Opinion
No. HHB CV 05 5000427 S
February 24, 2006
MEMORANDUM OF DECISION ON MOTION TO DISMISS (# 101)
The defendant's motion to dismiss was continued to the short calendar on January 30, 2006. After considering the parties' submissions and arguments, the court issues this memorandum of decision. For the reasons set forth below, the motion is granted.
In his complaint, dated October 19, 2005, the plaintiff seeks damages allegedly arising from a motor vehicle accident which occurred on October 20, 2003. The plaintiff alleges that the defendant, Michael Aparo, negligently drove his vehicle over the centerline of South Main Street in New Britain, Connecticut, where it collided with the automobile being driven by the plaintiff, causing personal injuries to the plaintiff.
With the motion, the movant provided a certificate of death, which lists Michael Aparo's date of death as April 26, 2005. The plaintiff has not disputed the accuracy of this information. The marshal's return, which is present in the court's file, states that service was made at Aparo's abode on October 21, 2005, over five months after the date of his death. In support of the motion, the movant asserts that the court lacks subject matter jurisdiction.
This court previously addressed similar circumstances in Marcejonis v. Torres, Superior Court, judicial district of Middlesex at Middletown, Docket No. CV 99 0090735 S (April 17, 2002, Shapiro, J.). As stated there, "[a] judgment in an action begun and prosecuted against a defendant who is dead when it was begun, is null and void and may be attacked collaterally as well as directly." O'Leary v. Waterbury Title Co., 117 Conn. 39, 47, 166 A. 673 (1933). Also, "service on a dead man deprives the court of jurisdiction to pronounce any decision on the merits . . ." Noble v. Corkin, 45 Conn.Sup. 330, 332, 717 A.2d 301 (1998) [(Blue, J.)] ( 21 Conn. L. Rptr. 547). "[A] dead person is a nonexistent entity and cannot be a party to a suit. Therefore, proceedings instituted against an individual who is deceased at the time of the filing of suit are a nullity. Such proceedings are void ab initio and do not invoke the jurisdiction of the trial court." (Internal quotation marks omitted.) Id., 333.
Judge Blue reiterated this principle in Santello v. Simmons-Moore, Superior Court, judicial district of New Haven at New Haven, Docket No. 447023 (October 15, 2003, Blue, J.) ( 35 Conn. L. Rptr. 639), a case in which, as here, abode "service" was made and a motion was later filed to substitute the decedent's executrix as a party defendant. Here, the plaintiff filed such a motion on January 19, 2006. As Judge Blue stated in Santello v. Simmons-Moore, supra, the action against the defendant "was an action against nobody." Id. Substitution of the executrix "does not alter this unalterable fact." Id. "The entire proceeding was void ab initio and did not invoke the jurisdiction of the court." Id.
In contrast, General Statute § 52-599 permits the substitution of an executrix or administrator when a defendant dies after the action is commenced. See Hayes v. Smith, CT Page 3660 194 Conn. 52, 61-62, 480 A.2d 425 (1984).
Other recent decisions are to the same effect. See Natanzon v. McLaughlin, Superior Court, judicial district of New Britain at New Britain, Docket No. CV 05 4003287 5 (July 5, 2005, Robinson, J.) ( 39 Conn. L. Rptr. 559); Horton v. Serra, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 04 0410639 (March 23, 2005, Doherty, J.) ( 38 Conn. L. Rptr. 896).
Under these circumstances, the plaintiff's arguments, that he had no way of knowing of Aparo's death since no estate was opened for Aparo, other than a tax purposes only estate and no notification, pursuant to General Statute § 45a-354, occurred; that Aparo's fiduciary and his son knew of or should have known of the accident; and that dismissal will result in a windfall to Aparo's insurer, are unavailing. Since this proceeding was void ab initio, the court lacks subject matter jurisdiction.
Section 45a-354(a), concerning notice to creditors, provides, in pertinent part, "[t]he Court of Probate shall cause newspaper notice to be published at least once notifying all persons having claims to present their claims to the fiduciary."
CONCLUSION
For the foregoing reasons, the motion to dismiss is granted.
It is so ordered.