Opinion
No. CV 07 5010861S
January 19, 2011
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT #116
The defendants move for summary judgment on three grounds: (1) the court lacks subject matter jurisdiction because the plaintiff brought this action solely in her individual capacity; (2) each of the causes of actions alleged in the complaint are barred because they are not brought within their applicable statute of limitations, and; (3) the plaintiff is not a third party beneficiary of the retainer agreement in the action in which she claims breach of contract. The court will regard the defendants' motion for summary judgment to be a motion to dismiss, as the motion raises issues of subject matter jurisdiction. The proper procedural vehicle for disputing a party's standing is a motion to dismiss.
FACTS
The present case arises out of claims asserted by the plaintiff, Rita Litvack, against the defendants Marianne Artusio and Touro College. The history of the factual allegations, spanning over a decade, have their roots in a previous litigation dispute between the plaintiff's sister and father. On November 30, 1999, the plaintiff's father, Max Kaplan, retained the defendants to represent him in a suit against his daughter, Myrna Lehrer. Artusio served as an associate professor of law and director of the Elder Law Clinic at Touro College's Law Center. On March 31, 2000, Kaplan, through the defendants as counsel, brought a diversity action against Lehrer in the United States District Court for Connecticut, Kaplan v. Lehrer, No. 3:00CV-00610-EBB ("Kaplan action"). Kaplan alleged that Lehrer had improperly removed funds from his bank account, and converted various stock holdings. Lehrer thereafter filed a third party complaint against the plaintiff Litvack, alleging, inter alia, undue influence and coercion. On October 11, 2002, Lehrer filed a motion to dismiss the Kaplan action on the ground that Kaplan, on September 17, 2002, had died during the pendency of the litigation. The motion to dismiss was granted by United States Magistrate Judge Joan Glazer Margolis on November 7, 2002, on the ground that no timely brief in opposition was filed.
Restricted preliminary letters testamentary were issued to the plaintiff on November 13, 2002. The will of Kaplan was thereafter admitted to probate, and on December 12, 2002, letters testamentary were granted and issued to the plaintiff as executrix by the New York State Surrogate Court. On January 6, 2003, the ruling by Magistrate Judge Margolis to dismiss the action was affirmed by United States District Judge Ellen Bree Burns. On January 13, 2003, the plaintiff, through attorney Kenneth Votre, filed a motion to open the judgment of dismissal and to substitute the plaintiff, as executrix of Kaplan's estate, as the named plaintiff in the Kaplan action. On March 18, 2003, Magistrate Judge Margolis initially granted the motion, but upon a motion for reconsideration filed by Lehrer, subsequently denied the motion to open the judgment of dismissal and to substitute the plaintiff on March 26, 2003. On April 13, 2004, a final order was entered in the District Court, denying with prejudice the motion to open judgment and substitute the plaintiff. The plaintiff, through attorney Votre, appealed to the Court of Appeals for the Second Circuit, where on April 5, 2006, that court affirmed the District Court's denial of the motions.
In the present action, the plaintiff served the defendants with a summons and complaint upon the secretary of state on April 17, 2007, and subsequently mailed copies via certified mail on April 24, 2007. On April 30, 2007, the plaintiff filed its complaint containing a total of ten counts against the defendants Artusio and Touro College, respectively. In the first and second counts, the plaintiff alleges legal malpractice; counts three and four allege breach of contract; counts five and six allege breach of the contractual duty of good faith and fair dealing; counts seven and eight allege reckless misrepresentation; and counts nine and ten allege negligent misrepresentation. On March 17, 2010, the defendants filed an amended answer and asserted special defenses of statute of limitations and comparative negligence.
On March 18, 2010, the defendants filed a motion for summary judgment on the grounds that: (1) the court had no subject matter jurisdiction because the plaintiff has brought the action in her individual capacity, and not as executrix of the Kaplan estate; (2) each of the allegations in the counts are barred by their respective statute of limitations; and (3) the plaintiff was not a third party beneficiary to the contract between Kaplan and the defendants as alleged in counts three and four. The defendants include with their motion a signed affidavit from Artusio. The defendants further filed a memorandum of law, and submit the following evidence, all of which is related to the Kaplan action unless otherwise noted: (1) original complaint; (2) third party complaint of Lehrer filed against the plaintiff; (3) first amended complaint with the plaintiff named as a third party defendant; (4) motion to dismiss filed by Lehrer; (5) order of restricted preliminary letters testamentary from the New York Surrogate Court; (6) decree of probate and order that letters testamentary be issued to the plaintiff as executrix; (7) ruling of District Court Judge Burns affirming earlier dismissal; (8) motion to substitute; (9) motion to open judgment of dismissal; (10) recommended ruling on plaintiff's motions by Magistrate Judge Margolis; (11) recommended ruling on motion for reconsideration; (12) final order of the District Court denying the motions with prejudice; (13) decision of Second Circuit Court of Appeals affirming the District Court order; (14) marshal's return in the present action; (15) retainer agreement of the defendants and Kaplan, and; (16) notification of retainer signed by Kaplan.
On July 28, 2010, the plaintiff filed an objection to the motion for summary judgment, and on July 29, 2010, submitted a memorandum of law in opposition. The plaintiff puts forth as counterevidence the signed and sworn affidavit of attorney Kenneth Votre. On October 1, 2010, the defendants filed a reply memorandum. The motion was heard by the court on November 1, 2010.
The plaintiff, throughout its memorandum in opposition, makes repeated reference to a deposition by the plaintiff as evidentiary support to deny the motion for summary judgment. A thorough review of the filings in this matter do not show any deposition of the plaintiff having been filed with the court, and no such deposition was attached to the plaintiff's memorandum.
DISCUSSION
"Summary judgment is a method of resolving litigation when pleadings, affidavits, and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989). "However, since litigants ordinarily have a constitutional right to have issues of fact decided by a jury . . . the moving party for summary judgment is held to a strict standard . . . of demonstrating his entitlement to summary judgment." (Citation omitted; internal quotation marks omitted.) Kakadelis v. DeFabritis, 191 Conn. 276, 282, 464 A.2d 57 (1983). "Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.) Sherman v. Ronco, 294 Conn. 548, 553-54, 985 A.2d 1042 (2010).
In the present case, the defendants argue that there are no genuine issues of material fact and they are entitled to judgment as a matter of law and make the following arguments in support: First, the court does not have subject matter jurisdiction because the plaintiff has brought this action in her individual capacity, and not as a representative of the Kaplan estate. Second, that each of the plaintiff's counts are barred by their applicable statute of limitations. Third, and finally, that "the plaintiff is not a third party beneficiary of the contract between Max Kaplan and Marianne Artusio" as alleged in counts three and four.
The plaintiff, in its memorandum in opposition, counters that there are genuine issues of material fact for trial, and makes the following arguments: First, the court has subject matter jurisdiction because the plaintiff brought the action "in her capacity as fiduciary of the Estate of Max Kaplan . . ." In particular, the plaintiff alleges in paragraph one of the first count that "she was duly appointed as administrator," and thus, the plaintiff has "disclosed her capacity in her complaint and is suing as administrator (or administratrix)." Second, the various claims are not time-barred because the plaintiff has alleged that the statutes of limitations were tolled while the defendants "continuously represented the plaintiff's decedent through the completion of the underlying case and all appeals." Third, there is a genuine issue of fact as to whether the plaintiff is a third party beneficiary of the retainer agreement between Kaplan and Artusio. In particular, the "defendants agreed to be so bound," and further, the plaintiff was the "intended or foreseeable beneficiary" because the plaintiff "is the sole beneficiary of the Kaplan Estate."
The defendants, in their reply memorandum, argue the following: First, that the "summons does not include any reference to a claim being brought by Rita Litvack as a representative of the Estate of Max Kaplan," and that any reference in the complaint to the plaintiff being appointed as the executrix of the estate "is informational only and does not create a cause of action on behalf of the Estate nor does it somehow add the Estate of Max Kaplan as an additional plaintiff in this action." Second, the plaintiff has not raised a genuine issue of fact concerning continuous representation because the "only affidavit in support of the opposition to summary judgment was filed by attorney Votre, plaintiff's counsel in this action . . . [which] is insufficient to raise a question of fact about a continuous representation sufficient to toll the statute of limitations." Further, the plaintiff cannot establish the second prong of the continuous representation test because "the plaintiff does not argue that she did not know of the alleged malpractice." Finally, the "plaintiff [cannot] recover based upon a theory that she was a third party beneficiary of the retainer agreement between Artusio and Kaplan" because the "contractual duty of Artusio owed through the retainer agreement was to Kaplan only."
I
Subject Matter Jurisdiction
The defendants first seek summary judgment on the ground that the court lacks subject matter jurisdiction because the plaintiff has sued in her individual capacity, but failed to denote her capacity as legal representative of the Kaplan estate. "[O]nce raised, the question of subject matter jurisdiction must be answered before [the court] can address the other issues raised." (Internal quotation marks omitted.) State v. Delgado, 116 Conn.App. 434, 437, 975 A.2d 736 (2009). "The issue of subject matter jurisdiction can be raised at any time . . . [and] [o]nce brought to the attention of the court, regardless of the form of the motion, it must be acted upon." (Internal quotation marks omitted.) Concerned Citizens of Sterling v. Sterling, 204 Conn. 551, 556-57, 529 A.2d 666 (1987). "[T]he plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 430 n. 12, 829 A.2d 801 (2003).
The court notes that the defendants raise the issue of subject matter jurisdiction in their motion for summary judgment. However, it is fundamental that "a motion to dismiss is the proper procedural vehicle to raise a claim that the court lacks subject matter jurisdiction over the action." Bellman v. West Hartford, 96 Conn.App. 387, 392, 900 A.2d 82 (2006); see also Manifold v. Ragaglia, 94 Conn.App. 103, 117, 891 A.2d 106 (2006) ("Although subject matter jurisdiction may be challenged at any stage of the proceedings, it has been addressed almost exclusively through a motion to dismiss."). "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 . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Beecher v. Mohegan Tribe of Indians of Connecticut, 282 Conn. 130, 134, 918 A.2d 880 (2007). The court then will properly consider the instant motion for summary judgment, raising issues of subject matter jurisdiction, as a motion to dismiss. See Cadle Co. v. D'Addario, 268 Conn. 441, 445 n. 5, 844 A.2d 836 (2004) (treating cross motions for summary judgment as motions to dismiss because the "proper procedural vehicle for disputing a party's standing is a motion to dismiss.").
Practice Book § 10-31(a) also provides in relevant part: "The motion to dismiss shall be used to assert (1) lack of jurisdiction over the subject matter . . . This motion shall always be filed with a supporting memorandum of law, and where appropriate, with supporting affidavits as to facts not apparent on the record."
"It is well established that [a] party must have standing to assert a claim in order for the court to have subject matter jurisdiction over the claim." (Internal quotation marks omitted.) Megin v. New Milford, 125 Conn.App. 35, 37, 6 A.3d 1176 (2010). "Standing is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless [one] has, in an individual or representative capacity, some real interest in the cause of action, or a legal or equitable right, title or interest in the subject matter of the controversy." (Internal quotation marks omitted.) Cardi Materials Corp. v. Connecticut Landscaping Bruzzi Corp., 77 Conn.App. 578, 581, 823 A.2d 1271 (2003).
The defendants argue that the plaintiff has pleaded solely in an individual capacity, and as a result, the court does not have subject matter jurisdiction due to the plaintiff's lack of standing to assert claims on behalf of the Kaplan estate. "The construction of a pleading is a question of law . . ." Miller v. Egan, 265 Conn. 301, 308, 828 A.2d 549 (2003). "[T]he identities of the parties are determined by their description in the summons." Hultman v. Blumenthal, 67 Conn.App. 613, 620, 787 A.2d 666; cert. denied, 259 Conn. 929, 793 A.2d 253 (2002); see also General Statutes § 52-45a, Practice Book § 8-1(a). Additionally, "[t]he writ, summons and complaint should be read together to determine the identity and capacity of a party where [the] summons and writ have various names but [the] body of [the] complaint makes clear that plaintiff is [the] duly appointed administratrix in decedent's estate." (Internal quotations marks omitted.) Scheurich v. Bridgeport Hospital, Superior Court, judicial district of Fairfield, Docket No. CV 08 5016766 (March 9, 2009, Hiller, J.) ( 47 Conn. L. Rptr. 332). Further, in Hultman, the court also analyzed the submitted briefs in order to aid in determining the party's identity and capacity. See Hultman v. Blumenthal, supra, 620.
General Statutes § 52-45a provides in relevant part: "Civil actions shall be commenced by legal process consisting of a writ of summons or attachment, describing the parties, the court to which it is returnable, the return day, the date and place for the filing of an appearance and information required by the Office of the Chief Court Administrator . . ."
Practice Book § 8-1(a) provides in relevant part: "Mesne process in civil actions shall be a writ of summons or attachment, describing the parties, the court to which it is returnable and the time and place of appearance, and shall be accompanied by the plaintiff's complaint . . ."
In the present case, it is undisputed that the summons describes the plaintiff simply as "Rita Litvack" without any reference to her capacity as executrix of the Kaplan estate. The plaintiff though contends that the capacity of the plaintiff can be derived from the first paragraph of the complaint's first count in which the plaintiff alleges: "the plaintiff, Rita Litvack, the administrator of the estate of Max Kaplan, is a resident of the Town of Oyster Bay" and "Rita Litvack was duly appointed as administrator by the Surrogates Court . . ." This allegation is then repeated in each of the subsequent counts. While this tends to strengthen the plaintiff's claim that she is clearly suing in a representative capacity, it is subsequently made opaque further in the pleadings. In paragraph 23 of counts one and two, the plaintiff claims to have been "damaged by dismissal of [the] underlying action, which would have determined her substantive rights to the funds removed from her father's bank accounts . . ." Further, in paragraph 29 of counts five and six, the plaintiff claims damages "in that she lost any opportunity to have a determination on the merits of the underlying litigation, which would have determined her interest in certain funds misappropriated from Max Kaplan by Myrna Lehrer . . ." The allegations of damages conflate the legal capacity of the plaintiff as executrix and her individual capacity. Any damages that the plaintiff suffered, in her capacity as a daughter of Kaplan or as a beneficiary of the Kaplan estate, is separate from any damages suffered in her capacity as duly appointed executor, in which she is regarded as a fiduciary representing the rights of creditors and other distributees. See Hall v. Schoenwetter, 239 Conn. 553, 559, 686 A.2d 980 (1996) ("[A]n executrix must remain loyal to the estate that she is administering and must not act out of self-interest or for the interests of parties other than the heirs, distributees, and creditors of the estate").
The plaintiff attempts to clear up any confusion by submitting an affidavit from attorney Votre, which in paragraph 21, states that the plaintiff "brought this action in her duel [sic] capacity as sole beneficiary of the estate of Max Kaplan and as an individual. The complaint is based upon her capacity to represent Mr. Kaplan's estate." This encapsulates the difficulty in adducing the intent of the plaintiff. The mere fact that the plaintiff may happen to be a beneficiary of the estate does not provide her inevitable standing to sue on its behalf. Further, the declarative second sentence asserting that the complaint is brought in the plaintiff's representative capacity seemingly contradicts the first sentence in which the plaintiff claims the action is brought in her individual capacity. Moreover, in various references throughout the plaintiff's own memorandum in opposition, it is written: on page four, that "the plaintiff brought the above entitled action in her capacity as fiduciary of the Estate of Max Kaplan;" on page seven, that "the plaintiff clearly sued as an individual and in her capacity as a fiduciary;" and finally on page fourteen, that "the plaintiff has instituted the instant action in her individual capacity and not as a representative of the Estate of Max Kaplan."
Thus, while cognizant that every presumption favoring jurisdiction should be indulged, it is nonetheless ambiguous in reading the summons, complaint, and other pleadings collectively, as to whether the plaintiff is suing the defendants in her individual capacity, or as executrix of the Kaplan estate, or as both. Therefore, the court will rely on the description in the summons to determine the identity of the plaintiff and its capacity. See Hultman v. Blumenthal, supra, 67 Conn.App. 620. It is unambiguous in the present case that the only party listed or described by the plaintiff in the summons as "plaintiff" is "Rita Litvack," and does not connote in any way her capacity as a representative of the estate of Kaplan. The court then will construe the complaint as being brought by the plaintiff in her individual capacity, and will analyze each count as to whether the plaintiff has standing to assert the claim in her individual capacity.
A
Counts One and Two: Legal Malpractice
In the first and second counts, the plaintiff asserts claims for legal malpractice against the defendants. "As a general rule, attorneys are not liable to persons other than their clients for the negligent rendering of services." Krawczyk v. Stingle, 208 Conn. 239, 244, 543 A.2d 733 (1988). An exception to this general rule exists when the "plaintiff can demonstrate that he or she was the intended or foreseeable beneficiary of the attorney's services." Id. "Determining when attorneys should be held liable to parties with whom they are not in privity is a question of public policy . . . In addressing this issue, courts have looked principally to whether the primary or direct purpose of the transaction was to benefit the third party." (Citation omitted.) Id., 245. It is apparent from the allegations that the professional legal services rendered by the defendants were directly to Kaplan as the client, and not to the plaintiff in her individual capacity, and no exception exists which would grant the plaintiff standing. The plaintiff has not alleged that, in her individual capacity, she was the intended or foreseeable beneficiary of the attorney's services. On the contrary, the plaintiff alleges in her complaint that the "rendering of legal services was done for the benefit of Max Kaplan." The plaintiff further alleges that following the death of Kaplan, the plaintiff, "in her capacity as the duly designated executrix" of the Kaplan estate, "contacted Attorney Artusio to continue the [Kaplan action]." As the gravamen of the legal malpractice claim is that the defendants failed to properly continue the Kaplan action, these allegations are construed to be asserted in her capacity as executrix. Thus, the plaintiff, in her individual capacity, lacks the requisite standing to assert the claim for legal malpractice as she does not have a specific personal and legal interest in the cause of action. Therefore, the court is without subject matter jurisdiction and the motion to dismiss counts one and two is granted.
B
Counts Three and Four: Breach of Contract
In the third and fourth counts of the complaint, the plaintiff alleges that "the legal relationship between the decedent and the defendant[s] . . . constituted a contract," and that the defendants breached the terms of the contract. Further, the plaintiff alleges that she is "a beneficiary of the contract" and was damaged as a result of the defendants breach. As alleged by the plaintiff, the legal relationship that supports the breach of contract claims are set forth in the retainer agreement and notification of retainer in the Kaplan action. A review of those documents reveal that Kaplan is the only named party to whom the defendants agreed to provide legal services. The plaintiff acknowledges in her complaint that the defendants "undertook to represent the legal and equitable interest of Max Kaplan in a professional manner . . . in accordance with the normal standards of care for an attorney in an attorney-client relationship," that the "rendering of legal services was done for the benefit of Max Kaplan," and that the defendants "breached the terms of the contract in existence between Max Kaplan and Defendant Artusio." Thus, it is clear that the plaintiff, in her individual capacity, is not alleged to have been named as a party to the contract. "It is well settled that one who [is] neither a party to a contract nor a contemplated beneficiary thereof cannot sue to enforce the promises of the contract . . ." (Internal quotation marks omitted.) Tomlinson v. Board of Education, 226 Conn. 704, 718, 629 A.2d 333 (1993). The plaintiff's standing then to assert the breach of contract claims depends on whether she could be considered a contemplated third party beneficiary of the contract.
"A third party beneficiary may enforce a contractual obligation without being in privity with the actual parties to the contract . . . Therefore, a third party beneficiary who is not a named obligee in a given contract may sue the obligor for breach . . ." (Citations omitted; internal quotation marks omitted.) Rapaport Benedict, P.C. v. Stamford, 39 Conn.App. 492, 497, 664 A.2d 1193 (1995). "[A] third party seeking to enforce a contract must allege and prove that the contracting parties intended that the promisor should assume a direct obligation to the third party." Stowe v. Smith, 184 Conn. 194, 196, 441 A.2d 81 (1981). "[T]he intent of both parties to a contract determines whether a third party has contract rights as a third party beneficiary." Grigerik v. Sharpe, 247 Conn. 293, 310, 721 A.2d 526 (1998). Although, "it is not in all instances necessary that there be express language in the contract creating a direct obligation to the claimed third party beneficiary . . . the only way a contract could create a direct obligation between a promisor and a third party beneficiary would have to be, under our rule, because the parties to the contract so intended." (Citation omitted, internal quotation marks omitted.) Dow Condon, Inc. v. Brookfield Development Corp., 266 Conn. 572, 580-81, 833 A.2d 908 (2003). To meet this test, the allegations of a complaint must be sufficient for the court to conclude that both contracting parties intended "to confer enforceable rights in a third party." Grigerik v. Sharpe, supra, 312.
Even construing the allegations of the complaint in their most favorable light, there are no facts alleged from which the court, directly or inferentially, could conclude that the defendants entered into the agreement with Kaplan intending to become obliged to the plaintiff as a third party beneficiary. Notwithstanding the plaintiff's conclusory allegation in the complaint that she is "a beneficiary of the contract," there are no factual allegations to support that the defendants, or even Kaplan, intended to confer enforceable rights to the plaintiff. Rather, the pleadings indicate that the contract for the professional legal services of the defendants were intended to directly benefit only Kaplan as the client, with no allegations that the plaintiff's existence was even known of by the defendants at the time of the contract.
The plaintiff argues in its memorandum in opposition that the defendants "agreed to be so bound" to the plaintiff as an intended beneficiary because, inter alia, the plaintiff "is the sole beneficiary of the Kaplan Estate." This argument has no merit. The defendants agreed to provide Kaplan counsel in a straightforward litigation action concerning the alleged conversion of funds from the plaintiff's father; the contract was not for any legal services to be rendered in preparation of a will or trust. See Krawczyk v. Stingle, supra, 208 Conn. 245 ("An attorney alleged to have erred in the preparation of a will may be held liable to the intended beneficiary of the will under either a tort or contract theory of liability."). Moreover, the plaintiff's status as the executrix of the estate had not been duly established at the time of contract. The fact that the plaintiff may have been subsequently recognized as the sole beneficiary, or was appointed executrix in 2002, has no bearing on determining whether the intent of the contracting parties in 1999 was to become obliged to the plaintiff as a third party beneficiary.
Based on the foregoing, the plaintiff lacks standing because she does not have a personal or legal interest as a third party beneficiary in counts three and four for breach of contract. Accordingly, the defendants' motion to dismiss counts three and four is granted.
The plaintiff also argues for breach of contract based upon an allegation that the defendants made an oral contract with the plaintiff "to continue the representation with her as [Kaplan's] fiduciary." Further, the plaintiff argues she was an intended beneficiary because the "purpose of the litigation in Kaplan v. Lehrer was to benefit Kaplan and his estate." The plaintiff, in bringing suit in her individual capacity, does not have the standing of a fiduciary to assert these claims on behalf of the estate of Kaplan.
C
Counts Five through Ten: Breach of Good Faith and Fair Dealing; Reckless Misrepresentation; Negligent Misrepresentation
In counts five and six, the plaintiff alleges that "the actions of the defendant[s] . . . breached the duty of Good Faith and Fair Dealing owed to Max Kaplan and the plaintiff as his executrix . . ." Counts seven through ten allege, respectively, reckless misrepresentation and negligent misrepresentation, on the ground that the defendants "misrepresented the fact that she had no plans to file a motion for substitution of the Plaintiff as executrix for Max Kaplan after his demise, when indeed she had represented to the plaintiff that she would make such a motion in the United States District Court." Further, the plaintiff incorporates into each of these counts the allegation that the plaintiff, "as the duly designated executrix" of the estate of Kaplan, "contacted Attorney Artusio to continue the abovementioned litigation."
As pleaded by the plaintiff, counts five and six allege breaches of duty allegedly owed to "the plaintiff as [Kaplan's] executrix." There is no allegation that a duty was breached, or even owed, to the plaintiff in her individual capacity. Similarly, counts seven through ten allege misrepresentations made by the defendants to the plaintiff in her capacity as the "duly designated executrix" of the Kaplan estate. "One who sues or is sued in an individual capacity is legally distinct from any capacity he or she may have as a legal representative of an estate, so that an action by or against one as an individual confers no standing upon that person in his or her function as an administrator or executor of an estate." Milboer v. Mottolese, Superior court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 90 0110976 (November 3, 1993, Nigro, J.).
Thus, the plaintiff does not have standing to assert the claims of breach of good faith and fair dealing, reckless misrepresentation, or negligent misrepresentation, because she does not have a legal interest in these causes — of action in her individual capacity. The motion to dismiss counts five through ten is granted as the court is without subject matter jurisdiction to consider these claims.
CONCLUSION
For the foregoing reasons, the court grants the defendants' motion to dismiss because the court lacks subject matter jurisdiction due to the plaintiff's lack of standing in her individual capacity to assert the claims in her complaint.