Opinion
No. CV03 0083647S
June 30, 2004
MEMORANDUM OF DECISION
On November 10, 2003, the plaintiff, Diana Mosquera, filed a complaint against the defendant, John Karpuk. The plaintiff alleged that the defendant operated his motor vehicle negligently and carelessly, resulting in a collision that occurred on or about October 10, 2001, in which the plaintiff was injured. The sheriff's return indicates that the plaintiff made service upon the defendant on October 10, 2003, by leaving the writ, summons, and complaint at the commissioner of motor vehicles as authorized under Connecticut law (General Statutes § 52-63), and by mailing a copy of the writ, summons and complaint to the defendant at 604 Roundtree Drive, Naugatuck, Connecticut.
On November 28, 2003, the defendant filed a motion to dismiss this action on the ground that the court lacks subject matter and personal jurisdiction, supported by a memorandum of law. Specifically, counsel for the defendant argues that service upon the defendant was ineffective because he had died on March 19, 2003, approximately seven months prior to the commencement of this suit. The plaintiff has not filed an opposing memorandum of law.
The defendant has filed a suggestion of death together with a certified death certificate, both of which attest to the fact that the defendant died on March 19, 2003.
However, on May 28, 2004, the plaintiff did file a motion to substitute the administratrix of the defendant John Karpuk's estate as the named defendant in this action. The defendant responded by way of objection to the plaintiff's motion, reiterating the argument advanced in the motion to dismiss.
"The motion to dismiss shall be used to assert (1) lack of jurisdiction over the subject matter, (2) lack of jurisdiction over the person . . ." Practice Book § 10-31. "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." (Emphasis in the original; internal quotation marks omitted.) Gurliacci v. Mayer, 218 Conn. 531, 544, 590 A.2d 914 (1991). "The requirement of subject matter jurisdiction cannot be waived by any party and can be raised at any stage in the proceedings." (Internal quotation marks omitted.) Fort Trumbull Conservatory, LLC v. Alves, 262 Conn. 480, 486, 815 A.2d 1188 (2003).
In Connecticut, it is well settled that a court has no jurisdiction over a lawsuit by or against a decedent. O'Leary v. Waterbury Title Co., CT Page 10105 117 Conn. 39, 47, 166 A. 673 (1933); see also Williams v. Marcher, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV97 0346212 (January 29, 1998, Skolnick, J.) ( 21 Conn. L. Rptr. 303); Brown v. Novick, Superior Court, judicial district of Stamford/Norwalk at Stamford, Docket No. CV96 0150483 (October 8, 1996, Ryan, J.) ( 17 Conn. L. Rptr. 564). The Supreme Court has stated that "[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., supra, 117 Conn. 47. "[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.) Noble v. Corkin, 45 Conn. Sup. 330, 333, 717 A.2d 301, 21 Conn. L. Rptr. 547 (1998).
As the defendant correctly argues, this action was not properly commenced against the defendant because the defendant was not alive at the time service of process was made. The provisions of General Statutes § 52-63, which expressly allow for substituted service upon the commissioner of motor vehicles for resident motor vehicle operators, are revoked upon the death of a resident motor vehicle operator. Joyner v. Hmurcik, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV98 0350426 (October 19, 1999, Skolnick, J.) ( 25 Conn. L. Rptr. 560). Several Superior Court cases have dismissed actions where a resident operator was deceased at the time substituted service was made upon the commissioner of motor vehicles. See Castelhano v. Baldwin, Superior Court, judicial district of Hartford/New Britain at New Britain, Docket No. CV95 0469194 (November 24, 1995, Fineberg, J.); Mendoza v. Luzusky, Superior Court, judicial district of Waterbury, Docket No. 116137 (November 17, 1993, McDonald, J.) ( 10 Conn. L. Rptr. 394, 8 C.S.C.R. 1270).
Where a court is devoid of jurisdiction over a case, the court "cannot make a decision in favor of either party. It can only dismiss the case for want of jurisdiction." (Internal quotation marks omitted.) Marshall v. Clark, 170 Conn. 199, 205, 365 A.2d 1202 (1976); Koennicke v. Maiorano, 43 Conn. App. 1, 25, 682 A.2d 1046 (1996).
The defendant's Motion to Dismiss the Complaint is granted.
The Court
By Ronan, JTR