Ronald F. Bozelko v. Michael Milici (2012)

MEMORANDUM OF DECISION RE MOTION TO DISMISS (No. 116)

The Motion to Dismiss now before the Court claims that the Court lacks subject matter jurisdiction over the plaintiff's Complaint because of lack of standing.   Although the written Motion asserts lack of standing as to each of the seven counts set forth in the Complaint, the defendant at argument conceded standing as to Counts Two, Three, Four, Five, and Six and claimed lack of standing only as to Counts One and Seven.   Only the disputed counts are addressed here.

Count One.

The Complaint, filed by a self-represented party, does not explicitly state the causes of action asserted in any of its counts.   Read broadly in favor of the plaintiff, Count One asserts that the defendant, Michael Milici, fraudulently obtained summary judgment in a separate action, Bozelko v. D'Albero, No. CV06–5009158 (N.H.J.D.) (Bozelko I ).

The file in Bozelko I reveals that in 2006, the plaintiff, Ronald F. Bozelko, sued a number of defendants, including Milici, for fraud assertedly arising out of the purchase of real property subject to tax liens.   On August 25, 2008, the Court (Lager, J.) granted Milici's motion for summary judgment against Bozelko.   That motion was supported by an affidavit signed by Milici on June 30, 2008.   Subsequently, on June 29, 2009, the Court (Zoarski, J.) granted Bozelko's motion to substitute Edward Jacobs, the executor of the estate of Antonina Cap, as plaintiff in Bozelko I. Bozelko I remains an active file with respect to other defendants.

Milici claims that, given the Court's order to substitute Jacobs as the plaintiff in Bozelko I, Bozelko lacks the necessary personal standing to assert fraud in the obtaining of summary judgment against him in that case.   Although, as Bozelko points out, the order granting summary judgment against him in Bozelko I predates the order substituting Jacobs as the plaintiff in that case, Milici's analysis is correct.

If Bozelko had claimed fraud in Milici's obtaining of summary judgment in Bozelko I at any time between the granting of the summary judgment motion and the substitution of Jacobs as the plaintiff in that case, he would plainly have had standing to make that claim, although the obvious procedural vehicle for such a claim would be a motion, filed in Bozelko I, to set aside the judgment due to fraud.  Kenworthy v. Kenworthy, 180 Conn. 129, 131, 429 A.2d 837 (1980).

Once Jacobs was substituted as the plaintiff in Bozelko I, however, the situation changed.   As our Supreme Court has recently explained,

[O]nce such a determination is made ․ the substituted party is let in to carry on a pending suit, and is not regarded as commencing a new one.   After he is substituted he is ․ treated and regarded for most purposes just as if he had commenced the suit originally ․ [A]ll things done in the case ․ remain for the benefit of the plaintiff who succeeds him, as if done by and for him originally and just as if no change of parties had been made.

DiLieto v. County Obstetrics & Gynecology Group, P.C., 297 Conn. 105, 152, 998 A.2d 730 (2010).  (Internal quotation marks and citation omitted.)

Although the language just quoted refers to pre-substitution developments in the case favorable to the original plaintiff, the same is true for pre-substitution developments adverse to the original plaintiff.   In either case, “[a] successor takes over without any other change in the status of the case ․ Any other approach would make a shambles of litigation;  a party could sell its interest or change its internal structure (as partnerships do frequently) and require the court to start the case from scratch.”  Brook, Weiner, Sered, Kreger & Weinberg v. Coreq, Inc., 53 F.3d 851, 852 (7th Cir.1995).   Consequently, when Jacobs was substituted as a plaintiff in Bozelko I, he took the case as he found it and stepped into the shoes of the original plaintiff.   The only person who has standing to claim damages resulting from the granting of the assertedly fraudulent motion for summary judgment in Bozelko I is Jacobs.

Given the clear law governing the substitution of parties, Bozelko's argument that the pre-substitution summary judgment was entered against him is beside the point.   While he is correct that judgment entered against him, it entered against him in his capacity as plaintiff.   If the summary judgment were, hypothetically, to be set aside, the plaintiff's original case against Milici would continue, but with Jacobs—not Bozelko—as the plaintiff.   Any damages owed to the plaintiff in that case (the only damages that Bozelko could claim in Count One) would go to Jacobs, not Bozelko.

For these reasons, Bozelko lacks the necessary standing to pursue Count One.

Count Seven.

Count Seven need not detain us long, given the limited nature of the attack now before the Court.   Count Seven claims fraud in an alleged interference with Bozelko's agreement to purchase real property subject to tax liens.   Although this claim may well be subject to attacks based on stare decisis or the prior pending action doctrine, neither of those doctrines is invoked by the Motion now before the Court.   The only question now before the Court is whether Bozelko has standing to make the claim asserted.   Read broadly in favor of the plaintiff, Count Seven claims that Bozelko has been injured by Milici's asserted fraud.   Bozelko plainly has standing to make this claim.   Although it may well be that the damages claimed in Count Seven are so closely related to the damages claimed in Bozelko I (or perhaps other cases) that Count Seven will eventually have to be dismissed, that determination cannot be made here.

Conclusion.

The Motion to Dismiss is granted as to Count One of the Complaint.   It is otherwise denied.

Jon C. Blue

Judge of the Superior Court.

Blue, Jon C., J.