Opinion
CV166028124S
09-25-2017
Dominick Viggiano, Administrator v. Diligent Enterprise, Inc. dba Comforcare et al
UNPUBLISHED OPINION
OPINION
Irene P. Jacobs, J.
BACKGROUND
This medical malpractice and wrongful death action was commenced by the plaintiff as administrator of his mother's estate on April 4, 2016, with a May 12, 2016 return date. The plaintiff alleges the professional negligence of the defendants in providing home health and skilled nursing care for his late mother. The first-named defendant Diligent Enterprise, Inc., filed the instant motion to dismiss the complaint on jurisdictional grounds [#104], and a supporting memorandum of law [#105], on April 20, 2016. The defendant bases its motion on the fact that the plaintiff failed to attach a good faith opinion letter to his complaint, as required in medical malpractice actions by Connecticut General Statutes § 52-190a. The plaintiff filed an amended complaint, with an attached good faith opinion letter, on May 10, 2016 [#111]. The defendant's May 17, 2016 objection to the amended complaint [#112] was overruled by this court on May 1, 2017 [#112.01]. On May 20, 2016, the plaintiff filed a memorandum of law opposing the defendant's motion to dismiss [#114]. The motion to dismiss was heard by the court at short calendar on June 5, 2017.
DISCUSSION
Connecticut General Statutes § 52-128 provides: " The plaintiff may amend any defect, mistake or informality in the writ, complaint, declaration or petition, and insert new counts in the complaint or declaration, which might have been originally inserted therein, without costs, within the first thirty days after the return day and at any time afterwards on the payment of costs at the discretion of the court; but, after any such amendment, the defendant shall have a reasonable time to answer the same." See also Practice Book § 10-59.
" In Sheehan v. Zoning Commission, 173 Conn. 408, 378 A.2d 519 (1977), our Supreme Court reversed the judgment of the trial court dismissing the plaintiff's complaint on jurisdictional grounds where the plaintiff had filed an amended complaint within the prescribed statutory thirty days. The defendant had argued that once its motion to erase (now a motion to dismiss) had been filed with the trial court, the court correctly disposed of the question of jurisdiction before any motion or pleading of the plaintiffs could be entertained . . . In reversing the judgment of the trial court, our Supreme Court explained, however, that there was no 'motion or pleading' to 'be entertained' by the court . . . because the amendment was as of right under § 52-128 and Practice Book § 131 [now § 10-59] and took effect ab initio." (Citation omitted; internal quotation marks omitted.) Dauti v. Stop & Shop Supermarket Co., 90 Conn.App. 626, 879 A.2d 507, cert. denied, 276 Conn. 902, 884 A.2d 1025 (2005). In Dauti, " [t]o support its position that the original complaint is the operative complaint, [the defendant] relies on Federal Deposit Ins. Corp. v. Peabody, N.E., Inc., 239 Conn. 93, 99, 680 A.2d 1321 (1996), and its statement that [w]henever the absence of jurisdiction is brought to the notice of the court or tribunal, cognizance of it must be taken and the matter passed upon before it can move one further step in the cause . . . In Federal Deposit Ins. Corp., however, the defendant moved to dismiss the complaint for lack of subject matter jurisdiction and the plaintiff then moved to amend the complaint . . . Our Supreme Court held that before the trial court could grant the plaintiff's motion to amend, it had to consider the issue of subject matter jurisdiction." (Citations omitted; emphasis omitted; internal quotation marks omitted.) Dauti v. Stop & Shop Supermarket Co., supra, 640. In Dauti, " however, the plaintiffs did not move to amend their complaint; rather, they submitted an amended complaint as of right . . . The plaintiffs filed their complaint on October 7, 2002, with a return date of October 22, 2002. On November 1, 2002, [the defendant] filed a motion to dismiss the entire complaint on the ground that the court lacked subject matter jurisdiction. On November 12, 2002, the plaintiffs filed an amended complaint captioned 'Amended complaint as of right pursuant to Connecticut Practice Book Section 10-59.' This amended complaint was filed well within the statutory thirty days of the return date. In accordance with General Statutes § 52-128 and Practice Book § 10-59, the amendment was 'as of right' and took effect ab initio . . . Therefore, the operative complaint is the November 12, 2002 amended complaint." (Citations omitted; emphasis in original; footnote omitted.) Dauti v. Stop & Shop Supermarket Co., supra, 640-41.
In the instant action, the complaint was filed on April 4, 2016, with a return date of April 12, 2016. The amended complaint and good faith opinion letter were filed on May 10, 2016, within the statutory thirty days for the filing of amendments as of right. Although the instant motion to dismiss was filed prior to the filing of the amended complaint, the amended complaint, with its good faith opinion letter, took effect ab initio.
CONCLUSION
For the foregoing reasons, the motion to dismiss is denied.