptcy trustee, filed two objections to the defendants' motions to dismiss;  the first on May 28, 2010, which was unaccompanied by a memorandum of law and, thereafter, on June 2, 2010, which was accompanied by a memorandum of law.

FN6. It is uncontested that:  “When an individual files for bankruptcy an estate is created which is comprised of all legal or equitable interests of the debtor in property as of the commencement of the case, 11 U.S.C. § 541(a), including all legal causes of action held by the debtor ․ Pursuant to 11 U.S.C. § 541(a)(1) all property of the debtor, including chose in action and pending suits, becomes the property of the bankruptcy estate and is under the exclusive control of the bankruptcy trustee ․ By virtue of 11 U.S.C. § 554(d), this property remains part of the [e]state unless and until the trustee abandons the lawsuit back to the debtor ․ Property of the estate includes causes of action belonging to the debtor which accrued prior to the filing of the bankruptcy petition ․ and a cause of action is part of the estate even if the debtor fails to schedule the claim in his petition ․ Therefore, [a]ctions brought on behalf of a bankruptcy estate must be brought in the name of the trustee as the real party in interest.”  (Citations omitted;  internal quotation marks omitted.)   Bernstein v. Coyne, Superior Court, judicial district of New Haven, Docket No. CV 08 5023063 (June 4, 2009, Zoarski, J.T.R.)..  FN6. It is uncontested that:  “When an individual files for bankruptcy an estate is created which is comprised of all legal or equitable interests of the debtor in property as of the commencement of the case, 11 U.S.C. § 541(a), including all legal causes of action held by the debtor ․ Pursuant to 11 U.S.C. § 541(a)(1) all property of the debtor, including chose in action and pending suits, becomes the property of the bankruptcy estate and is under the exclusive control of the bankruptcy trustee ․ By virtue of 11 U.S.C. § 554(d), this property remains part of the [e]state unless and until the trustee abandons the lawsuit back to the debtor ․ Property of the estate includes causes of action belonging to the debtor which accrued prior to the filing of the bankruptcy petition ․ and a cause of action is part of the estate even if the debtor fails to schedule the claim in his petition ․ Therefore, [a]ctions brought on behalf of a bankruptcy estate must be brought in the name of the trustee as the real party in interest.”  (Citations omitted;  internal quotation marks omitted.)   Bernstein v. Coyne, Superior Court, judicial district of New Haven, Docket No. CV 08 5023063 (June 4, 2009, Zoarski, J.T.R.).

FN7. Practice Book § 9-20, which is almost identical to § 52-109, provides:  “When any action has been commenced in the name of the wrong person as plaintiff, the judicial authority may, if satisfied that it was so commenced through mistake and that it is necessary for the determination of the real matter in dispute so to do, allow any other person to be substituted or added as plaintiff.”.  FN7. Practice Book § 9-20, which is almost identical to § 52-109, provides:  “When any action has been commenced in the name of the wrong person as plaintiff, the judicial authority may, if satisfied that it was so commenced through mistake and that it is necessary for the determination of the real matter in dispute so to do, allow any other person to be substituted or added as plaintiff.”

FN8. In the alternative, Maryca Enterprises urges the court to “grant them the opportunity to obtain further discovery limited to the question of whether the plaintiff was ‘mistaken’ in filing her complaint prior to ruling on the motion to substitute.”.  FN8. In the alternative, Maryca Enterprises urges the court to “grant them the opportunity to obtain further discovery limited to the question of whether the plaintiff was ‘mistaken’ in filing her complaint prior to ruling on the motion to substitute.”

Bellis, Barbara N., J.