Opinion
No. CV 96 0152301 S
June 29, 2000
MEMORANDUM OF DECISION RE: MOTION TO REINSTATE (NO. 123)
Pursuant to General Statutes § 12-117a, the Westport Office Company (Westport Office) appealed the decision of the Board of Assessment Appeals of the town of Westport (the town of Westport) to the court. On or about January 29, 1998, Westport Office sold the property that was the subject of the appeal to Vornado-Westport L.L.C. (Vornado). Subsequently, Westport Office and Vornado filed a motion to substitute Vornado as the plaintiff in the appeal, and the court ( Karazin, J.) granted the motion. Westport Office then filed a motion to reinstate itself as a plaintiff or in the alternative cite itself in as an additional party, and the town of Westport has objected. The town of Westport argues that the motion to substitute deprives the court of subject matter jurisdiction over the claims of Westport Office; therefore, Westport Office has no interest in the appeal.
The court holds that the motion to substitute does not deprive it of subject matter jurisdiction over the claims of Westport Office pursuant to § 12-117a. "A statutory right to appeal maybe taken advantage of only by strict compliance with the statutory provisions by which it is created. . . . Such provisions are mandatory, and, if not complied with . . . [then] the court lacks jurisdiction to hear the appeal." (Internal quotation marks omitted.) Testa v. Waterbury, 55 Conn. App. 264, 268, 738 A.2d 740 (1999). Here, the town of Westport does not argue that the court lacked subject matter jurisdiction when Westport Office originally commenced the appeal in 1996. Moreover, the motion to substitute Vornado as the plaintiff failed to contain a waiver of Westport Office's claims against the town of Westport. Accordingly, the court holds that the motion to substitute does not deprive it of subject matter jurisdiction over Westport Office's claims.
Section 12-117a provides in relevant part: "Any person . . . claiming to be aggrieved by the action of the board of tax review or the board of assessment appeals . . . may, within two months from the date of the mailing of notice of such action, make application, in the nature of an appeal therefrom . . . to the superior court for the judicial district in which such town or city is situated, which shall be accompanied by a citation to such town or city to appear before said court."
Pursuant to Practice Book § 9-20, the court grants Westport Office's motion to be cited in as an additional plaintiff. Practice Book § 9-20 provides for the addition of a plaintiff "when any action has been commenced in the name of the wrong person as plaintiff, the judicial authority may, if satisfied that it was so commenced through mistake and that it was necessary for the determination of the real matter in dispute so to do." "As long as [the] defendant is fully apprised of a claim arising from specified conduct and has prepared to defend the action, his ability to protect himself will not be prejudicially affected if a new plaintiff is added. . . ." (Internal quotation marks omitted.) Federal Deposit Ins. Corp. v. Retirement Management Group, Inc., 31 Conn. App. 80, 84, 623 A.2d 517, cert. denied, 226 Conn. 908, 625 A.2d 1378 (1993). Here, the court finds Westport Office and Vornado mistakenly moved to substitute Vornado as the plaintiff, rather than moving to add Vornado as an additional plaintiff. The court further finds that Westport Office is an indispensable party to this action because it owned the subject property for three of the years involved in the present tax appeal. Moreover, the court finds that the town of Westport will not be prejudiced by the addition of Westport Office because the town of Westport had notice of Westport Office's claims from the outset of the appeal. Accordingly, the court grants Westport Office's motion to cite itself in as an additional plaintiff.
The court notes that the failure of the town of Westport to answer the amended complaint dated April 6, 2000 is of no consequence because Westport Office and Vornado failed to amend the complaint pursuant to Practice Book § 10-60. Practice Book § 10-60 provides in relevant part" "a party may amend his or her pleadings . . . in the following manner: (1) By order of judicial authority; or (2) By written consent of the adverse party; or (3) By filing a request for leave to file such amendment, with the amendment appended, after service upon each party as provided by Sections 10-12 through 10-17, and with proof of service endorsed thereon."
MINTZ, J.