Opinion
No. CV 07-5010481-S
November 26, 2008
MEMORANDUM OF DECISION ON MOTION TO DISMISS
Defendant filed this motion to dismiss this wrongful death action on June 20, 2008, on the ground that this action was started by the "Estate of Shamaia Smith" which is not a person and unable to sue or be sued, and therefore there is no jurisdiction in this Court.
The defendant cites a number of instances in which the plaintiff is referred to as the "Estate of Shamaia Smith" instead of Regina Canty, Administratrix of the Estate, such as the Application for Pre-judgment Remedy, the summons, several of the pleadings and several case captions.
However, in the Application for Ex Parte Injunction, it is clearly stated that "the plaintiff is the Estate of Shamaia L. Smith acting by and through Regina Canty, the Administratrix of said estate."
Attached to this application is a document entitled "oath" referring to a statement by Regina Canty . . . Administratrix of the estate of Shamaia L. Smith as appointed by the Court of Probate, District of East Hartford . . .
The summons itself refers to the Estate of Shamaia Smith c/o Regina Canty.
The first sentence of the complaint dated May 4, 2007 states that the East Hartford Probate Court appointed the plaintiff Administratrix of Shamaia L. Smith's Estate and the plaintiff is duly qualified as such Administratrix and is now acting as such.
An affidavit dated May 4, 2007 states "I am the Administratrix of the Estate of Shamaia L. Smith" and is signed and sworn to by Regina Canty.
In this Court's view, there is no jurisdictional defect because the complaint, as ineptly titled as it was, was sufficient to advise this Court and the defendant that the plaintiff was in fact Regina Canty, Administratrix of the Estate of Shamaia L. Smith. References in the complaint solely to the decedent or to the "Estate" were clerical errors, and do not impact on the jurisdiction of this Court.
CPB § 8-1 "Mesue Process" requires "Mesue Process in civil actions should be a writ of summons or attachment, describing the parties . . ." (Emphasis added.) In this case, the plaintiff has been adequately described.
The defendant relies primarily on cases dismissing actions involving deceased defendants, in which a proper fiduciary had not been named or served.
Unlike many of the cases cited by defendants, in which jurisdiction over defendants were involved or the very existence of the fiduciary named as a party was not clear as of the time the action was commenced, a fair reading of the summons and complaint reveals no uncertainty as to the plaintiff in this case. The proper plaintiff, Regina Canty, Administratrix of the Estate of James Olsen has been identified in a number of pleadings. The other references to the plaintiff as the "Estate" were sloppy references to the real plaintiff.
The broad policies set forth in Practice Book § 9-19 and 9-20 favor the saving of actions where there has been mistakes in the naming of a party plaintiff. This policy has been supported in many decisions. Estate of James Olsen v. Circa Builders, Inc., Superior Court Judicial District of Hartford No. CV01-810306 31 Conn. L. Rptr. No. 18 (May 13, 2002, Wagner, J.); Estate of Richard Bakula et al. v Herman, 13 CLT 14 (April 6, 1987 Aronson, J.); Vasel v. Vasel, jud. dist. Hartford No. CV 950556058, 17 Conn. L. Rptr. 548 (September 17, 1996, Wagner, J.).
Motion to dismiss denied.