Weir v. Ludwikow

Full title: DAVID WEIR v. STEPHEN J. LUDWIKOW, ADMINISTRATOR OF THE ESTATE OF ALDO A…

Court: Connecticut Superior Court Judicial District of New Britain at New Britain

Date published: Aug 22, 2006

2006 Ct. Sup. 15646 (Conn. Super. Ct. 2006)

Opinion

No. HHB CV 06 5000637 S

August 22, 2006

MEMORANDUM OF DECISION ON MOTION TO DISMISS (#102)

ROBERT B. SHAPIRO, JUDGE.

The court heard argument concerning the defendant's motion to dismiss at the short calendar on July 17, 2006. The defendant presented evidence in the form of documents, with his motion papers, and at the hearing before the court, to which the plaintiff did not object. Neither party requested the opportunity to present evidence in the form of testimony. After considering the parties' submissions and arguments, the court issues this memorandum of decision. For the reasons set forth below, the motion is denied.

I Background

In his complaint, dated December 28, 2005, the plaintiff, David Weir, seeks damages allegedly arising from a motor vehicle accident which occurred on December 30, 2003 in New Britain, Connecticut. The plaintiff alleges that Aldo A. Vitelli, who is deceased, caused the accident by driving into the path of the plaintiff's oncoming vehicle, resulting in personal injuries to the plaintiff.

The plaintiff further alleges that Stephen J. Ludwikow has been appointed as the administrator of Vitelli's estate. This action was commenced against Ludwikow, in that capacity.

II Discussion A Suit Against Administrator

The defendant argues that, since Vitelli died on February 23, 2005, and since this action was commenced subsequent to his death, the court lacks subject matter jurisdiction. In particular, the defendant cites decisional law from the Superior Court, including this court's recent decision in Heath v. Aparo, Superior Court, judicial district of New Britain at New Britain, Docket No. HHB CV 05 5000427 S (February 24, 2006, Shapiro, J.). The defendant argues that this case is similar to Heath. There, the plaintiff successfully argued 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-354,¹occurred.

The circumstances here are different. In Heath, the named defendant, Aparo, was the deceased driver, not an appointed administrator. Thus, the allegations which are before the court do not involve an action which was commenced against a defendant who was dead when the action began. In contrast, "[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) ( 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., 333²

2 In contrast also, 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, 194 Conn. 52, 61-62, 480 A.2d 425 (1984).

A suit which is commenced against a decedent's administrator is not a suit against the decedent himself. See Contadini v. DeVito, 71 Conn.App. 697, 699-02, 803 A.2d 423, cert. denied, 262 Conn. 918, 812 A.2d 862 (2002) (suit against executor permitted to proceed under General Statues § 52-592 after previous action, which was commenced against decedent, was dismissed). The action which is before the court is not a suit against a dead person, and, therefore, is not void ab initio. Thus, the court is not deprived of jurisdiction on that basis.

B Timeliness

At the hearing, based on the exhibits which he provided with his supplemental memorandum in support of motion to dismiss (# 103), and an exhibit presented at the hearing, the defendant argued also that the plaintiff's claim is barred by General Statutes § 45a-363³ and 45a-364.⁴ He noted in his supplemental memorandum that an estate was opened and probated before the defendant was appointed as administrator. The defendant argues that more than 120 days elapsed between the date of the finalizing of the probate proceedings, wherein Vitelli's wife filed an affidavit in lieu of administration, and the date of an original suit against Vitelli which was not returned to court. He contends that the plaintiff's personal injury claim was not timely presented against the estate.

In response, the plaintiff argued that the timeliness of claim issue should be addressed not by a motion to dismiss but through the pleading of a special defense. As discussed below, the court agrees.

"[S]ection [45a-363] applies to the filing of claims against estates of decedents. The purpose of the statute is to encourage the timely settlement of decedents' estates. [Section] 45a-363 is purely procedural in nature, governing the time within which to file a suit against an estate when a claim has been rejected by an executor or administrator."(Emphasis in original; internal quotation marks omitted.) Kubish v. Zega, 61 Conn.App. 608, 620, 767 A.2d 148, cert. denied, 255 Conn. 949, 769 A.2d 62 (2001).

"The statute does not create the right of action upon which the claim is based, as § 52-555 does for a wrongful death case, and thus is not a jurisdictional prerequisite." (Internal quotation marks omitted.) Northeast Savings, F.A. v. Milazzo, 44 Conn.Sup. 477, 480, 691 A.2d 603 (1996) ( 17 Conn. L. Rptr. 241). Rather, "[s]ection 45a-363 and its predecessors has long been recognized as `simply a statute of limitations.' Grant v. Grant, 63 Conn. 530, 546, 29 A. 15 (1893); Brown Bros. v. Brown, 56 Conn. 249, 252, 14 A. 15 (1887)." Id., 44 Conn.Sup. 481.

"This claimed failure to institute suit within 120 days is not a jurisdictional defect, but one that should be addressed by special defense. Practice Book § 10-50 . . ." (Citation omitted.) Bryant v. Wentworth, Executrix, Superior Court, judicial district of Hartford at Hartford, Docket No. CV 04 0831058 (August 30, 2004, Wagner, J.T.R.) ( 37 Conn. L. Rptr. 756). "[T]he one hundred twenty day limitation set forth in § 45a-363 is a statute of limitation. Thus, the defendant's contention that the plaintiff did not comply with the procedural prerequisite in effect becomes a statute of limitations defense. It is improper to raise such a defense in a motion to dismiss, as it must be specially pleaded. See Practice Book § 10-50; Ross Realty Corp. v. Surkis, 163 Conn. 388, 391, 311 A.2d 74 (1972)." Mooney v. Murphy, Admx., Superior Court, judicial district of Danbury, Docket No. CV99 0335987 (March 14, 2001, Adams, J.) ( 29 Conn. L. Rptr. 81). "[T]he provisions of § 45a-363 barring suits filed later than one hundred twenty days after rejection of a claim do not implicate the subject matter jurisdiction of the court, and therefore, the motion to dismiss should be denied." Id. The same reasoning applies to the provisions of § 45a-364.

CONCLUSION

For the foregoing reasons, the defendant's motion to dismiss is denied. It is so ordered.