MATASAVAGE, JUDGE.
The defendant, Boleslaw Janowicz, has moved to dismiss this action on the ground that this court lacks jurisdiction over the person and subject matter. Specifically, counsel for the defendant argues that the defendant was dead at the time that the plaintiff attempted to obtain service.
The facts are undisputed. The plaintiff claims personal injuries from a motor vehicle accident which occurred on July 13, 2001. The defendant, unfortunately, died on September 6, 2002. The plaintiff, unaware of the defendant's fate, attempted to serve him on June 16, 2003, by leaving a copy of the writ, summons and complaint with his former spouse. No estate was opened on behalf of the defendant at the time of service, and the plaintiff, as a creditor, was forced to institute a probate action for appointment of an administrator. Attorney Robert Hanahan was appointed administrator by the Waterbury Probate Court on October 16, 2003.
The defendant filed this motion to dismiss on September 17, 2003, and the plaintiff has filed an objection.
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. "Facts showing the service of process in time, form, and manner sufficient to satisfy the requirements of mandatory statutes in that regard are essential to jurisdiction over the person." (Emphasis in original; internal quotation marks omitted.) Bridgeport v. Debek, 210 Conn. 175, 179-80, (1989). But see Galluzzo v. Board of Tax Review, 44 Conn. Sup. 39, 13 Conn. L. Rptr. 507 (1995). "One who is not served with process does not have the status of a party to the proceeding . . . A court has no jurisdiction over persons who have not been made parties to the action before it." (Internal quotation marks omitted.) Exley v. Connecticut Yankee Greyhound Racing, Inc., 59 Conn. App. 224, 234-35, cert. denied, 254 Conn. 939 (2000).
The defendant has cited several superior court cases which rely on CT Page 12424 O'leary v. Waterbury Title Co., 117 Conn. 39, 47 (1933), whereby 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."
The plaintiff relies on Contadini v. Devito, 71 Conn. App. 697 (2002). However, the case stands for the proposition that the plaintiff may rely on the accidental failure of suit statute, General Statutes § 52-592, for relief in this given situation
While the plaintiff urges the court not to dismiss the action and to substitute the newly appointed administrator, the plaintiff cites no authority allowing the court to do so.
Therefore, the defendants' motion to dismiss is granted.
Matasavage, J. CT Page 12425