ZHUTA v. BOUCHER, No. CV11-6010507-S (Aug. 16, 2011)

DIANA ZHUTA, A MINOR BY HER PARENT AND NATURAL GUARDIAN BLERIM ZHUTA v. CORY BOUCHER ET AL.

2011 Ct. Sup. 17481
No. CV11-6010507-SConnecticut Superior Court Judicial District of Waterbury at Waterbury
August 16, 2011

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

MEMORANDUM OF DECISION
CRAWFORD, J.

This is a Motion to dismiss.

Procedural History
The plaintiff brought this personal injury action alleging the following: the defendant, Cory Boucher, operated a motor vehicle owned by the defendant Johanne M. Uzwack (Uzwack), in a negligent and careless manner, which caused a violent collision with the vehicle operated by the plaintiff.

The defendant Uzwack filed this Motion to Dismiss on the grounds that the court lacked subject matter jurisdiction because of her death, prior to the initiation of the action.

The plaintiff did not file an objection to the Motion to Dismiss.

Discussion
A Motion to Dismiss shall be used to assert lack of subject matter jurisdiction. C.P.B. § 10.3(a)(1). “An action begun and prosecuted against a defendant who is dead when it was begun is null and void.”O’Leary v. Waterbury Tile Co., 117 Conn. 39, 47, 166 A. 623 (1933).

In this case the collision occurred on or about December 18, 2009. The defendant Uzwack died on December 10, 2010, verified by a certified copy of the death certificate submitted by counsel. (See attachment #1.)[*]
The death certificate listed the deceased as Johanne Casey. However, the defendant also submitted an affidavit explaining the difference in the named defendant and the name of the deceased on the death certificate. (See attachment #2.)[**] Uzwack was the name from a prior marriage.

On June 14, 2011, the plaintiff attempted abode service on both CT Page 17482 defendants and made service on the Commissioner of Motor Vehicles for both defendants. Additionally, on June 15, 2011, the plaintiff mailed the Writ, Summons and Complaint to both defendants.

As Judge Blue stated in Noble v. Corkin, 45 Conn.Sup. 330, 717 A.2d 301
[21 Conn. L. Rptr. 547] (1998), and again in Santiello v. Simmons-Moore, 203 Ct.Sup. 11396 (2003), an action brought against an individual who is deceased at the time of the filing of the action is a nullity. The action is void ab initio and does not invoke the jurisdiction of the trial court.

In several decisions throughout the state, Judges have granted the Motion to Dismiss where the defendant died prior to the start of the action.[1]

Conclusion
Whenever it is found that the court lacks jurisdiction of the subject matter, the Judicial Authority shall dismiss the action. C.P.B. § 10-33. In this case the plaintiff initiated the action in June 2011. The defendant Uzwack died December 10, 2010, approximately six months earlier. It is undisputed that the defendant Uzwack was deceased at the time of the initiation of the action. Therefore, the court lacks jurisdiction.

Accordingly, the Motion to Dismiss is granted.

[*] [Editor’s Note: The above referenced attachment has not been reproduced herein.]

[**] [Editor’s Note: The above referenced attachment has not been reproduced herein.]

[1] State v. Bauman, Docket No. CV10-6011085 (September 16, 2010, Wilson, J., Judicial District of New Haven). Hylton v. Dibrio, Docket No. CV 10-6007217 (July 26, 2010, Robinson, A.J., Judicial District of New Haven) [50 Conn. L. Rptr. 325]. Turner v. Pivarzyk, Docket No. CV06-5007862 (June 1, 2007, Weise, J., Judicial District of Hartford) Heath v. Apara, Docket No. CV05-5000427 (February 24, 2006, Shapiro, J., Judicial District of New Britain).

CT Page 17483