Presto v. Presto

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APPENDIX
CHARLES PRESTO, EXECUTOR (ESTATE OF
WILLIAM PRESTO), ET AL. v. TEODOZJA
PRESTO ET AL.*
Superior Court, Judicial District of Stamford-Norwalk
File No. CV-XX-XXXXXXX-S

Memorandum filed February 14, 2018

Proceedings

Memorandum of decision on defendants’ motion to
dismiss. Motion granted.
Charles Presto, self-represented, for the plaintiffs.
David D. Ryan, for the defendants.
Opinion

GENUARIO, J.
I
INTRODUCTION
The plaintiff, Charles Presto, brings this action both
in his individual capacity and in his capacity as executor
of the estate of William Presto. According to the allega-
tions of the complaint, the plaintiff is the executor of
the estate of William Presto, who died on March 24,
1998. William Presto was the father of both the plaintiff
and Robert Christopher Presto (Robert). The defendant
Teodozja Presto (Teodozja) is the widow of William
Presto and the stepmother of the plaintiff and Robert.
She is also the mother of the defendants Andrzej
Mazurek (Andre) and Stanislaus Mazurek (Stan). The
plaintiff further pleads that William Presto left a will
upon his death that was duly filed with the Greenwich
Probate Court and pursuant to which the plaintiff was
duly appointed as executor on March 31, 1998. There
were no objections filed as to the will of William Presto
by either Robert or Teodozja, but on August 14, 1998,
Teodozja filed a notice of election, exercising her right
to take her statutory share pursuant to General Statutes
§ 45a-436, as well as an application to appoint distribu-
tors. On December 6, 2005, an order was issued by the
Greenwich Probate Court, a copy of which is attached
to the complaint as exhibit C. A part of the order pro-
vided Teodozja with a life use of the property at 10
Carleton Street, Greenwich, subject to Robert’s right
to continue to live in the property. The order contained
other provisions concerning the Carleton Street prop-
erty as well. The plaintiff alleges that Robert left a will
devising the property to Teodozja, notwithstanding the
will of William Presto, which stated that ownership of
the property should pass to William Presto’s issue per
stirpes if Robert predeceased Teodozja. Robert died on
December 5, 2016, predeceasing Teodozja, and Robert’s
will was filed with the Greenwich Probate Court. There
is no allegation that it has been admitted to probate.
The plaintiff further pleads that objections to the will of
Robert were filed by himself in the Greenwich Probate
Court, asserting that there is a conflict as to how 10
Carleton Street should pass between the will of William
Presto and the will of Robert Presto. The plaintiff pleads
that the will of William Presto is clear that title should
pass to the plaintiff because even if Robert’s will is
declared valid it cannot devise property beyond that
which he was entitled to receive pursuant to the will
of William Presto. The plaintiff in both his capacity
as executor and as an individual seeks a declaratory
judgment of this court that title to 10 Carleton Street
should pass to him pursuant to the directions of the
will of William Presto, regardless of the provisions of
the will of Robert.
The plaintiff further alleges that the will of William
Presto contemplated Teodozja and Robert continuing
to live together at 10 Carleton Street and alleges that
the conduct of Teodozja between August 9, 2016, and
August 16, 2016, was in bad faith and unconscionable.
The plaintiff pleads that on August 9, 2016, Robert was
discharged from a nursing home where he had been
treated for a urinary tract infection and, at the time, he
was in good condition. The plaintiff pleads in some
detail, which is not necessary to repeat herein, that
Teodozja and Andre conducted themselves in a way so
as to cut off Robert’s contact with his family, friends
and the outside world. And that by August 16, 2016,
Robert was transported to Greenwich Hospital in a
severely dehydrated state and was placed on a do not
resuscitate status by August 23, 2016, as a result of the
efforts of Andre and Teodozja. The plaintiff alleges that
between August 9 and August 16, Andre and Teodozja
allowed Robert’s health to physically deteriorate,
allowing him to become dehydrated, bedbound and
uncommunicative for five days prior to calling 911. The
plaintiff further alleges that though Stan was identified
by the hospital as the person designated by the ‘‘family’’
to call the plaintiff, the plaintiff called Stan but Stan
did not call back. The plaintiff alleges that Teodozja
acted in an unconscionable manner and in bad faith
and with reckless indifference to the life of Robert, and
that such conduct hastened the death of Robert. The
plaintiff alleges that the defendant Andre acted in an
unconscionable manner and in bad faith with reckless
indifference to the life of Robert, and that such conduct
hastened the death of Robert and that the defendant
Stan acted in a manner to isolate Robert by not putting
the plaintiff on the list at Greenwich Hospital for pur-
poses of contact. On September 5, 2016, Robert died
from untreated pneumonia at Greenwich Hospital. He
was no longer getting antibiotics.
The plaintiff seeks to have the December 6, 2005
order of the Greenwich Probate Court set aside and
reevaluated, given the evidence of bad faith and uncon-
scionable conduct of Teodozja. The plaintiff seeks to
be appointed executor of the estate of Robert and to
prevent anyone from the family of Teodozja Presto to
become executor of Robert’s estate. The plaintiff also
seeks to have this court declare the will of Robert
invalid, alleging facts that give rise to claims that Robert
was not competent at the time he executed the will.
The defendants have moved to dismiss the complaint
on the grounds that the plaintiff has not alleged a cogni-
zable claim regarding either title to the property of
Robert’s estate or the validity of Robert’s will or who
should be the executor of Robert’s estate and that said
issues are not ripe for determination; that the appeal
of the December 6, 2005 probate decree is outside the
time period in which to file such an action pursuant to
the applicable statute of limitations, General Statutes
§ 45a-186; and the plaintiff’s allegations of bad faith and
unconscionable conduct are premised on the purported
Probate Court appeals, which are not ripe for determi-
nation.
Because the court agrees that the issues raised by
the plaintiff’s appeal are not yet ripe for determination,
the court grants the defendants’ motion to dismiss
this action.
II
DISCUSSION
‘‘A motion to dismiss shall be used to assert: (1) lack
of jurisdiction over the subject matter . . . .’’ Practice
Book § 10-30 (a). ‘‘[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.’’ (Internal quotation marks omitted.) Sant-
orso v. Bristol Hospital, 308 Conn. 338, 350, 63 A.3d
940 (2013).
‘‘[J]usticiability comprises several related doctrines,
namely, standing, ripeness, mootness and the political
question doctrine, that implicate a court’s subject mat-
ter jurisdiction and its competency to adjudicate a par-
ticular matter.’’ (Footnote omitted.) Office of the Gover-
nor v. Select Committee of Inquiry, 271 Conn. 540, 569,
858 A.2d 709 (2004). ‘‘Justiciability requires (1) that
there be an actual controversy between or among the
parties to the dispute . . . (2) that the interests of the
parties be adverse . . . (3) that the matter in contro-
versy be capable of being adjudicated by judicial power
. . . (4) that the determination of the controversy will
result in practical relief to the complainant.’’ (Internal
quotation marks omitted.) Id., 568–69.
‘‘[T]he rationale behind the ripeness requirement is
to prevent the courts, through avoidance of premature
adjudication, from entangling themselves in abstract
disagreements . . . . Accordingly, in determining
whether a case is ripe, a trial court must be satisfied
that the case before [it] does not present a hypothetical
injury or a claim contingent upon some event that has
not and indeed may never transpire.’’ (Internal quota-
tion marks omitted.) Cadle Co. v. D’Addario, 111 Conn.
App. 80, 82–83, 957 A.2d 536 (2008). In Cadle Co., the
Appellate Court affirmed the trial court’s dismissal of
the plaintiff’s claims where the ‘‘plaintiff’s injury [was]
contingent on a determination of the priorities of the
creditors of the decedent’s estate, the final settlement
of the estate and the absence of sufficient funds in the
estate to satisfy the plaintiff’s claim. In other words,
any injury sustained by the plaintiff stemming from the
allegations of the defendants’ misconduct are, at this
point, hypothetical.’’ Id., 83.
In the case at bar, there is no allegation that the
Probate Court has admitted the alleged will of Robert to
probate, or determined its validity, there is no allegation
that the Probate Court has appointed an executor, and
there is no allegation that the Probate Court has made
a determination that Robert owned an interest in the
property located at 10 Carleton Street sufficient to allow
him to convey the same property by will to Teodozja.
Those issues are still properly pending before the
Greenwich Probate Court and, in the first instance, need
to be decided by the Greenwich Probate Court.
This case is similar to the case of Solon v. Slater,
Docket No. CV-XX-XXXXXXX-S, 2015 WL 3651789 (Conn.
Super. May 12, 2015) (Heller, J.). In dismissing the Supe-
rior Court action, the court noted that all of the property
that the plaintiff argued should have passed to her upon
the decedent’s death was presently subject to the juris-
diction of the Probate Court. Similar to the Solon case,
the property which is the subject of this case, to wit,
10 Carleton Street, is currently subject to the jurisdic-
tion of the Greenwich Probate Court. Should the Pro-
bate Court sustain the plaintiff’s objection to the will
of Robert and determine that the decedent died intes-
tate, the plaintiff may assert his claimed rights to the
property within the Greenwich Probate Court. If the
plaintiff disagrees with the decision of the Probate
Court in that regard, the plaintiff may take an appeal
in timely fashion, which appeal will be handled in accor-
dance with law. If no appeal is taken, the plaintiff’s
claims will ultimately be barred.
Even if the will is admitted to probate, that does not
necessarily mean that the Probate Court will decide
that Robert inherited fee simple title to 10 Carleton
Street pursuant to the December 6, 2005 order (as
opposed to some lesser interest). The Probate Court
may be required to review that order to determine what
interest Robert inherited pursuant to the will of William
Presto. Until such time as the Probate Court renders
that decision, the plaintiff’s claims in the Superior Court
are not ripe.
Moreover, the allegations of the complaint relating
the alleged bad faith and unconscionable conduct of
the defendants during the periods subsequent to August
9, 2016, which allegedly hastened the death of Robert
can only be construed as allegations of breaches of
duties by the defendants to Robert. Until such time as
an executor or other fiduciary is appointed to adminis-
ter the estate of Robert, this claim by the plaintiff is
not only premature and not ripe, but asserts claims
that the plaintiff has no standing to make. Claims of
wrongdoing and breaches of duty to the decedent must
be brought by the decedent’s fiduciary. The plaintiff’s
brother acting in his individual capacity has no standing
to assert such claims. See Freese v. Dept. of Social
Services, 176 Conn. App. 64, 78–79, 169 A.3d 237 (2017);
Geremia v. Geremia, 159 Conn. App. 751, 781, 125 A.3d
549 (2015); Wells Fargo Bank, N.A. v. Treglia, Docket
No. CV-XX-XXXXXXX, 2011 WL 3672037, *3 (Conn. Super.
July 25, 2011) (Hon. Alfred J. Jennings, Jr., judge
trial referee).
III
CONCLUSION
While the plaintiff alleges facts and proceedings
which raise both interesting and litigable legal issues
relating to the title of 10 Carleton Street and serious
allegations of misconduct on the part of the defendants
toward Robert, they are not ripe for adjudication in the
Superior Court. For all these reasons, the defendants’
motion to dismiss is granted.
* Affirmed. Presto v. Presto, 196 Conn. App. , A.3d (2020).