Migdalia Almodovar v. Joseph Praczukowski (2010)

MEMORARDUM OF DECISION RE MOTION TO DISMISS

The defendant, Joseph Praczukowski challenges the subject matter jurisdiction of this court.   He asserts that at the time this law suit was commenced, by way of a writ, summons and complaint dated February 17, 2010, and delivered to the marshal for service on February 23, 2010, he was a deceased person.

The plaintiff accurately cites the O'Leary v. Waterbury Title Company, 117 Conn. 39 (1933) for the proposition that an action against a defendant who is deceased prior to commencement of a suit is null and void.

Plaintiff opposes this motion to dismiss.   She asserts that the civil action is protected by the language of § 52-599(a), which provides “a cause or right of action shall not be lost or destroyed by the death of any person, but shall survive in favor of or against the executor or administrator of the deceased person.”   The plaintiff argues that survival statute is a remedial statute that should be interpreted liberally and that they should be allowed to substitute as a defendant in this action the executor of the estate of the decedent.   Plaintiff cites to the court the case of Contadini v. David I. DeVito, Executor (State of Francis DeVito), 71 Conn.App. 697 (2002).   In Contadini, the trial court dismissed the original action due to lack of subject matter jurisdiction because of the fact that the defendant was dead of the time of the service of the writ, summons and complaint.   The plaintiff Contadini, thereafter, brought a second action pursuant to the accidental failure of suit statute Conn. Gen.Stat. § 52-592(a) the trial court dismissed the second action based upon the reasoning that since the suit against the deceased person was null and void that there was no legal action that could be saved pursuant to General Statute § 52-592(a).   The Appellate Court reversed the trial court's dismissal.   It interpreted the remedial statutes broadly and held that the first action legally existed when it was brought, despite the fact that the defendant named in that action had died prior to the commencement of the action.   The facts in this case are very similar to the Contadini case, and thus if the plaintiff refiles this suit against the proper defendant, it should fall within the saving ambit of that statute.  Contadini, however, does not sanction the course suggested by the plaintiff-the substituting of the representative of the decedent's estate as a defendant in this action.

The defendant Joseph Praczukowski's motion to dismiss is granted.

Cosgrove, J.

Cosgrove, Emmet L., J.