--- Am. Tribal Law ----, 2024 WL 413485 (Mohegan Gaming Trial Ct.)
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Mohegan Gaming Disputes Trial Court.
 
Kamal BHERWANI, Voluntary Administrator of the Estate of Ethan Bherwani
v.
MOHEGAN TRIBAL GAMING AUTHORITY
 
7 G.D.R 76
|
DOCEKT NO.: GDTC-T-22-102-JAC
|
January 26, 2024

 

MEMORANDUM OF DECISION

Collins, J.

SUMMARY

The Plaintiff, Voluntary Administrator of his son’s estate pending in New York, brought suit against the Mohegan Tribal Gaming Authority and the Mohegan Tribe under the Mohegan Torts Code, MTC § 3-241, et seq., alleging negligence on the part of their agents and employees in response to his son’s medical emergency, leading to his death. The complaint alleges that the decent purchases illegal drugs from an individual, barred from the Casino, that contained fentanyl, which caused the decedent to collapse at the gaming table and that the Defendants’ employees delayed providing medical assistance and/or that the assistance provided was inadequate.

At issue in Defendant’s motion to dismiss was Plaintiff’s standing as Voluntary Administrator to bring this action. The Gaming Disputes Trial Court, Collins, J., held that a Voluntary Administrator under New York Law does not have standing to bring claim in either Connecticut or Mohegan Courts, and granted the motion to dismiss. The Court further noted, as a matter of first impression, that Connecticut’s Wrongful Death Statute is not inconsistent with Mohegan law and that wrongful death claims may be asserted in the Mohegan Court System.

 

Procedural Status

This matter commenced by way of a summons and complaint1 dated April 28, 2022 and filed on May 2, 2022. The defendant’s Request to Revise,2 dated July 19, 2022, was overruled3 by the court on December 7, 2022, and an Answer and Special Defense4 was filed on January 11, 2023. The defendant filed a Motion to Dismiss, alleging lack of subject matter jurisdiction,5 on March 23, 2023. The plaintiff’s Objection to Motion to Dismiss6 was filed on March 29, 2023, followed by the defendant’s Reply to Plaintiff’s Objection to Motion to Dismiss7 filed on April 13, 2023, followed by Plaintiff’s Sur-reply re: Motion to Dismiss8 dated June 12, 2023. A hearing was held on June 13, 2023 to address the foregoing Motion to Dismiss pleadings, after which the court, by order9 dated June 14, 2023, requested supplemental briefs to be filed by July 28, 2023. The Plaintiff’s Supplemental Memorandum re: Motion to Dismiss10 and Defendant’s Post-hearing Brief11 were each filed on July 28, 2023, and a subsequent hearing to address same was held on August 10, 2023. On November 17, 2023, counsel graciously consented to a 60-day extension of the 120-day rule (Conn. Prac. Bk. § 11-19) until February 6, 2024.

 

Standard of Review

Although not specifically referenced, the court treats the Defendant’s Motion to Dismiss as being filed for lack of standing which deprives the court of subject matter jurisdiction under Mohegan Rules of Civil Procedure (MRCP) § 2012 accord, Connecticut Practice Book § 30. “Lack of subject matter jurisdiction may be asserted at any time by the parties or by the court sua sponte. Romanella v. Hayward, 933 F.Supp. 163, 165 (D. Conn. 1996), aff’d 114 F.3d 15 (2d Cir. 1997) ...” Fox v. Brown, 1 M.T.C.R. 36, CV-05-0114, 6 Am. Tribal Law 446 (Mohegan Tribal Ct. Oct. 03, 2005). “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.) Burton v. Commissioner of Environmental Protection, 291 Conn. 789, 802, 970 A.2d 640 (2009).” D’Ambra v. Maikshilo, 5 G.D.R. 35, GDTC-T-10-105-PMG, 12 Am. Tribal Law 210 (Mohegan Gaming Disputes Ct. Jun. 19, 2012). Once raised, the issue of subject matter jurisdiction must be resolved before proceeding further with the case. “[O]nce the question of lack of jurisdiction of a court is raised, [it] must be disposed of no matter in what form it is presented ... and the court must fully resolve it before proceeding further with the case ....” Community Collaborative of Bridgeport v. Ganim, 241 Conn. 546, 552, 698 A.2d 245 (1997), quoting Castro v. Viera, 207 Conn. 420, 429–30, 541 A.2d 1216 (1988). See: Integlia v. Mohegan Tribal Gaming Authority, 2 G.D.R. 125, 6 Am. Tribal Law 527 (2005), citing Figueroa v. C & S Ball Bearing, 237 Conn. 1, 4, 675 A.2d 845 (1996). Indeed, in the first published decision of this court (albeit on sovereign immunity grounds) Judge Guernsey noted that “A motion to dismiss is the proper manner of asserting lack of subject matter jurisdiction. Conn. Prac. Bk. § 143(1); MTO. 95-4 Article VIII, Sec. 800.” Ager v. Office of Director of Regulation, 1 G.D.R. 1, GDTC-AA-97-107, 1 Am. Tribal Law 380 (Mohegan Gaming Disputes Ct. Oct 30, 1997).

The defendant appropriately notes that the standard applicable to a motion to dismiss is well established. “It is well settled that in a challenge to this Court’s subject matter jurisdiction, the Court must consider the allegations of Plaintiff’s complaint in a way most favorable to the Plaintiff. In deciding jurisdictional issues raised by a pretrial Motion to Dismiss, the court must consider “the allegations of the complaint in their most favorable light.” Lemoine v. McCann, 40 Conn. App. 460, 464, 673 A.2d 115 (1996) quoting Reynolds v. Soffer, 183 Conn. 67, 68, 438 A.2d 1163 (1981). “A motion to dismiss admits all facts well pleaded and invokes any record that accompanies the motion, including supporting affidavits that contain undisputed facts.”13 Beck v. Mohegan Tribal Gaming Authority, No. GDTC-D-18-124-PMG, 17 Am. Tribal Law 55, 57 (Mohegan Gaming Disputes Trial Ct. Aug. 28, 2019) (citing Long v. Mohegan Tribal Gaming Authority, 1 G.D.R. 5, 7, 1 Am. Tribal Law 385 (1997))”.

 

Brief Factual Allegations and Legal Claims

The Plaintiff alleges that his decedent, Ethan Bherwani, was an invitee at the defendants’ Mohegan Sun Casino on May 17-18, 2022. At that time he claims that an individual provided illegal drugs to Ethan laced with fentanyl, causing his death on May 27, 2022, due to claimed negligence of the defendants (hereinafter defendant).14 Plaintiff and Defendant agree that Kamal Bherwani was appointed as Voluntary Administrator of his son’s estate by the Nassau County Surrogate’s Court on November 16, 2021.

See: No. 113, Exhibit A.

The claims of the plaintiff and defendant are multi-faceted and complex. These claims are summarized below:

A. Defendant.

• The defendant claims that “the Plaintiff lacks standing to pursue a claim for wrongful death on behalf of the decedent’s Estate. Plaintiff has not been appointed by a Probate Court in Connecticut as Administrator or Executor of the Estate, as required by the Connecticut wrongful death statute, C.G.S. § 52-555. Nor has the Plaintiff been vested by a court of any other state with the authority to bring suit on behalf of the Estate. He lacks legal capacity to pursue the claims asserted against the Defendants on behalf of the Estate”. In its accompanying Memorandum of Law the defendant further claims that the plaintiff is barred from refiling the complaint under C.G.S. § 52-592a.15

• In a reply brief to the Plaintiff’s objection, the defendant notes that “Connecticut law has established beyond question that there can be no recovery for wrongful death except pursuant to Conn. Gen. Stat. § 52-555. Ecker v. Town of West Hartford, 205 Conn. 219, 530 A.2d 1056 (1987).”16 Defendant argues that “The remedial purpose of § 52-555 is quite clear: it supersedes the common law rule that did not recognize a cause of action for wrongful death and permits recovery subject to the requirement that an estate be established pursuant to law and a qualified legal representative be appointed with responsibility for the proper administration of that estate.”17 Lastly, the defendant points to Mohegan Tribe Code (hereinafter, MTC) § 3-247 for the proposition that a duly qualified administrator in any court of competent jurisdiction, even a foreign court, needs to be appointed to bring such a claim. Such appointment would not impose probate court jurisdiction over the defendant. Appointment as a temporary administrator is not applicable, the defendant argues, in the case at bar, nor would relatives not holding appointment authority be allowed to bring claims on behalf of the decedent, Ethan Bherwani.

• By way of a supplemental brief requested by the court, the defendant argues18 that Connecticut Probate Court Jurisdiction also extends to the estates of non-resident individuals who suffered fatal injuries on the Mohegan Reservation only if “the non-resident decedent’s executor or administrator can demonstrate that the decedent had prior residence in Connecticut, real or tangible personal property in Connecticut, a bank account in Connecticut, or that he/she had a will and one of the executors named therein resides in Connecticut”19. Interestingly, the defendant seemingly argues that non-Connecticut residents would have no claims for wrongful deaths occurring on the Mohegan Reservation, because of the interplay between C.G.S § 45a-303 and C.G.S § 45a-287, suggesting that Mohegan reservation is not within a Connecticut probate district. The defendant acknowledges such would not be the case for Connecticut residents. The defendant further argues that “Connecticut law defines an administrator, for purposes of § 52-555, as a person appointed by a probate court and to whom letters of administration have been granted,” and “that in any wrongful death action, any claim must be asserted on behalf of the estate by an administrator properly authorized to bring such claim” and that “the Connecticut wrongful death statute does not create an individual right of action”20.

B. Plaintiff.

• The plaintiff claims that “the defendant’s argument fails for several reasons: (1) This Court does not require appointment in Connecticut or any other state in order to maintain a wrongful death action; (2) Connecticut’s wrongful death statute directly conflicts with Mohegan law rendering it inapplicable pursuant to MTC § 3-52; (3) Connecticut Probate Court has no jurisdiction over the Estate of Ethan Bherwani because the defendants are not subject to suit in Connecticut; and (4) even if the Court holds that Connecticut’s wrongful death statute governs this claim, the appointment of the plaintiff as a voluntary administrator meets the definition of an administrator under C.G.S. § 52-555.21

• In his Sur-reply re: Motion to Dismiss, the plaintiff claims further that “this Court should follow its prior precedent in Lubrano and trail the clear and common-sense rule that any Connecticut General Statute which facially conflicts with Mohegan law, in any part, is not the law of this Court per MTC § 3-52. Thus, pursuant to this Court’s own precedent, the Connecticut Wrongful Death Statute is not applicable in this jurisdiction”22. As to fiduciary capacity, the plaintiff suggests that “there is no specific legal basis upon which this Court could conclude that a voluntary administrator appointed by a New York Court cannot maintain a wrongful death claim under the express provisions of Mohegan law” and that “Connecticut law has held that an attack on the capacity of an Estate’s representative does not implicate a Court’s subject matter jurisdiction.23

• By way of a supplemental brief requested by the court, the plaintiff also interestingly argues, for reasons different than the defendant, “that Connecticut Probate Courts would not have the authority to administer the Estate of a non-resident unless that non-resident has a cause of action that could be brought in a Connecticut Court” ... and that “The Connecticut Probate Court has concurrent jurisdiction with Connecticut Superior Courts. Therefore, it would stand to reason that the jurisdictional reach of the Probate Court and any of its districts, would not exceed the jurisdictional power of the Superior Court covering the same district.”24

After reviewing well-researched briefs and arguments of counsel,25 the court concludes that its focus is two-fold, as set forth below. The court had previously advised counsel not to address arguments as to whether the accidental failure of suit statute (C.G.S. § 52-592) is applicable to the instant matter should the court dismiss the claim. Such argument is not ripe for adjudication and is best left, if at all, to a different day.

 

Jurisdiction

It is well established that “[a] party must have standing to assert a claim in order for the court to have subject matter jurisdiction over the claim.” (Internal quotation marks omitted.) Lewis v. Slack, 110 Conn. App. 641, 643, 955 A.2d 620, cert. denied, 289 Conn. 953, 961 A.2d 417 (2008). “Standing is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless he [or she] has, in an individual or representative capacity, some real interest in the cause of action, or a legal or equitable right, title or interest in the subject matter of the controversy.” (Internal quotation marks omitted.) Sadloski v. Manchester, 228 Conn. 79, 84, 634 A.2d 888 (1993), on appeal after remand, 235 Conn. 637, 668 A.2d 1314 (1995). Megin v. Town of New Milford, 6 A.3d 1176, 125 Conn. App. 35 (Conn. App. 2010).

A review of the two Connecticut tribal jurisdictions, Mohegan and Mashantucket, reflects that the instant jurisdictional issues have not previously been addressed. The law in Connecticut is clear as to claims under C.G.S. § 52-555. If an individual sustains an injury and subsequently dies, his authorized legal representative may bring and continue a claim on his behalf. Connecticut law does not allow individuals or family members to assert such claims absent legal authority to do so. Connecticut case law provides that only lawfully empowered executors or administrators may do so.26 A review of New York law similarly reveals that individuals or family members may not continue or bring claims on behalf of a decedent. To do so they must first obtain proper legal authority under New York law.27 In this matter, Ethan Bherwani’s father was appointed as voluntary administrator of his son’s estate. Documents proffered by the defendant clearly reflect that he had no authority under New York law to bring the instant matter. His authority to act was specifically restricted by the Surrogate’s Court.28 Indeed, in a similar Connecticut matter, a court dismissed for lack of subject matter jurisdiction a plaintiff who was “appointed as an estate examiner for the limited purpose of obtaining medical information concerning her late husband to investigate a potential cause of action of the estate, surviving spouse, children, heir or other dependents of the deceased person.’ ...” Marshall v. William W. Backus Hospital, KNLCV156023525S (Conn. Super. Nov 22, 2016). This court rejects the analysis of the plaintiff that such legal authority is not needed to advance the claim of Ethan Bherwani, especially given that both Connecticut and New York law requires the appointment of a properly authorized administrator to pursue such claims. It is axiomatic that an administrator or personal representative can only act with the authority conferred upon him/her.

The plaintiff claims that Conn. Prac. Bk. § 10-46 requires, in pertinent part, that:

“Any defendant who intends to controvert the right of the plaintiff to sue as executor, or as trustee, or in any other representative capacity ... shall deny the same in the answer specifically.” Conn. Prac. Bk. § 10-46, The Answer; General and Special Denial (Connecticut Practice Book (2023 Edition).

The plaintiff further cites to Estate of Tapia v. Burns, 10 Conn. L. Rptr. 91, 92 (Conn. Super. Ct. Sept. 20, 1993), and notes that Connecticut has held that, “[a]ny attack on the capacity in which the plaintiff undertook to sue should have been made in preliminary pleadings or in the defendant’s answer.” McCoy v. Raucci, 156 Conn. 115, 117, 239 A.2d 689 (1968). The plaintiff argues further that “the failure of an out of state executor to obtain ancillary administration in Connecticut does not implicate subject matter jurisdiction, but, rather, must be specially denied by the defendant. Witsoe v. AJAX Elec. Co., No. CV125029712, 2013 WL 6171424, at 5 (Conn. Super. Ct. Nov. I, 2013)”29.

The court notes that a fair reading of McCoy is inapposite and reflects that the court was faced not with a challenge to its subject matter jurisdiction but, rather, “The attack was upon the capacity in which the plaintiff undertook to sue (as executor vs. ancillary administrator) rather than an attack upon the jurisdiction of the court.” McCoy v. Raucci, 239 A.2d 689, 156 Conn. 115 (1968) (emphasis added). Moreover, in Witsoe the court (Bellis, J) acknowledged, in a case with a properly appointed out-of-state executor, that “there exists a conflicting line of cases that treats a challenge to an executor’s capacity to sue as a mere special defense that must be pleaded in accordance with Practice Book § 10–46”30. In Tapia and Witsoe the plaintiffs had been appointed as authorized executors of the decedent’s estate in New York and New Hampshire, respectively. In McCoy, the plaintiff had been appointed as an executor in Canada and in Connecticut. In the instant matter, Mr. Bherwani was not appointed as executor of his son’s estate. He was appointed with limited authority to act.

The court is persuaded by the line of cases cited by Judge Bellis requiring ancillary administration in Connecticut by a duly appointed out-of-state executor to bring claims in Connecticut. Hobart v. Connecticut Turnpike Co., 15 Conn. 145, 147 (1842), Holcomb v. Phelps, 16 Conn. 127, 134–35 (1844), Equitable Trust Co. v. Plume, 92 Conn. 649, 654, 103 A. 940 (1918). See also Perrine v. Ackerly, Superior Court, Judicial District of Stamford, Docket No. CV–85–09078846–S (December 19, 1990) (3 Conn. L. Rptr. 67) (as matter of subject matter jurisdiction, foreign executor must receive ancillary appointment), Cramer v. Tepp, 6 Conn. Supp. 320, 322 (1938). As noted further by Judge Bellis, “complicating matters, none of the cases in the McCoy line acknowledge that Hobart, Holcomb, and Equitable Trust Co. represent conflicting authority.” Witsoe at fn. 4.

The failure of the defendant to comply with Conn. Prac. Bk. § 10-46 does not negate the obligation of the court to address motions that invoke questions as to the subject matter jurisdiction of the court. Although not necessary to the court’s decision in this matter, the court agrees with the analysis of the defendant that a properly empowered administrator of a New York estate may proceed with an action in the Mohegan Court without opening ancillary administration in Connecticut given the wording of Mohegan Code. MTC § 3-247 provides, in pertinent part, that:

“Sec. 3-247. - Persons under disability.

The time for filing a Complaint under Section 3-246 shall be extended up to sixty (60) days immediately following the appointment by a court of competent jurisdiction of a legal representative for a person who has sustained an injury otherwise cognizable pursuant to this Code, when:

(a) Such person dies after the Accrual date and before the deadline for filing a complaint ...” (Emphasis added)

Had the Mohegan Tribe sought to limit a “court of competent jurisdiction” to Connecticut-only probate courts it could have done so; it did not.

Mr. Bherwani, as voluntary administrator of his son’s estate, did not have authority to bring or maintain the instant action.

 

Wrongful Death Claims

Although not necessary to this court’s decision, in the event of likely future litigation, the court addresses the status of wrongful death claims brought pursuant to C.G.S 52-555.

Mohegan Tribal Code § 3-52 provides:

(a) The substantive law of The Mohegan Tribe for application by the Gaming Disputes Court shall be:

(1) The law as set forth in any Mohegan Tribal ordinances or regulations;

(2) The General Statutes of Connecticut, as may be amended from time to time, are hereby adopted as and declared to be the positive law of The Mohegan Tribe for application by the Gaming Disputes Court, except as such statutes are in conflict with Mohegan Tribal Law;

(3) The common law of the State of Connecticut interpreting the positive law adopted in Subsection (2) above, which body of law is hereby adopted as and declared to be the common law of The Mohegan Tribe for application by the Gaming Disputes Court, except as such common law is in conflict with Mohegan Tribal Law.” (Ord. No. 95-4, 7-20-1995).

Connecticut General Statute C.G.S. § 52-555 provides in relevant part:

“In any action surviving to or brought by an executor or administrator for injuries resulting in death, whether instantaneous or otherwise, such executor or administrator may recover from the party legally at fault for such injuries....”

No Mohegan ordinance or regulation specifically addresses wrongful death claims under C.G.S. § 52-555. The court recognizes the argument that the failure of the Mohegan Tribe to adopt C.G.S. § 52-555, in toto, suggests that wrongful death claims cannot be maintained in the Mohegan Tribal Court.31 The court notes that Ordinance 98-1 replaced ordinance 96-2, and provided language applicable to the establishment of the Mohegan Torts Code. Ordinance 96-2 defined “injury” as “death, harm to a person, or damage to the loss of property which, if inflicted by a person under Connecticut state law or tribal law, would constitute a tort”.32 The instant matter, arising in May 2022, is governed by the Torts Code, Article IV of the Mohegan Code.33 The applicable code defines “injury” as “the invasion of a person’s legally protected interest, the loss or deprivation of a person or entity’s property; or physical, emotional, intellectual or psychological damage or harm sustained to a person (emphasis added)”.34 It further defines “non-economic damages” as “all non-pecuniary losses including, but not limited to a person’s physical, emotional, intellectual or psychological pain or suffering and loss of enjoyment of life (emphasis added)”35.

It is abundantly clear that despite the definitional change of “injury” between that found in Ordinance 96-2 and that found in MTC § 3-245, a cause of action may be maintained within the Mohegan Tribal Court for wrongful death (the ultimate “harm” and “loss of enjoyment of life”) pursuant to C.G.S. 52-555, and that such statute does not conflict with provisions of the Mohegan Tribal Code. Ordinance 96-2 specifically contemplated death claims and such claims are easily encompassed in the language set forth in the above-referenced MTC § 3-245 provisions. Accordingly, the court declines to accept the plaintiff’s argument that actions brought pursuant to C.G.S. § 52-555 cannot be maintained in the Mohegan Gaming Disputes Trial Court, despite arguments that C.G.S. § 52-555 contains provisions regarding damage elements and time limits for bringing claims that are different from MTC similar provisions. Almost every tort claim brought in the Mohegan Gaming Disputes Trial Court likely contains differences from similar claims brought in Connecticut courts as to damages or time limitations, e.g. Connecticut negligence actions provide for a 2-year limit to bring a claim with unlimited damages; a similar claim brought in Mohegan Gaming Disputes Trial Court is subject to a 1-year limitation with a cap on damages. Moreover, if one accepts the premise of the plaintiff’s argument, i.e. C.G.S. § 52-555 should not be recognized under the MTC, then no claims for wrongful death could be maintained within the Mohegan Tribal Court since claims for wrongful death were not recognized at common law.36

 

Decision

This case appears to present as a matter of first impression in the Mohegan Gaming Disputes Court. The underlying facts are heartbreaking and tragic. The ultimate issue is whether the plaintiff, as a voluntary New York administrator of his son’s estate, may bring a wrongful death action in this court absent specific authority to do so granted by either the New York Surrogate’s Court or a Connecticut Probate Court vested with jurisdiction in this matter. As set forth above, the court finds that Connecticut’s wrongful death statute (C.G.S. § 52-555) is not inconsistent with Mohegan Law and, as such, may be properly brought before this court. However, the plaintiff herein lacked the authority or legal standing to bring such a claim and, accordingly, the Motion to Dismiss must be granted.

 

Order

The Plaintiff, having failed to obtain the necessary authorization to act as administrator of his son’s estate, lacks standing to bring the instant matter.

WHEREFORE, the defendant’s Motion to Dismiss (#113) is GRANTED and the plaintiff’s Objection to Defendant’s Motion to Dismiss (#115) is DENIED.

All Citations
--- Am. Tribal Law ----, 2024 WL 413485

Footnotes
1	No. 100.
2	No. 103.
3	No. 107.
4	No. 110.
5	No. 113.
6	No. 115.
7	No. 118.
8	No. 120.
9	No. 121.
10	No. 122.
11	No. 123.
12	§ 20. Motion to Dismiss a. The motion to dismiss shall be used to assert: 1. Lack of jurisdiction over the subject matter; 2. Lack of jurisdiction over the person; 3. Insufficiency of process; 4. Insufficiency of service of process; 5. Improper venue. b. Each motion shall be filed with a supporting memorandum of law and supporting affidavits where appropriate. Any adverse party shall have thirty days, unless extended by the judicial authority, from the filing of the motion to dismiss to respond to the motion to dismiss by filing and serving a memorandum of law in opposition and, if appropriate, supporting affidavits as to necessary facts not apparent on the record. c. Any claim of lack of jurisdiction over the person or improper venue or insufficiency of process or insufficiency of service of process is waived if not raised by a motion to dismiss filed within 30 days of the defendant’s appearance. d. Whenever it is found, after suggestion of the parties or otherwise, that the Court lacks subject matter jurisdiction, the Court shall dismiss the action (emphasis added).
13	No. 113, p. 3.
14	No. 100, Accord No, 113, p.2 and No 115, p.1.
15	The defendant’s argument is premature. The court does not address this issue because it is not before the court at this time.
16	No. 118, p. 2.
17	No. 118, p. 4.
18	The defendant brings to the court’s attention (No. 123 p.1, Exhibit A), for which the court expresses its appreciation, that an application for limited administration was filed in the Nassau County Surrogate Court on May 5, 2023 and granted on June 15, 2023, suggesting that such application amounts to an admission that the Plaintiff had no authority to bring the present claim. The court declines to so find. The cited application was made by Kamal Bherwani, not Kamal Bherwani as Voluntary Administrator of the Estate of Ethan Bherwani, as indicated by the defendant. There is no evidence before this court that Kamal Bherwani, voluntary administrator, has been replaced by Kamal Bherwani, limited administrator. This court’s docket reflects that there has been no Motion to Substitute a limited administrator for the voluntary administrator. Whether the plaintiff is simply positing the case for further litigation remains to be seen.
19	No. 123, p. 3.
20	No. 123, p. 10.
21	No. 115, p. 2-3.
22	No. 120, p. 2-3.
23	No. 120, p. 3.
24	No. 122, p. 2.
25	The court greatly appreciates the high quality, professional arguments presented during two hearings and 6 briefs totaling 90 pages. These often creative arguments ranged from the plaintiff arguing that C.G.S. § 52-555 was in conflict law with Mohegan law (No. 115, p. 4.); that parents may institute an action on behalf of a decedent (No. 115, p. 5); that exercise by a Connecticut Probate Court over this estate requires a finding that the Mohegan Tribe is subject to suit in Connecticut (No. 115, p. 11); that a voluntary administrator meets the requirements of Mohegan Law (No. 120, p. 3); that the jurisdiction reach of a Connecticut Probate Court does not extend to tribal land (No. 122, p. 2); that wrongful death claims are recognized under Mohegan common law and not C.G.S. § 52-555 (albeit with appointed executors/administrators) (No. 122, p. 7).; and that there is no express language in C.G.S. § 52-555 indicating a voluntary administrator is not authorized to maintain an action (No. 122, p. 4.). In contrary fashion, the defendant argues that C.G.S. § 52-55 is the only vehicle for a wrongful death action and that such an action is not in conflict with Mohegan Law (No. 118, p. 2); that time limits and damage limits under Mohegan law to do not conflict with the remedial purposes of C.G.S. § 52-555 (No. 118, p. 4.); that plaintiff’s appointment as a voluntary administrator under New York law does not equate with appointment as a temporary administrator under Connecticut law (No. 118, p. 7); that neither the Connecticut Probate Court or New York Surrogate’s Court has jurisdiction over the Mohegan Tribe but that this court recognizes the appointment of a qualified administrator pursuant to MTC § 1-5 (No. 118. p. 8); that the Connecticut Probate Court lacks jurisdiction over the plaintiff’s estate because it does not meet the elements of the Connecticut statute (No. 123, p. 6); that the lack of definition of “administrator” in the MTC suggests that this court then follows Connecticut law definitions (No. 123, p. 10); and that there is no individual right of action under C.G.S. § 52-555 (no. 123, p. 11).
26	As noted by the defendant, our courts have long held that “[u]nder General Statutes § 52-555, standing to bring a wrongful death action is thus conferred only upon either an executor or an administrator.” Isaac v. Mount Sinai Hospital, 3 Conn. App. 598, 601, 490 A.2d 1024, cert. denied, 196 Conn. 807, 494 A.2d 904 (1985). See also, Ecker v. Town of West Hartford, 530 A.2d 1056, 205 Conn. 219 (Conn. 1987).
27	Luccese v. Lin, 76 Misc. 3d 1212, 174 N.Y.S.3d 568 (2022). As noted by the court in its decision, “the voluntary administrator is a fiduciary, albeit a restricted one. The voluntary administrator has the powers, rights, and duties of an administrator vis à vis the decedent’s personal property. She can settle claims against the estate up to $30,000 (EPTL 11-1.1(b) (13); See Matter of Essenberg, 120 Misc.2d 993 [Surrogate’s Court, Suffolk Co 1983] (voluntary administrator settled action by plaintiff against estate stemming from injuries caused by decedent). She cannot, however, enforce a claim for the decedent’s wrongful death or personal injury.”
28	See: No, 115, Exhibits A-C. Plaintiff’s authority was limited to that as a voluntary administrator with authority to obtain medical records from Hartford Hospital and WW Backus Hospital, and as otherwise authorized.
29	No. 120, p.4.
30	Witsoe v. AJAX Elec. Co., No. CV125029712, 2013 WL 6171424, at *5 (Conn. Super. Ct. Nov. 1, 2013). The court notes that the defendant in the instant matter did not raise such a special defense. See, No., 110.
31	By analogy, the court is aware of Mohegan case law rejecting dram shop claims prior to the enactment of the MTC Dram Shop Act (MTC § 352) since dram shop claims were not recognized at common law. As noted by Judge Eagan in Fang v Mohegan Tribal Gaming Authority, GDTC-T-08-110-FOE, 7 Am. Tribal Law 481 (Mohegan Gaming Disputes Ct. 2008), such claims would be in derogation of Mohegan sovereignty (See: MTC § 350 (c)). Similarly, the court recognizes the well- reasoned decisions in Dell v. Mohegan Tribal Gaming Authority and Gusikoff v. Mohegan Tribal Gaming Authority acknowledging that the Mohegan Tribe has not waived its sovereign immunity and adopted the Connecticut Products Liability Act as to actions against the MTGA. Dell v. Mohegan Tribal Gaming Authority, 6 G.D.R. 159, GDTC-T-18-140-PMG, 17 Am. Tribal Law 135 (Mohegan Gaming Disputes Ct. Jan 23, 2020), Gusikoff v. Mohegan Tribal Gaming Authority, 6 G.D.R. 151, GDTC-T-18-126-JAM, 16 Am. Tribal Law 426 (Mohegan Gaming Disputes Ct. Nov 26, 2019)
32	Ordinance 98-1. § 2(i).
33	Ordinance No. 2005-02 and amendments thereto.
34	MTC § 3-245.
35	MTC § 3-245.
36	Ecker v. Town of West Hartford, 205 Conn. 219, 530 A.2d 1056 (1987). Accord, Ladd v. Douglas Trucking Co., 203 Conn. 187, 191-92, 523 A.2d 1301 (1987), “reiterated the one hundred and thirty-one year adherence by the courts of this state to the almost unanimously held principle of law, as first proclaimed by Lord Ellenborough in the case of Baker v. Bolton, 1 Camp. 493, 170 Eng. Rep. 1033 (K.B. 1808), that there is no civil right of action at common law for damages resulting from the death of a human being. See Grody v. Tulin, 170 Conn. 443, 448, 365 A.2d 1076 (1976); Foran v. Carangelo, 153 Conn. 356, 359, 216 A.2d 638 (1966); Floyd v. Fruit Industries, Inc., 144 Conn. 659, 668-69, 136 A.2d 918 (1957); Baker v. Baningoso, 134 Conn. 382, 385, 58 A.2d 5 (1948); Lucier v. Hittleman, 125 Conn. 635, 636, 7 A.2d 647 (1939); Willoughby v. New Haven, 123 Conn. 446, 454, 197 A. 85 (1937); Flynn v. New York, N.H. & H.R. Co., 111 Conn. 196, 200, 149 A. 682 (1930), aff’d, 283 U.S. 53, 51 S.Ct. 357, 75 L.Ed. 837 (1931); Korb v. Bridgeport Gas Light Co., 91 Conn. 395, 397, 99 A. 1048 (1917); DeMartino v. Siemon, 90 Conn. 527, 528, 97 A. 765 (1916); Kling v. Torello, 87 Conn. 301, 306, 87 A. 987 (1913); Radezky v. Sargent & Co., 77 Conn. 110, 112, 58 A. 709 (1904); Broughel v. Southern New England Telephone Co., 72 Conn. 617, 620, 45 A. 435 (1900); Goodsell v. Hartford & New Haven R.R. Co., 33 Conn. 51, 55 (1865); Murphy v. New York & New Haven R.R. Co., 30 Conn. 184, 188 (1861); Connecticut Mutual Life Ins. Co. v. New York. & New Haven R.R. Co., 25 Conn. 265, 273 (1856); Isaac v. Mount Sinai Hospital, 3 Conn.App. 598, 601-602, 490 A.2d 1024, cert. denied, 196 Conn. 807, 494 A.2d 904 (1985); Shattuck v. Gulliver, 40 Conn.Sup. 95, 97, 481 A.2d 1110 (1984); Leland v. Chawla, 39 Conn. Sup. 8, 10, 467 A.2d 439 (1983); Cofrancesco v. Smith, 29 Conn.Sup. 139, 141-42, 275 A.2d 608 (1971); Gorke v. Le Clerc, 23 Conn.Sup. 256, 257-58, 181 A.2d 448 (1962); Perlstein v. Westport Sanitarium Co., 11 Conn.Sup. 117, 119 (1942); see also D. Wright & J. Fitzgerald, Connecticut Law of Torts (2d Ed.) § 171(e), p. 367. With only a few exceptions, courts in America have almost universally accepted, and continue to accept, “the rule that a civil action for wrongful death was not recognized at common law, and that no such cause of action may be maintained except under the terms and authority of a statute.” 61 A.L.R.3d 906, 909, and authorities cited therein, 909-10 n. 3, and Sup. 59. For recent federal court cases applying state law, see Garland v. Herrin, 724 F.2d 16, 20 (2d Cir. 1983) (New York law); Fisk v. United States, 657 F.2d 167, 170 (7th Cir. 1981) (Indiana law); Aspinall v. McDonnell Douglas Corporation, 625 F.2d 325, 327 (9th Cir. 1980) (California law); Theberge v. Transportation Systems, 611 F.Supp. 368, 371 (D.N.H. 1984) (New Hampshire law); Jaeger v. Raymark Industries, Inc., 610 F.Supp. 784, 788 (E.D. Wis. 1985) (Wisconsin law); Miers v. Central Mine Equipment Co., 604 F.Supp. 502, 508 (D. Neb. 1985) (Nebraska law); Bethel v. Janis, 597 F.Supp. 56, 59 (D.S.D. 1984) (South Dakota law); Ritter v. Aspen Skiing Corporation, 519 F.Supp. 907, 908 (D. Colo. 1981) (Colorado law); Higgins v. Washington Metropolitan Area Transit Authority, 507 F.Supp. 984, 986 (D.D.C. 1981) (District of Columbia law); Holzsager v. Warburton, 452 F.Supp. 1267, 1270 (D.N.J. 1978) (New Jersey law); Matter of Tonty, 52 B.R. 18, 19 (Bankr.W.D. Pa. 1985). For recent state court decisions, see Greater Southeast Community Hospital v. Williams, 482 A.2d 394, 396 (D.C. App. 1984); Everett v. Trunnell, 105 Idaho 787, 789, 673 P.2d 387 (1983); Andis v. Hawkins, 489 N.E.2d 78, 81 (Ind. App. 1986); Ascani v. Hughes, 470 So.2d 207, 209 (La. App. 1985); Stiffelman v. Abrams, 655 S.W.2d 522, 536 (Mo. 1983); Johnson v. Marias River Electric Co-op, Inc., 687 P.2d 668, 670 (Mont. 1984); In re Estate of Infant Fontaine, 128 N.H. 695, 519 A.2d 227, 229 (1986); Young v. Robertshaw Controls Co., 104 A.D.2d 84, 88, 481 N.Y.S.2d 891 (1984); Taylor v. Black & Decker Mfg. Co., 21 Ohio App.3d 186, 188, 486 N.E.2d 1173 (1984); Gleason v. Oklahoma City, 666 P.2d 786, 788-89 (Okla. App. 1983); Taylor v. Parr, 678 S.W.2d 527, 529 (Tex. App. 1984); Weiss v. Regent Properties, Ltd., 118 Wis.2d 225, 230, 346 N.W.2d 766 (1984); see also 25A C.J.S. 582-84 n. 69, Death § 13, and Sup. 77; 22 Am.Jur.2d 606 n. 3, Death § 1.”