Posts tagged "1111717"

Gallagher v. Cerebral Palsy of Massachusetts, Inc., et al. (Lawyers Weekly No. 11-117-17)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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-1152                                       Appeals Court   SUSAN GALLAGHER  vs.  CEREBRAL PALSY OF MASSACHUSETTS, INC., & others.[1]     No. 16-P-1152.   Norfolk.     April 6, 2017. – September 13, 2017.   Present:  Green, Blake, & Lemire, JJ.     MassHealth.  Massachusetts Wage Act.  Labor, Overtime compensation, Failure to pay wages.  Independent Contractor Act.  Regulation.  Practice, Civil, Motion to dismiss, Summary judgment.       Civil action commenced in the Superior Court Department on December 10, 2015.   A motion to dismiss was heard by Rosalind Henson Miller, J.     Paul L. Nevins for the plaintiff. Jeffrey S. Beeler for the defendants.     LEMIRE, J.  Susan Gallagher, a personal care attendant (PCA) who provided in-home services for an elderly man (consumer[2]), brought an action in Superior Court against Cerebral Palsy of Massachusetts, Inc.; its president, Donald Uvanitte; and its treasurer, David Sprague (collectively, CPM), alleging that CPM was her employer and that it failed to pay her for her overtime hours, including failing to do so at an overtime rate.  A judge granted CPM’s motion to dismiss on the ground that, pursuant to the MassHealth regulations (regulations) governing Gallagher’s work arrangement, she was employed by the consumer, not CPM.  Gallagher appeals from the judgment, and we affirm. Standard of review.  Although there were exhibits attached to both CPM’s motion to dismiss and Gallagher’s opposition, the judge ostensibly declined to treat the motion as one for summary judgment, and she excluded the additional material from consideration.  See Mass.R.Civ.P. 12(b), 365 Mass. 754 (1974).  But in a footnote explicitly listing the excluded exhibits, the judge did not identify as having been excluded one of CPM’s submissions:  excerpts from a contract it executed with the Executive Office of Health and Human Services.  That document establishes the applicability of certain of the regulations, including CPM’s role within that regulatory framework as a “fiscal intermediary,” i.e., an entity that serves in a facilitative role with regard to payroll and related matters.  130 Code Mass. Regs. § 422.402 (2006).  These facts were not reflected in the complaint, but the judge cited them as dispositive.  By relying on facts outside of the complaint, the judge essentially rendered a decision in the nature of summary judgment.  Doucette v. Massachusetts Parole Bd., 86 Mass. App. Ct. 531, 533-534 (2014). We will review the decision as such, including taking into consideration the other excluded […]

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Posted by Massachusetts Legal Resources - September 13, 2017 at 6:36 pm

Categories: News   Tags: , , , , , , ,

Valente v. TB Bank, N.A. (Lawyers Weekly No. 11-117-17)

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-1119                                       Appeals Court   GERALD VALENTE, executor,[1] and trustee,[2]  vs.  TD BANK, N.A.[3]     No. 16-P-1119.   Worcester.     March 3, 2017. – August 30, 2017.   Present:  Agnes, Kinder, & Shin, JJ.     Bank.  Negligence, Bank.  Notice, Timeliness.  Uniform Commercial Code, Bank, Notice, Payment on negotiable instrument.  Negotiable Instruments, Payment.       Civil action commenced in the Superior Court Department on October 25, 2011.   The case was heard by Daniel M. Wrenn, J., on a motion for summary judgment.     Barry A. Bachrach for the plaintiff. Catherine R. Connors for the defendant.     AGNES, J.  Before a bank customer may sue his bank for honoring a check drawn on his account that bears an “unauthorized signature or alteration,” Massachusetts law requires that the customer notify the bank of the matter within one year after a statement of the account showing the item that was paid is made available to him.  G. L. c. 106, § 4-406(f), as appearing in St. 1998, c. 24, § 8.[4]  In the present case, the plaintiff, Gerald Valente, in his capacity as the executor of the estate of Mauro Valente (decedent or Mauro) and as trustee of the Valente Family Trust, brought suit against the decedent’s widow, Donna Valente,[5] and her daughter, Lillianna Saari, alleging that they wrongfully misappropriated substantial sums of money from the decedent’s estate and a family trust that were on deposit in TD Bank, N.A. (bank).  In the same action, in the only count in the complaint against the bank, the plaintiff alleged that the bank was negligent and thereby liable for damages because it was aware of the wrongful conduct by the decedent’s widow.  For substantially the same reasons given by the Superior Court judge below, who allowed the bank’s motion for summary judgment in a thoughtful and comprehensive memorandum of decision, we hold that the one-year notice requirement set forth in G. L. c. 106, § 4-406(f), bars a customer’s lawsuit against his bank for honoring a check with a forgery of the customer’s signature despite an allegation that the bank had actual knowledge of the forgery.[6] Background.  The essential facts material to the outcome in this case are not in dispute.  The following account is drawn from the materials submitted by the plaintiff and the bank in connection with the bank’s motion for summary judgment.  Mauro and Donna […]

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Posted by Massachusetts Legal Resources - August 30, 2017 at 2:43 pm

Categories: News   Tags: , , , , ,