Opinion
No. CV02 0281061-S
March 31, 2005
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT #115
FACTS
This case comes before the court on the defendant's motion for summary judgment. The pertinent facts are as follows. On June 5, 2002, the plaintiff, Joseph Cirillo, filed a one-count complaint against the defendants, Pratt Associates, Holly Plaza Associates, Robert Morganti, Sherman Durfee, and John DiMenna in connection with injuries he allegedly sustained as a result of slipping and falling in a puddle located in the men's bathroom at 290 Pratt Street in Meriden, Connecticut. The plaintiff alleges that the defendants "owned, operated, managed, maintained, controlled and/or possessed" the premises and therefore, are liable in negligence for his injuries.
On August 3, 2004, Pratt Associates, Morganti, Durfee and DiMenna, filed a motion for summary judgment on the ground that they were not in control or possession of the area where the plaintiff was allegedly injured and therefore, are not liable under a theory of premises liability. The court heard oral argument on the defendants' motion at short calendar on March 21, 2005. During argument, the defendants' counsel informed the court that the plaintiff had died several months prior to the hearing.
DISCUSSION
Bearing in mind that "[a] court may raise the issue of its subject matter jurisdiction sua sponte and must dismiss the case if it finds subject matter jurisdiction to be lacking"; State v. Carey, 222 Conn. 299, 305, 610 A.2d 1147 (1992); the court begins its analysis by addressing the effect of the plaintiff's death during the pendency of this action on the court's jurisdiction over this matter.
"Although at common law the death of a sole plaintiff or defendant abated an action by virtue of § 52-599, Connecticut's right of survival statute, a cause of action can survive if a representative of the decedent's estate is substituted for the decedent. It is a well established principle, however, that [d]uring the interval . . . between the death and the revival of the action by the appearance of the executor or administrator, the cause has no vitality. The surviving party and the court alike are powerless to proceed with it." (Citation omitted; internal quotation marks omitted.) Burton v. Browd, 258 Conn. 566, 570-71, 783 A.2d 457 (2001); see also Pinney, Payne, Van Lenten, Burrell, Wolfe Dillman, P.C. v. Tamsett, 74 Conn.App. 617, 621-22, 813 A.2d 1030 (2003).
General Statutes § 52-599 provides in relevant part: "(a) 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. (b) A civil action or proceeding shall not abate by reason of the death of any party thereto, but may be continued by or against the executor or administrator of the decedent. If a party plaintiff dies, his executor or administrator may enter within six months of the plaintiff's death or at any time prior to the action commencing trial and prosecute the action in the same manner as his testator or intestate might have done if he had lived . . ."
Thus, § 52-599 operates to save a cause of action where a party has died after the commencement of the action and an executor or administrator takes the place of the deceased party. Hayes v. Smith, 194 Conn. 52, 61, 480 A.2d 425 (1984). If no executor or administrator is substituted for the deceased party in accordance with the provisions of § 52-599, the case must be dismissed for lack of subject matter jurisdiction. Miko Bros., Inc. v. Lucas, 169 Conn. 641, 641, 363 A.2d 1044 (1975); see also Heller v. Conlon, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 94 0136818 (May 30, 1997, D'Andrea, J.).
In addition to substituting a decedent's fiduciary, it is also necessary to amend the pleadings to set forth the designation of new parties and their basis to continue on with the action. See Motiejaitis v. Johnson, 117 Conn. 631, 638, 169 A. 606 (1933); see also Taylor v. Martin, Superior Court, judicial district of Hartford at New Britain, Docket No. FA 99 0629619, (February 1, 2000, Lifshitz, J.) ( 26 Conn. L. Rptr. 404, 405).
In the present case, the plaintiff died while his action against the defendants was pending. "Upon the death of [the plaintiff], [t]he court . . . became . . . powerless to take any action to advance [the] progress [of the matter]. The machinery of the case was stopped." (Internal quotation marks omitted.) Pinney, Payne, Van Lenten, Burrell, Wolfe Dillman, P.C. v. Tansett, supra, 74 Conn.App. 621-22. To date, no one has moved the court for a substitution of parties. Until a party is substituted for the deceased plaintiff pursuant to § 52-599 and Practice Book § 9-18, the court is powerless to proceed in this action and therefore declines to rule on the defendants' motion for summary judgment.
Practice Book § 9-18 provides in relevant part "[t]he judicial authority may determine the controversy as between the parties before it, if it can do so without prejudice to the rights of others; but, if a complete determination cannot be had without the presence of other parties, the judicial authority may direct that they be brought in. If a person not a party has an interest or title which the judgment will affect, the judicial authority, on its motion, shall direct that person to be made a party."
CONCLUSION
The court hereby orders the plaintiff's counsel to substitute the plaintiff's executor or administrator in this action within sixty days of the date of this order or this action will be dismissed for lack of subject matter jurisdiction.
The court notes and plaintiff's counsel should be mindful that on December 24, 2003, court granted the motion of Kingsbrook Development Corp. to consolidate the instant action with the case of Joseph Cirillo v. Kingsbrook Development Corp. et al, Docket No. CV 02 0279660 S on the ground that both actions arise out of the same set of facts and circumstances and involve some of the same parties and questions of fact and law.
BY THE COURT
Tanzer, Judge