Karatihy v. Commonwealth Flats Development Corp. (Lawyers Weekly No. 11-114-13)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 12‑P‑1353 Appeals Court RACHID KARATIHY vs. COMMONWEALTH FLATS DEVELOPMENT CORP.[1] No. 12‑P‑1353. Suffolk. June 4, 2013. ‑ September 18, 2013. Present: Cypher, Graham, & Agnes, JJ. Employment, Termination, Retaliation. Practice, Civil, Prima facie case. Civil action commenced in the Superior Court Department on November 24, 2009. The case was heard by Geraldine S. Hines, J., on a motion for summary judgment, and a motion to reconsider was considered by her. Scott Adams for the plaintiff. Andrew C. Pickett (Kevin M. Sibbernsen with him) for the defendant. CYPHER, J. A Superior Court judge granted summary judgment in favor of Commonwealth Flats Development Corp., doing business as Seaport Hotel and World Trade Center (hotel), after Rachid Karatihy filed a complaint alleging retaliation by the hotel. Karatihy alleged that the hotel terminated him in retaliation for being a named plaintiff in a lawsuit claiming the hotel violated G. L. c. 149, §§ 148 & 150 (Wage Act), and c. 149, § 152A (Tips Act). The judge ruled in favor of the hotel because Karatihy did not meet his burden on causation, and thus would be unable at trial to prove an essential element of the retaliation claim. Karatihy maintains that there are disputes of material fact and there was sufficient evidence for a jury to find a causal connection and pretext for his termination, and therefore summary judgment was not proper. We disagree and affirm summary judgment for the hotel. Background. We summarize the facts in the light most favorable to the nonmoving party, Karatihy, reserving some facts for later discussion. See Chervin v. Travelers Ins. Co., 448 Mass. 95, 96 (2006). Karatihy worked as a banquet server at the hotel from 2000 until his termination in 2009. As a server, his duties included setting up for events and serving food and beverages. Because attendance is imperative to the job and efficiency is key in serving its customers, the hotel implemented an attendance policy. Employees are required to “call-out” and notify the hotel at least four hours in advance if they will be late or will miss a shift so the hotel can find a replacement. All of the “call-outs” are recorded and tracked for each employee. The attendance policy also placed limits on the number of allowable absences in a given period. This attendance […]
Categories: News Tags: 1111413, Commonwealth, Corp., Development, Flats, Karatihy, Lawyers, Weekly
Commonwealth v. Horne (Lawyers Weekly No. 10-171-13)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC‑11304 COMMONWEALTH vs. DANIEL HORNE. Hampden. May 7, 2013. ‑ September 16, 2013. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Homicide. Malice. Wanton or Reckless Conduct. Joint Enterprise. Practice, Criminal, Instructions to jury, Double jeopardy. Evidence, Joint enterprise, Impeachment of credibility, Exculpatory. Witness, Impeachment. Constitutional Law, Double jeopardy. Firearms. Indictments found and returned in the Superior Court Department on October 28, 2009. The cases were tried before C. Jeffrey Kinder, J. The Supreme Judicial Court granted an application for direct appellate review. Jane Larmon White, Committee for Public Counsel Services, for the defendant. Marcia B. Julian, Assistant District Attorney, for the Commonwealth. DUFFLY, J. At approximately 1:30 A.M. on October 18, 2009, eight bullets were fired at the front room window of a first-floor apartment in Springfield; the window was covered by venetian blinds and dark curtains. Four of those bullets struck and killed nineteen year old Brittany Perez as she stood near the window. The defendant, who was seen fleeing from the scene of the shooting, was convicted by a Superior Court jury of murder in the second degree. He was convicted also of possession of ammunition without a firearm identification (FID) card and of two separate counts of unlicensed carrying of a rifle outside his residence or place of business. On appeal, the defendant contends that a number of errors at trial require reversal of his convictions. He asserts error in the judge’s decision not to instruct the jury on involuntary manslaughter; the judge’s instruction on joint venture liability; and the prosecutor’s improper impeachment of a defense witness’s credibility. In addition, the defendant argues that the two convictions of the unlicensed carrying of a rifle are duplicative. We conclude that the judge erred in declining to instruct the jury on involuntary manslaughter, where the jury reasonably could have found that the defendant did not know the room was occupied when he fired the rifle at the window and, therefore, that the defendant’s conduct was wanton or reckless but not necessarily conduct that, in the circumstances known to the defendant, a reasonable person would have known created a plain and strong likelihood that death would follow. Consequently, the defendant’s conviction of murder in the second degree cannot stand. We reject the […]
Schifano v. Razzaboni, et al. (Lawyers Weekly No. 10-173-13)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC‑11343 FRANK SCHIFANO v. HENRY RAZZABONI & another,[1] trustees.[2] September 16, 2013. Supreme Judicial Court, Superintendence of inferior courts. Contempt. Practice, Civil, Contempt, Appeal. Frank Schifano appeals from a judgment of a single justice of this court denying his petition for relief under G. L. c. 211, § 3. He challenges an order of a judge in the District Court that, among other things, declared him to be in contempt of a prior order that he make payments toward an outstanding judgment. The judge found that Schifano had the ability to pay. She also ordered that Schifano be jailed if he failed to pay a certain amount by a given date. It appears, however, that although Schifano has not paid that amount, he has not been jailed. We affirm the judgment. In supplementary process proceedings such as these, “[t]here shall be no appeal from any judgment, order or sentence.” G. L. c. 224, § 18. While this does not deprive us of our extraordinary power under G. L. c. 211, § 3, “we will rarely employ our superintendence power to review rulings where the Legislature has expressly stated that there shall be no appeal.” Birchall, petitioner, 454 Mass. 837, 846 (2009) The Birchall case was “precisely the kind of rare case that may justify the exercise of superintendence power” because there, the petitioner had been incarcerated for his contempt. Id. at 847. That is not the case here, as Schifano has not been incarcerated. The single justice neither erred nor abused his discretion by declining to exercise this court’s extraordinary superintendence power in these circumstances. Judgment affirmed. Jordan L. Shapiro for the petitioner. Lawrence P. Murray for the respondent. [1] Alfred Razzaboni. [2] Of Winter Street Realty Trust. Full-text Opinions
Afrasiabi v. Commonwealth (Lawyers Weekly No. 10-174-13)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC‑11389 KAVEH L. AFRASIABI vs. COMMONWEALTH. September 17, 2013. Supreme Judicial Court, Superintendence of inferior courts. The petitioner, Kaveh L. Afrasiabi, appeals from a judgment of a single justice of this court denying his petition pursuant to G. L. c. 211, § 3. We affirm. Afrasiabi was charged in a complaint with criminal harassment in violation of G. L. c. 265, § 43A (a). He thereafter filed numerous motions in the District Court including, among other things, several motions to dismiss; a motion for a change of venue; motions to compel documents; and a motion for a “show cause” hearing, all of which were denied. Afrasiabi subsequently filed his G. L. c. 211, § 3, petition in the county court asking the court to stay the trial; to change venue; to compel discovery; and to order a “probable cause” hearing.[1] The single justice denied the petition. This appeal is subject to S.J.C. Rule 2:21, as amended, 434 Mass. 1301 (2001), which requires the appellant to file “a memorandum of not more than ten pages . . . in which the appellant must set forth the reasons why review of the trial court decision cannot adequately be obtained on appeal from any final adverse judgment in the trial court or by other available means.” S.J.C. Rule 2:21 (2). Afrasiabi has failed to comply with the requirements of the rule. As an initial matter, he has filed a full brief pursuant to Mass. R. A. P. 16, as amended, 428 Mass. 1603 (1999), rather than a preliminary memorandum in compliance with rule 2:21.[2] Furthermore, to the extent that he even addresses the issue of adequate appellate review, he argues only that there are discrepancies in the Commonwealth’s case and that it would be unfair to subject him to a trial without first holding a hearing. Even if Afrasiabi were entitled to such a hearing, the failure to hold one, and the trial court’s denial of his request for one, are matters that can be addressed in a direct appeal. See Commonwealth v. Irick, 58 Mass. App. Ct. 129, 132-133 (2003), citing Commonwealth v. Leger, 52 Mass. App. Ct. 232, 242 (2001). The single justice did not err or abuse her discretion in denying relief under G. L. c. 211, § 3. Judgment affirmed. Kaveh L. Afrasiabi, pro se, submitted a […]
Commonwealth v. Mistretta (Lawyers Weekly No. 11-112-13)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 12‑P‑152 Appeals Court COMMONWEALTH vs. BRET MISTRETTA. No. 12‑P‑152. September 16, 2013. Assault and Battery by Means of a Dangerous Weapon. Assault and Battery. Intentional Conduct. Wanton or Reckless Conduct. Practice, Criminal, Instructions to jury. After a Superior Court jury trial, the defendant was convicted of assault and battery by means of a dangerous weapon, and assault and battery as a lesser included offense of assault and battery causing serious bodily injury. These charges stemmed from two episodes (in June and September of 2010) in which arguments between the defendant and the victim (his live-in girlfriend) escalated into violence.[1] The jury were instructed on both intentional assault and battery and reckless assault and battery. In this appeal, the defendant contends that the trial judge was required, sua sponte, to give a specific unanimity instruction as to the form of assault and battery on which the jury found guilt, and to provide special verdict slips on which to identify the ground for their decision.[2] He acknowledges that his claim was not preserved and that our review is confined to whether any error created a substantial risk of a miscarriage of justice. See Commonwealth v. Arias, 78 Mass. App. Ct. 429, 431 (2010). Because specific unanimity was not required in the circumstances, there was no error, and therefore no substantial risk of a miscarriage of justice. “The classic definition of assault and battery is ‘the intentional and unjustified use of force upon the person of another, however slight.’ The law recognizes, however, an alternative form of assault and battery in which proof of a wilful, wanton and reckless act which results in personal injury to another substitutes for (or in some cases is said, with some imprecision, to allow the ‘inference’ of) intentional conduct.” Commonwealth v. Welch, 16 Mass. App. Ct. 271, 274 (1983) (citations omitted). These alternative forms of assault and battery have, on occasion, been referred to as “two separate aspects” of the crime, Commonwealth v. Burno, 396 Mass. 622, 625 (1986), or as two “theories” of the crime, Commonwealth v. Porro, 458 Mass. 526, 529 (2010). Regardless of the label used, however, the two forms of assault and battery are closely related. In the case of reckless assault and battery, actual intent to commit the crime is […]
Scheffler v. Board of Appeal on Motor Vehicle Liability Policies and Bonds (Lawyers Weekly No. 11-113-13)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 12‑P‑1616 Appeals Court THOMAS SCHEFFLER vs. BOARD OF APPEAL ON MOTOR VEHICLE LIABILITY POLICIES AND BONDS. No. 12‑P‑1616. September 16, 2013. Board of Appeal on Motor Vehicle Liability Policies and Bonds. Registrar of Motor Vehicles. Motor Vehicle, Board of Appeal on Motor Vehicle Liability Policies and Bonds, Operating under the influence. The plaintiff, Thomas Scheffler, appeals from a decision by a judge of the Superior Court allowing the motion of the defendant, the Board of Appeal on Motor Vehicle Liability Policies and Bonds (board), for judgment on the pleadings. The board’s decision affirmed the Registrar of Motor Vehicles’ (registrar) determination that the plaintiff’s assignment, in Connecticut, to a pretrial alcohol education program following his arrest in that State on what amounts to operating under the influence of intoxicating liquor (OUI) was a “like offense” within the meaning of G. L. c. 90, § 24, and that the Connecticut offense should be added to the plaintiff’s driving history.[1] 1. Background. On April 24, 2009, the plaintiff was arrested and charged with operating under the influence of liquor, in violation of Conn. Gen. Stat. § 14-227a (2013).[2] Following the plaintiff’s successful completion of a pretrial alcohol education diversion program, see Conn. Gen. Stat. § 54-56g (2013), the Connecticut charge was dismissed. However, Connecticut suspended the plaintiff’s license for six months as a result of his refusal to comply with a breathalyzer test. On June 18, 2009, the plaintiff received notification from the registrar that his license would be suspended, beginning July 18, 2009, for one year based on the Connecticut OUI charge. Later, the registrar learned that the plaintiff’s license was suspended in Connecticut for the breathalyzer refusal and not OUI. However, the plaintiff’s Massachusetts driving record reflects the Connecticut incident for both the breathalyzer refusal and the OUI dismissal, as well as his successful completion of the alcohol education program. The plaintiff appealed to the board, and on December 28, 2010, the board upheld the registrar’s decision to add the Connecticut incident to the plaintiff’s driving history. A Superior Court judge affirmed the board’s decision, concluding that the registrar’s actions were proper. 2. Discussion. Our review does not “extend to examining the weight of the evidence to determine whether the Superior Court’s decision — either upon its own findings of […]
Franklin Office Park Realty Corp. v. Commissioner of the Department of Environmental Protection (Lawyers Weekly No. 10-172-13)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC‑11334 FRANKLIN OFFICE PARK REALTY CORP. vs. COMMISSIONER OF THE DEPARTMENT OF ENVIRONMENTAL PROTECTION. Worcester. May 9, 2013. ‑ September 16, 2013. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Department of Environmental Protection. Administrative Law, Agency’s interpretation of statute, Regulations, Judicial review. Practice, Civil, Review of administrative action. Environment, Air pollution. Asbestos. Statute, Construction. Regulation. Words, “Wilful.” Civil action commenced in the Superior Court Department on March 22, 2011. The case was heard by John S. McCann, J., on a motion for judgment on the pleadings. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Louis M. Dundin, Assistant Attorney General, for the defendant. Paul E. White for the plaintiff. DUFFLY, J. The plaintiff, Franklin Office Park Realty Corp. (Franklin), challenges the assessment of a penalty in the amount of $ 18,225, imposed by the Department of Environmental Protection (DEP) for improper handling and disposal of roof shingles that contained asbestos. Franklin argues that, pursuant to G. L. c. 21A, § 16 (administrative penalties act), it was entitled to a notice of noncompliance and the opportunity to cure any violations before a penalty was imposed. The commissioner of the DEP (commissioner) accepted the recommendation of a hearing officer that he affirm the penalty on the ground that Franklin’s failure to comply fell within one of six exceptions to the notice requirement because it was “willful and not the result of error” (wilfulness exception), see G. L. c. 21A, § 16, which he interpreted as requiring only a showing of “the intent to do an act that violates the law if done.” Franklin sought judicial review pursuant to G. L. c. 30A, § 14; a judge of the Superior Court determined some of the facts found by the hearing officer to be unsupported by substantial evidence, and that the DEP’s interpretation of G. L. c. 21A, § 16, was unreasonable and thus not entitled to deference. DEP appealed, and we transferred the case to this court on our own motion. We conclude that the language “willful and not the result of error” in G. L. c. 21A, § 16, when considered in the context of the statutory scheme and the Legislature’s intent, clearly requires a showing that the party who has not complied with the law knew or should […]
Categories: News Tags: 1017213, Commissioner, Corp., department, Environmental, Franklin, Lawyers, Office, Park, Protection, Realty, Weekly
Aleo v. SLB Toys USA, Inc., et al. (Lawyers Weekly No. 10-169-13)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC‑11294 MICHAEL ALEO[1] vs. SLB TOYS USA, INC.,[2] & others.[3] Essex. May 6, 2013. ‑ September 13, 2013. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Evidence, Hearsay, Police report, Spontaneous utterance, Medical report, Expert opinion. Negligence, Defective product, Expert opinion, Standard of care, Gross negligence, Wrongful death. Warranty. Damages, Punitive. Civil action commenced in the Superior Court Department on October 31, 2008. The case was tried before Howard J. Whitehead, J. The Supreme Judicial Court granted an application for direct appellate review. Gregory T. Parks, of Pennsylvania (John J. McGivney with him) for Toys R Us, Inc., & another. W. Thomas Smith (Benjamin R. Zimmermann with him) for the plaintiff. The following submitted briefs for amici curiae: Debra R. White, of Virginia, & Ashley C. Parrish & Karen F. Grohman, of the District of Columbia, for Retail Litigation Center, Inc. Frederick B. Locker, of New York, & Thomas E. Peisch & Christopher K. Sweeney for Toy Industry Association, Inc. Hugh F. Young, Jr., of Virginia, John M. Thomas, of Michigan, & David R. Geiger & Joseph P. Lucia for Product Liability Advisory Council, Inc. Thomas B. Drohan & Carl Valvo for Retailers Association of Massachusetts. Christopher P. Flanagan & Christopher J. Seusing for Massachusetts Defense Lawyers Association. Mary Alice McLarty & Jeffrey White, of the District of Columbia, & Timothy C. Kelleher & Thomas R. Murphy for American Association for Justice & another. LENK, J. In 2006, while visiting relatives in Andover, twenty-nine year old Robin Aleo attempted to use an inflatable swimming pool slide that had been imported and sold by Toys “R” Us, Inc., and Toysrus.com, LLC (collectively, Toys R Us). She slid down head first; when she reached the bottom of the slide, it collapsed, and her head struck the concrete deck of the swimming pool through the fabric of the slide. Robin’s upper two cervical vertebrae fractured, resulting in quadriplegia. She died the following day, after her family, in accordance with her wishes, decided to withdraw life support. In 2008, Michael Aleo, Robin’s widower, filed an action in the Superior Court, both individually and as administrator of Robin’s estate, against SLB Toys USA, Inc., and Amazon.com, Inc., alleging negligence, breach of the implied warranty of […]
Commonwealth v. Sylvain (Lawyers Weekly No. 10-170-13)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC‑11400 COMMONWEALTH vs. KEMPESS SYLVAIN. Suffolk. May 6, 2013. ‑ September 13, 2013. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Controlled Substances. Alien. Constitutional Law, Plea, Assistance of counsel, Retroactivity of judicial holding. Due Process of Law, Plea, Assistance of counsel. Practice, Criminal, Plea, Assistance of counsel, Retroactivity of judicial holding. Complaint received and sworn to in the Dorchester Division of the Boston Municipal Court Department on April 17, 2007. A motion to vacate, filed on January 12, 2012, was heard by James W. Coffey, J., and a motion to reconsider was considered by him. The Supreme Judicial Court granted an application for direct appellate review. Wendy S. Wayne, Committee for Public Counsel Services, (Laura Mannion Banwarth with her) for the defendant. Cailin M. Campbell, Assistant District Attorney, for the Commonwealth. The following submitted briefs for amici curiae: Christopher N. Lasch, of Colorado, for Massachusetts Legal Academics. Sejal Zota, of North Carolina, & Paromita Shah, Todd C. Pomerleau, & Sarah Unger for National Immigration Project of the National Lawyers Guild & others. David M. Siegel for David M. Siegel & another. CORDY, J. In 2007, the defendant, Kempess Sylvain, a noncitizen lawfully residing in the United States, pleaded guilty to possession of a controlled substance, subjecting him to automatic deportation from the United States. After the defendant’s conviction was final, we decided Commonwealth v. Clarke, 460 Mass. 30, 34, 37, 45 (2011) (Clarke), which held that the rule announced in Padilla v. Kentucky, 130 S. Ct. 1473, 1483, 1486 (2010) (Padilla), regarding a criminal defendant’s right under the Sixth Amendment to the United States Constitution to accurate advice as to the deportation consequences of a guilty plea, was not a “new” rule under Teague v. Lane, 489 U.S. 288, 301, 310 (1989) (Teague), and therefore applied retroactively to cases on collateral review. Thereafter, the defendant filed a motion for a new trial seeking to vacate his guilty plea on the ground that his attorney was constitutionally deficient in erroneously advising him that there would be no deportation consequences stemming from his guilty plea. The defendant’s motion was denied, and he timely appealed. While the defendant’s appeal was pending, the United States Supreme Court decided Chaidez v. United States, 133 S. Ct. 1103, 1105, […]
State Room, Inc. v. MA-60 State Associates, L.L.C., et al. (Lawyers Weekly No. 11-111-13)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 12‑P‑1915 Appeals Court STATE ROOM, INC. vs. MA-60 STATE ASSOCIATES, L.L.C., & others.[1] No. 12‑P‑1915. Suffolk. May 10, 2013. ‑ September 13, 2013. Present: Grasso, Sikora, & Maldonado, JJ. Appraisal. Value. Landlord and Tenant, Rent. Civil action commenced in the Superior Court Department on October 6, 2011. A motion to dismiss was heard by Peter M. Lauriat, J. Colleen C. Cook for the plaintiff. Lawrence G. Green (Alexandra Capachietti with him) for the defendants. SIKORA, J. This appeal presents a dispute between the parties of a long-term commercial tenancy at a downtown Boston high-rise office building. The landlord parties consist of three corporations and a real estate investment trust identified in the margin;[2] we shall refer to them collectively as the landlord. The tenant is State Room, Inc. (State Room), a Massachusetts corporation. In 1990 and 1994, the parties’ predecessors in interest executed the governing lease documents (lease). Sixty State Street is a building of thirty-eight rentable floors. The space at issue occupies portions of the thirty-third and thirty-fourth floors. Over time it has served as a restaurant and as an event venue (i.e., as function rooms for business and social events). The principal issue on appeal is the enforceability of the current rental rate for the extension of the tenancy through the ten years from May 1, 2010, through April 30, 2020. In accordance with the terms of the lease, when the parties could not agree upon that figure, they submitted it to an appraisal process. In 2009, the designated appraisers calculated rates for the oncoming decade. In 2010, State Room objected to the rates as the product of mistaken information and flawed application of the appraisal criteria prescribed by the lease. When the appraisers declined to reconsider their computation, State Room brought suit in Superior Court seeking a judgment declaring the invalidity of the resulting rates and an order compelling a new appraisal. A judge of that court entered a judgment of dismissal in favor of the landlord. For the following reasons, we now affirm. Background. In review of a dismissal pursuant to Mass.R.Civ.P. 12(b)(6), 365 Mass. 754 (1974), we draw our facts from the allegations of the complaint and from its appended materials incorporated by reference. See Schaer v. Brandeis Univ., […]