Andrew Vanase et al. v. Joseph Gagnon, Administrator (2011)

MEMORANDUM OF DECISION RE MOTION TO DISMISS (NO. 111)

The defendant, Joseph Gagnon, argues that this action brought by the plaintiffs, Andrew and Lois Vanase, should be dismissed because he is deceased, because he was not the executor of his wife's estate when this action was commenced, and finally, because he was not properly served with process.

This action was commenced against Joseph Gagnon in his capacity as executor of the estate of Lucienne Gagnon.   This is proper pursuant to § 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.”   Joseph Gagnon died on October 17, 2010, and this action commenced by way of a writ, summons and complaint dated July 7, 2010.   Thus, the defendant was not deceased when this action commenced.

Nevertheless, the court agrees that the defendant is entitled to dismissal.   It is well established that “[t]he grounds which may be 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.”  Zizka v. Water Pollution Control Authority, 195 Conn. 682, 687, 490 A.2d 509 (1985), citing Practice Book § 143,which is now § 10–31.

Here, the defendant demonstrated that he was not the executor of the estate when this action was commenced, as her estate was only open from June 8, 2010 until June 14, 2010.   Furthermore, he demonstrated that he was not residing at 45 Pine Street in Norwich, Connecticut on or about July 9, 2010, when he was allegedly served with process at that address.   Rather, he was residing at 235 Lestertown Road in Groton, Connecticut.   These representations are uncontradicted by the plaintiffs.

In dismissing this action, however, the court takes judicial notice of Feraco v. Gagnon, Docket No. CV 08 5007655, pending in this judicial district.   In that negligence action, the plaintiff similarly seeks damages against Lucienne Gagnon as the result of an automobile accident.   By her third amended complaint, the plaintiff alleges that Attorney George L. Kennedy is the executor of the estate of Lucienne Gagnon.

For all of the foregoing reasons, the defendant's motion is granted.

Cosgrove, J.

Cosgrove, Emmet L., J.