Yarpah v. Bowden Hospitality Newton LLC, et al. (Lawyers Weekly No. 12-061-17)
COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT. 1684CV02746-BLS2 ____________________ ROLAND YARPAH, and all others similarly situated v. BOWDEN HOSPITALITY NEWTON LLC d/b/a Crowne Plaza Hotel, and INTERCONTINENTAL HOTELS GROUP RESOURCES, INC. ____________________ MEMORANDUM AND ORDER ON INTERNATIONAL HOTELS GROUP RESOURCES, INC.’S MOTION TO DISMISS and PLAINTIFF’S MOTION TO AMEND HIS COMPLAINT TO ADD NEW DEFENDANTS Roland Yarpah worked for several years at the Crowne Plaza Hotel in Newton, Massachusetts. He claims that the Hotel violated the Massachusetts Tips Act (G.L. c. 149, § 152A) by levying an eight percent “administrative charge” for functions where food or alcohol are served, not telling customers that this charge is not a tip paid to servers, and nonetheless keeping monies collected for this charge instead of paying them to wait staff and service bartenders. Yarpah sued Bowden Hospitality Newton LLC, which owns and operates the Hotel. He has also sued Intercontinental Hotels Group Resources, Inc. (IHGR). IHGR has moved to dismiss the claims against it with prejudice on the ground that the facts alleged do not plausibly suggest that IHGR charged, received, or had any control over the disputed charge. IHGR also showed that it has no contractual relationship with Bowden, and that Holiday Hospitality Franchising, LLC (“HHFL”) is the entity that gave Bowden license to do business as a Crowne Plaza Hotel. Yarpah then moved to amend the complaint to delete IHGR as a defendant and instead sue HHFL and its parent Six Continent Hotels, Inc. (“SCH”); both of these entities assert that Yarpah has no standing to sue them. Yarpah also seeks to add as a defendant Ward Childs, who manages the hotel for Bowden. The Court will allow the motion to dismiss the claims against IHGR with prejudice because Yarpah made clear at oral argument that he does not oppose that request. It will also permit Yarpah to add Childs as a defendant, without opposition. The Court will deny the request to add HHFL and SCH as defendants, however. Neither of them had any control over or received any revenue from the – 2 – administrative charges. As a result they owe no duty under the Tips Act, and Yarpah lacks standing to sue them. It would therefore be futile to amend the complaint to add them as defendants. See generally Johnston v. Box, 453 Mass. 569, 583 (2009) (“Courts are not required to grant motions to amend prior [pleadings] where ‘the proposed amendment … is futile.’ ” (quoting All Seasons Servs., Inc. v. Commissioner of Health & Hosps. of Boston, 416 Mass. 269, 272 (1993)); Thermo Electron Corp. v. Waste Mgmt. Holdings, Inc., 63 Mass. App. Ct. 194, 203 (2005) (affirming denial of motion for leave to assert counterclaim that […]
Williamson-Green v. Interstate Fire and Casualty Company (Lawyers Weekly No. 12-062-17)
COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT. 1684CV03141-BLS2 ____________________ MICHELLE WILLIAMSON-GREEN, as Administratrix of the Estate of James W. Williamson IV v. INTERSTATE FIRE AND CASUALTY COMPANY ____________________ MEMORANDUM AND ORDER DENYING DEFENDANT’S MOTION FOR PARTIAL JUDGMENT ON THE PLEADINGS James W. Williamson IV died from injuries sustained while he was inspecting a roof from a bucket lift that tipped over. His estate brought a wrongful death action against both the lift manufacturer and the company that had had rented out the lift, Equipment 4 Rent, Inc. (“E4R”). The jury found that the manufacturer and E4R were both negligent and awarded compensatory damages of $ 4.3 million. It also found that “E4R’s conduct was grossly negligent, willful, wanton, or reckless” and awarded additional punitive damages of $ 5.9 million, as allowed under G.L. c. 229, § 2. Interstate Fire and Casualty Company had insured E4R. It paid E4R’s share of the compensatory damages but refused to pay any part of the punitive damage award. In this action Plaintiff claims that Interstate failed to settle the claims against E4R after its liability had become reasonably clear. She asserts one claim on behalf of Mr. Williamson’s estate and four claims as E4R’s assignee. The assigned claims allege that E4R’s damages include “being exposed to an uncovered punitive damages award that would have been avoided had Interstate settled the Underlying Action.” Interstate has moved for judgment on the pleadings on the assigned claims. It argues that requiring an insurer to pay any part of a punitive damages award, even as consequential damages arising from the insurer’s failure to settle a meritorious claim, would be against public policy. The Court must DENY Interstate’s motion because Massachusetts law does not insulate an insurer from liability for damages incurred because its insured caused bodily injury, engaged in reckless or grossly negligent misconduct, or did both. The limitation on insurers’ liability sought by Interstate would be inconsistent with G.L. c. 175, § 47, cl. Sixth (b), which “codifies the entire public policy” of Massachusetts regarding the insurability of losses – 2 – resulting from reckless misconduct. Andover Newton Theological Sch., Inc. v. Cont’l Cas. Co., 409 Mass. 350, 353 n.2 (1991).1 1. Insurers’ Liability for Failing to Settle Claims. Once an insured’s liability for a particular claim has become reasonably clear, the insurer has a duty under Massachusetts law to make a fair offer to settle the claim and to do so promptly. This duty is imposed on all insurers by statute. See G.L. c. 176D, § 3(9)(f); Hopkins v. Liberty Mut. Ins. Co., 434 Mass. 556, 566-567 (2001). In many cases it is also an implicit part of the insurer’s contractual obligations. When an insurance policy […]
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Roth v. Newpol, et al. (Lawyers Weekly No. 11-069-17)
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 16-P-715 Appeals Court ROBERT ROTH[1] vs. JOSEPH NEWPOL, executor,[2] & another.[3] No. 16-P-715. Suffolk. March 15, 2017. – May 31, 2017. Present: Grainger, Massing, & Desmond, JJ. Devise and Legacy, Residuary interests, Intestacy, Construction against intestacy. Real Property, Tenancy in common. Words, “Monies.” Complaint filed in the Suffolk Division of the Probate and Family Court Department on January 23, 2014. The case was heard by Virginia M. Ward, J., on motions for summary judgment. Rebecca P. McIntyre for the defendants. Michael C. Fee (Scott M. Zanolli also present) for the plaintiff. MASSING, J. The only issue in this appeal is whether a residuary clause in the last will and testament of Evelyn Shakir, disposing of “any monies remaining in [her] estate,” encompassed her one-half interest in the house in the West Roxbury section of Boston (property) where her brother, Philip Shakir, lived before his death. The plaintiff, representing Philip’s estate, contends that Evelyn’s will did not devise her interest in the property and, therefore, that it passed by intestate succession to Philip, her only heir.[4] The defendants — Joseph Newpol, who is Evelyn’s executor, and her life partner, George Ellenbogen — contend that Evelyn’s one-half share in the property passed to Ellenbogen through the will’s residuary clause. On cross motions for summary judgment on the plaintiff’s complaint to quiet title, a judge of the Probate and Family Court held that Evelyn died intestate as to her interest in the property, that Philip acquired Evelyn’s interest by intestate succession, and that Philip’s estate now possesses sole legal title to the property. We affirm. Background. The property consists of the family home where Evelyn and Philip grew up. When their mother died in 1990, they each inherited a one-half interest in the property as tenants in common. Philip, who lived with his mother until her death, continued to reside at the property for the remainder of his life. Evelyn and Ellenbogen were English professors and writers. In 1988, they bought a house in West Roxbury, where they lived together until Evelyn’s death in 2010. Ellenbogen drafted Evelyn’s will using a model that a colleague had provided to him. Evelyn executed the will about six weeks before she died. Philip died approximately two years later, in 2012. The will. […]
Commonwealth v. Pacheco (Lawyers Weekly No. 10-091-17)
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-12212 COMMONWEALTH vs. ANDRES PACHECO. Middlesex. February 14, 2017. – May 30, 2017. Present: Gants, C.J., Lenk, Hines, Gaziano, Lowy, & Budd, JJ. Constitutional Law, Sentence, Assistance of counsel, Double jeopardy. Due Process of Law, Sentence, Assistance of counsel, Notice. Practice, Criminal, Sentence, Assistance of counsel, Double jeopardy, Probation. Indictments found and returned in the Superior Court Department on September 30, 2004. A motion to vacate sentence, filed on June, 18, 2008, was heard by Leila R. Kern, J., and a motion to correct and clarify sentence, filed on November 30, 2014, was heard by Kathe M. Tuttman, J. The Supreme Judicial Court granted an application for direct appellate review. Rebecca Kiley for the defendant. Michael Klunder, Assistant District Attorney, for the Commonwealth. GAZIANO, J. At issue in this case is whether a consecutive sentence of eight years of probation, imposed in 2015 by a judge who was not the plea judge, violated the protections against double jeopardy, where the defendant originally had been sentenced in May, 2005, to an eight-year term of probation, concurrent with his ten-year prison sentence. In June, 2008, after he had served approximately three and one-half years of incarceration, the defendant filed, pro se, a motion to vacate the imposition of community parole supervision for life (CPSL), in light of this court’s decision in Commonwealth v. Pagan, 445 Mass. 161, 162 (2005). At a hearing on that motion in July, 2008, where the defendant was not represented by counsel, and had not waived his right to representation, the plea judge allowed the motion to vacate, and then, at the Commonwealth’s request, imposed several additional conditions on the defendant’s terms of probation, while ordering that “[t]he original sentence on [May 26, 2005,] stands except the lifetime community parole was vacated.” In November, 2015, approximately two months before the defendant’s then-scheduled release date, the Commonwealth filed a “Motion to Correct and Clarify the Sentence.” The Commonwealth argued that, at the 2008 hearing when the plea judge vacated the imposition of CPSL, she had resentenced the defendant to a consecutive term of probation of eight years, from and after his ten-year sentence of incarceration. At a hearing in December, 2015, after the original sentences in this case had terminated, a different Superior Court judge sentenced the […]
Commonwealth v. Laureus (Lawyers Weekly No. 12-055-17)
COMMONWEALTH OF MASSACHUSETTS MIDDLESEX, ss. SUPERIOR COURT Criminal No. 16-404 COMMONWEALTH vs. JAMES LAUREUS MEMORANDUM AND ORDER ON DEFENDANT’S MOTION TO DISMISS Defendant James Laureus is charged with trafficking more than 36 grams of cocaine, distribution of oxycodone, possession with intent to distribute cocaine, and possession with intent to distribute oxycodone. Each crime is also indicted with an habitual criminal sentencing enhancement under G.L. c. 279, § 25(a). The case is before me on defendant’s motion to dismiss the habitual criminal indictments under Commonwealth v. McCarthy, 385 Mass. 160 (1982). For the following reasons, the motion is ALLOWED. BACKGROUND On August 11, 2016, the grand jury heard the following information: The Charged Offense. On March 24, 2016, the Medford and Woburn police were investigating Eric Gullage (“Gullage”). As part of the investigation, undercover officer Christina Bartolomeu (“Bartolomeu”) contacted Gullage by phone and asked to buy ten oxycodone pills. (Oxycodone is a Class B controlled substance.) The two arranged a meeting for later that day in Medford. Bartolomeu drove to the designated location. Woburn and Medford detectives, and task force officers from the Drug Enforcement Agency (“DEA”), conducted surveillance. Gullage approached and entered Bartolomeu’s vehicle. Minutes later the defendant entered the area in a 2 white Ford van and parked behind Bartolomeu’s vehicle. Bartolomeu then gave Gullage the agreed upon price — $ 350 — for the pills. Gullage exited the vehicle and entered the white van, returning to Bartolomeu’s car minutes later with a napkin containing ten pills. A lab report confirmed the pills contained oxycodone. Defendant left the area in the white van. The police stopped him and ordered him out of the van. They found the marked currency that Bartolomeu handed to Gullage in defendant’s right jacket pocket. Defendant was detained. During a search at the Medford police station, officers discovered individually-wrapped substances, later identified as cocaine and oxycodone, in defendant’s underwear. Defendant’s Prior Convictions. By March 2016, defendant had two prior convictions out of Suffolk Superior Court for distribution of a Class B controlled substance. The convictions arose out of a single prosecution in Criminal No. 04-10587, and were Indictment Nos. 001 and 0031 in that docket. Following defendant’s guilty pleas on those two charges, on November 3, 2010, defendant was sentenced to five years to five years and one day in prison on each charge. The Commonwealth did not provide the grand jury with the plea colloquy, a plea agreement, or a police report regarding details of the underlying offense. The indictments indicate the two counts constituted two purchases of cocaine by the same undercover officer as part of a single investigation and course of conduct over five days. Indictment 001 read: JAMES LAUREUS, on April […]
Daley v. Secretary of the Executive Office of Health and Human Services, et al.; Nadeau v. Director of the Office of Medicaid (Lawyers Weekly No. 10-092-17)
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-12200 SJC-12205 MARY E. DALEY, personal representative,[1] vs. SECRETARY OF THE EXECUTIVE OFFICE OF HEALTH AND HUMAN SERVICES & another.[2] LIONEL C. NADEAU vs. DIRECTOR OF THE OFFICE OF MEDICAID. Worcester. January 5, 2017. – May 30, 2017. Present: Gants, C.J., Lenk, Hines, Gaziano, Lowy, & Budd, JJ. Medicaid. Trust, Irrevocable trust. Real Property, Life estate, Ownership. Civil action commenced in the Superior Court Department on February 11, 2015. The case was heard by Dennis J. Curran, J., on a motion for judgment on the pleadings. The Supreme Judicial Court granted an application for direct appellate review. Civil action commenced in the Superior Court Department on December 23, 2014. The case was heard by Shannon Frison, J., on a motion for judgment on the pleadings. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Lisa Neeley (Patrick Tinsley also present) for Lionel C. Nadeau. Brian E. Barreira for Mary E. Daley. Ronald M. Landsman, of Maryland, for National Academy of Elder Law Attorneys, Inc. Elizabeth Kaplan & Julie E. Green, Assistant Attorneys General, for Director of the Office of Medicaid & another. Patricia Keane Martin, for National Academy of Elder Law Attorneys (Massachusetts Chapter), was present but did not argue. Leo J. Cushing & Thomas J. McIntyre, for Real Estate Bar Association for Massachusetts, Inc., amicus curiae, submitted a brief. GANTS, C.J. These two cases require this court to navigate the labyrinth of controlling statutes and regulations to determine whether applicants are eligible for long-term care benefits under the Federal Medicaid Act (act) where they created an irrevocable trust and deeded their primary asset — their home — to that trust but retained the right to reside in and enjoy the use of the home for the rest of their life. The Director of the Massachusetts Office of Medicaid (MassHealth) determined that the applicants in these two cases were not eligible for long-term care benefits because their retention of a right to continue to live in their homes made the equity in their homes a “countable” asset whose value exceeded the asset eligibility limitation under the act. The applicants unsuccessfully challenged MassHealth’s determinations in the Superior Court pursuant to G. L. c. 30A, § 14. We […]
Commonwealth v. Suriel (Lawyers Weekly No. 11-068-17)
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 16-P-254 Appeals Court COMMONWEALTH vs. JUAN G. SURIEL. No. 16-P-254. Hampden. March 1, 2017. – May 26, 2017. Present: Green, Wolohojian, & Sullivan, JJ. Firearms. Practice, Criminal, Motion to suppress. Constitutional Law, Search and seizure, Reasonable suspicion. Search and Seizure, Automobile, Reasonable suspicion. Complaint received and sworn to in the Springfield Division of the District Court Department on December 2, 2013. A pretrial motion to suppress evidence was heard by Robert A. Gordon, J., and the case was tried before Charles W. Groce, III, J. William M. Driscoll for the defendant. Kelsey A. Baran, Assistant District Attorney, for the Commonwealth. SULLIVAN, J. The defendant, Juan G. Suriel, appeals from his convictions of possession of a firearm without a license in violation of G. L. c. 269, § 10(a), and possession of ammunition without a firearm identification card in violation of G. L. c. 269, § 10(h)(1).[1] He contends that his motion to suppress should have been allowed because the police lacked reasonable suspicion to conduct an investigatory stop. We affirm. Background. We recite the motion judge’s factual findings, supplemented by uncontroverted evidence in the record that is consistent with those findings. See Commonwealth v. Edwards, 476 Mass. 341, 342 (2017). On November 30, 2013, at about 5:30 P.M., a police officer from the narcotics division of the Springfield police department was surveilling a local barbershop. The narcotics officer was parked across the street from the barbershop, in the parking lot of Springfield Technical Community College on State Street. At around 6:20 P.M., the narcotics officer saw two men go into the barbershop. A short time later, another man, later identified as codefendant Glidden Gotay, went into the barbershop holding a blue bag. The three men were talking by the front door and a fourth man, later identified as the defendant, joined the conversation. The men then went into a back area of the barbershop, out of sight of the narcotics officer. Within a short period of time, the four men came out of the barbershop, walked about ten to fifteen feet down the driveway next to the barbershop, and began to talk.[2] Another man, later identified as codefendant Jose L. Vicente, remained at the head of the driveway near the street and sidewalk. The narcotics officer then saw Gotay hand a gun to […]
Commonwealth v. Lydon (Lawyers Weekly No. 10-089-17)
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-12289 COMMONWEALTH vs. DAVID LYDON. May 26, 2017. Imprisonment, Credit for time served. Practice, Criminal, Sentence, Judicial discretion. The defendant, David Lydon, appeals from an order denying his motion for credit for time being served in a house of correction for one set of offenses, while he was awaiting trial and sentencing in the Superior Court on a second, unrelated set of offenses. The Appeals Court affirmed the denial of the motion in a unpublished memorandum and order issued pursuant to its rule 1:28, see Commonwealth v. Lydon, 90 Mass. App. Ct. 1118 (2017), and this court granted further appellate review. Although the defendant is not entitled as of right to the credit he seeks, we recognize that in appropriate circumstances a judge has discretion to impose a concurrent State prison sentence nunc pro tunc to the commencement of a house of correction sentence then being served. Because the judge did not consider whether to exercise his discretion in that regard, we vacate the order, and remand for further consideration. Discussion. While the defendant was on probation for various drug offenses (Roxbury charges), he was arrested and arraigned in the District Court for three new robbery offenses, for which he later was indicted and arraigned in the Superior Court (Dorchester charges). About five weeks after his arrest on the Dorchester charges, the defendant stipulated to violation of the conditions of his probation, was sentenced on the Roxbury charges, and began serving a six-month committed sentence in the house of correction. One hundred and thirty-two days later (while he was serving the Roxbury sentence), he pleaded guilty to the Dorchester charges, and was given a committed sentence to State prison “forthwith and notwithstanding” the Roxbury sentence. The sentencing judge credited against the Dorchester sentence the thirty-six days the defendant had been held before sentencing on the Roxbury charges, but denied the defendant’s motion for additional credit for the 132 days he already had served on the existing Roxbury sentence. The defendant does not argue that he was entitled as of right to a 132-day jail credit on the Dorchester sentence. Instead, his claim is that a judge has discretion to authorize such credit in these circumstances for two reasons: first, under Commonwealth v. Ridge, 470 Mass. 1024, 1025 (2015), a judge has discretion […]
Padmanabhan v. Yout (Lawyers Weekly No. 10-090-17)
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-12266 BHARANIDHARAN PADMANABHAN vs. KIMBERLEY YOUT. May 26, 2017. Supreme Judicial Court, Superintendence of inferior courts. The petitioner, Bharanidharan Padmanabhan, appeals from a judgment of a single justice of this court denying his petition pursuant to G. L. c. 211, § 3. We affirm. In 2013, the respondent, Kimberley Yout, commenced a product liability action in the Superior Court against Biogen Inc. and Elan Pharmaceuticals, LLC, related to a medication used to treat multiple sclerosis. She subsequently amended her complaint to include Padmanabhan, a medical doctor, and his company, Scleroplex, Inc., claiming medical malpractice stemming from Padmanabhan’s treatment of her multiple sclerosis with that medication. Padmanabhan moved to dismiss the claims against both him and, purportedly, Scleroplex, on several bases: that venue was improper, that service was improper and ineffective, and that the claims were barred by the applicable statute of limitations.[1] The motion was denied. Padmanabhan then filed his G. L. c. 211, § 3, petition, which the single justice denied without a hearing. Because the trial court ruling from which Padmanabhan seeks relief — the denial of his motion to dismiss — is interlocutory, Padmanabhan’s appeal to this court is subject to S.J.C. Rule 2:21, as amended, 434 Mass. 1301 (2001). That rule requires an appellant to file a preliminary memorandum and appendix showing that “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). Padmanabhan has not done so. Instead of filing a preliminary memorandum under the rule, he filed instead a full appellate brief. This failure to comply with the rule defeats the purpose of the rule and is basis alone for us to decline to disturb the single justice’s judgment. Rasten v. Northeastern Univ., 432 Mass. 1003, 1003 (2000), cert. denied, 531 U.S. 1168 (2001).[2] More importantly, even in his brief he has not made a showing why review of the denial of his motion to dismiss cannot adequately be obtained on appeal from any final adverse judgment in the trial court; he has not, in fact, even addressed the issue. This court’s extraordinary power of general superintendence under G. L. c. 211, § 3, is not a shortcut for the normal process of trial and appeal. See Foley v. Lowell Div. of […]
Commonwealth v. Connolly (Lawyers Weekly No. 11-066-17)
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 16-P-107 Appeals Court COMMONWEALTH vs. DAVID A. CONNOLLY. No. 16-P-107. Middlesex. December 14, 2016. – May 25, 2017. Present: Wolohojian, Milkey, & Shin, JJ. Assault and Battery. Evidence, Videotape, Best and secondary, Cross-examination, Authentication, Identification, Opinion. Identification. Witness, Cross-examination. Fair Trial. Complaint received and sworn to in the Malden Division of the District Court Department on August 19, 2014. The case was tried before Emily A. Karstetter, J. Justin J. Patch for the defendant. Alaina Catherine Sullivan, Assistant District Attorney, for the Commonwealth. SHIN, J. The defendant was convicted of assault and battery for pushing someone in a hallway of an apartment building. While he admitted that contact occurred, his defense was that it was accidental. The case therefore turned on the details of the interactions between the two individuals. At trial the Commonwealth presented a single witness — a police officer who watched a video of surveillance footage[1] that he said was recorded from inside the building. Before the defense had an opportunity to view the video, it was erased through no fault of the Commonwealth. Over the defendant’s objection, the judge allowed the officer to testify as to his recollections of what he saw on the video, including that, contrary to the theory of the defense, it showed the defendant lifting both arms and “shoving” the victim to the ground. We consider in this appeal (1) whether the requirement of authentication pertaining to real evidence applies to the lost video, and (2) whether, and in what circumstances, a judge can admit a witness’s lay opinion identifying a person on a video, where the video is not available for the jury to view. With respect to the first question, we conclude that, before the officer’s testimony could be admitted, the Commonwealth had to lay a foundation establishing that the lost video was what the officer claimed it to be, i.e., a genuine recording of the encounter that occurred between the defendant and the victim. With respect to the second question, while we reject the defendant’s contention that the unavailability of the video required automatic exclusion of the officer’s identification testimony, we conclude that the Commonwealth had to lay sufficient foundational facts to enable the jury to make their own findings about the accuracy and reliability […]