Opinion
No. CV 05 4002705 S
September 15, 2005
MEMORANDUM
The plaintiff, Paula Zappulla, commenced the present action by service of process upon the defendants, Murphy, Laudati and Kiel, P.C. and Carrie Maiorino, on June 17, 2005. Defendant Murphy, Laudati and Kiel, P.C. moves to dismiss the action on the grounds that the complaint identifies the defendant law firm as, "Law Firm of Murphy Laudati." The defendant asserts that the court lacks subject matter jurisdiction in this matter because the plaintiff's claim is not justiciable. Alternatively, the defendant asserts that this action is void ab initio because no corporate entity exists with the name set forth in the complaint.
"A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court." (Internal quotation marks omitted.) Blumenthal v. Barnes, 261 Conn. 434, 442, 804 A.2d 152 (2002). "A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Dyous v. Psychiatric Security Review Board, 264 Conn. 766, 773, 826 A.2d 138 (2003).
"No writ, pleading, judgment or any kind of proceeding in court or course of justice shall be abated, suspended, set aside or reversed for any kind of circumstantial errors, mistakes or defects, if the person and the cause may be rightly understood and intended by the court." General Statutes § 52-123. The Connecticut Supreme Court has previously considered whether the misdescription of a defendant in a writ, summons or complaint is a misnomer, subject to correction by amendment, or misconstrued identity which is not. See Lussier v. Department of Transportation, 228 Conn. 343, 349-53, 636 A.2d 808 (1994) (finding that a defect in the civil summons did not deprive the court of subject matter jurisdiction and was a circumstantial defect anticipated by General Statutes § 52-123); Pack v. Burns, 212 Conn. 381, 382-86, 562 A.2d 24 (1989) (finding that an amendment correcting an error in the original writ, summons and complaint was proper where such error was a misnomer). In Pack v. Burns, the Supreme Court adopted the following test previously set forth by the Nevada Supreme Court in identifying a defect as a misnomer. The proper party defendant must, (1) "have actual notice of the institution of the action; (2) [know] that it [is] the proper defendant in the action, and (3) . . . not in any way [be] misled to its prejudice." Pack v. Burns, supra, 385. "When the correct party is designated in a way that may be inaccurate but which is still sufficient for identification purposes, the misdesignation is a misnomer. Such a misnomer does not prevent the exercise of subject matter jurisdiction if the defendant was actually served and knew he or she was the intended defendant." Lussier v. Department of Transportation, supra, 350.
Here, the marshal's return indicates that "Murphy, Laudati and Kiel, P.C." was served with a copy of the writ, summons, complaint and statement of amount in demand. The summons sheet in the court file, though corrected by hand, denotes the first named defendant as "Law Office of Murphy, Laudati Kiel, P.C." The complaint refers to the "Law Firm of Murphy Laudati." An appearance was filed on behalf of "Law Office of Murphy, Laudati Kiel" one day prior to the return date. Accordingly, the court must conclude that the defendant, Murphy, Laudati Kiel, P.C., had actual notice of the institution of this action, knew it was the proper defendant in the action and was not misled to its prejudice. The plaintiff's mistake was a misnomer. Accordingly, the motion to dismiss is denied.
BY THE COURT,
Bozzuto, J.