Beacon South Station Associates, LSE v. Board of Assessors of Boston (Lawyers Weekly No. 11-048-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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 13‑P‑739 Appeals Court BEACON SOUTH STATION ASSOCIATES, LSE[1] vs. BOARD OF ASSESSORS OF BOSTON. No. 13‑P‑739. Suffolk. February 12, 2014. ‑ May 14, 2014. Present: Kafker, Milkey, & Sullivan, JJ. Taxation, Abatement, Exemption, Leased property, Real estate tax: abatement, exemption. Massachusetts Bay Transportation Authority. Boston. Contract, Lease of real estate. Real Property, Lease. Appeal from a decision of the Appellate Tax Board. Anthony M. Ambriano for the defendant. Stephen H. Oleskey for the plaintiff. KAFKER, J. The principal issue in this case is whether certain real estate in Boston owned by the Massachusetts Bay Transportation Authority (MBTA) and leased to a private, for-profit entity was exempt from taxation pursuant to G. L. c. 161A, § 24, in fiscal years 2009 and 2010.[2] The property in question is the South Station Headhouse (Headhouse), which the MBTA leases to Beacon South Station Associates, LSE, also known as EOP-South Station, LLC (EOP). The Headhouse consists of an enclosed concourse through which the public passes to access MBTA and Amtrak train platforms, an underground subway connection, office and retail space, a surface facility and parking area, and the surrounding sidewalks. The real estate taxes assessed on the Headhouse were $ 1,439,974.76 in 2009, and $ 1,135,463.55 in 2010. EOP filed challenges to the 2009 and 2010 fiscal year assessments on the property with the board of assessors of Boston (assessors), and then appealed to the Appellate Tax Board (board) following the assessors’ refusal to abate the taxes. The board ruled that G. L. c. 161A, § 24, “expressly exempted the property of the MBTA from taxation, whether or not leased for business purposes,” and granted the abatements. The assessors appealed. On appeal, the assessors’ primary argument is that the board erred in its conclusion, and the § 24 exemption did not apply to the Headhouse at all because EOP, a private entity, leased the Headhouse from the MBTA and operated it for profit in the tax years in question. Alternatively, the assessors argue that even if the Headhouse was not subject to a blanket assessment for the years in question, EOP could be taxed on the tenant improvements made to the property because EOP owned these improvements according to the terms of the lease, and they were therefore not property of the MBTA. Examination of G. L. c. 161, § 24, as […]
Loring Towers Associates v. Furtick v. Boston Housing Authority (Lawyers Weekly No. 11-033-14)
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 13‑P‑799 Appeals Court LORING TOWERS ASSOCIATES[1] vs. MELVIN FURTICK; BOSTON HOUSING AUTHORITY, third-party defendant. No. 13‑P‑799. Essex. December 3, 2013. ‑ March 27, 2014. Present: Grainger, Brown, & Carhart, JJ. Summary Process. Practice, Civil, Summary process, Complaint, Parties. Boston Housing Authority. Due Process of Law, Housing. Summary process. Complaint filed in the Salem Division of the District Court Department on April 23, 2012. Following transfer to the Northeast Division of the Housing Court Department, a motion to dismiss a third‑party complaint was heard by David D. Kerman, J. Michael J. Louis & Angela Marcolina for Boston Housing Authority. Laura Gallant (James Breslauer with her) for Melvin Furtick. BROWN, J. Melvin Furtick, a physically disabled and mentally ill senior citizen, has been a participant in the Federal Housing Choice Voucher Program, better known as “section 8,” for over thirty years.[2] The Boston Housing Authority (BHA) terminated Furtick’s housing assistance benefits, a protected property interest, in violation of his due process rights. Such a result cannot be countenanced by any court of law. Accordingly, we affirm the judgment of the Housing Court in this summary process litigation restoring Furtick’s housing benefits retroactively to the date of the unlawful termination. Facts. Except where noted, the following facts are undisputed. On January 17, 2012, the leased housing division of the BHA sent a letter addressed to Furtick at his subsidized apartment in Salem, notifying him of the proposed termination of his housing assistance benefits based upon his failure to attend two section 8 voucher recertification meetings scheduled for November 28, 2011, and December 22, 2011. See § 13.6.2 of the BHA Administrative Plan for Section 8 Programs (revised December 6, 2011) (BHA administrative plan). The BHA letter informed Furtick that he had the right to an informal hearing regarding the proposed termination before the BHA’s department of grievances and appeals as long as he requested a hearing within twenty days. See id. at § 13.6.3. When Furtick failed to respond within the twenty-day appeal period, the BHA, by letter dated February 7, 2012, and mailed to his apartment, terminated Furtick’s subsidy effective March 31, 2012. As Furtick was in jail during that time, he had no actual knowledge of any of this.[3] Upon his release, Furtick returned to his apartment and discovered that […]
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., […]
Preventive Medicine Associates, Inc., et al. v. Commonwealth (Lawyers Weekly No. 10-130-13)
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‑11252 PREVENTIVE MEDICINE ASSOCIATES, INC., & another[1] vs. COMMONWEALTH. Suffolk. March 7, 2013. ‑ July 15, 2013. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Electronic Mail. Privileged Communication. Search and Seizure, Warrant. Practice, Criminal, Warrant, Assistance of counsel, Subpoena. Constitutional Law, Search and seizure, Assistance of counsel. Rules of Criminal Procedure. Civil action commenced in the Supreme Judicial Court for the county of Suffolk on June 13, 2012. The case was reported by Spina, J. Timothy E. Maguire for the plaintiffs. Thomas E. Bocian, Assistant Attorney General, for the Commonwealth. BOTSFORD, J. This case concerns the search by the Commonwealth of electronic mail messages (e-mails) of a criminal defendant after he has been indicted. Because the e-mails sought by the Commonwealth are intermingled with many other e-mails that are likely to be protected by the attorney-client privilege, the case concerns more particularly the intersection between search and seizure law and that privilege. The issue arises in the following context. On behalf of the Commonwealth, the Attorney General sought, and a grand jury returned, indictments charging the defendants, Preventive Medicine Associates, Inc. (PMA), and Punyamurtula Kishore, with Medicaid fraud in violation of G. L. c. 118E, §§ 40 and 41.[2] Thereafter, on two different occasions, the Commonwealth applied for and obtained search warrants to obtain and search designated e-mail accounts of Kishore and of PMA’s former billing director, Cheryl Church; both e-mail accounts were with Google, Inc. (Google), which stored the e-mails on its own server. On learning that the Commonwealth had begun reviewing Kishore’s e-mails pursuant to the warrants, the defendants moved for a protective order, claiming that the attorney-client privilege protected many of those e-mails. After several hearings, on June 4, 2012, a judge in the Superior Court (motion judge) entered an amended order permitting the Commonwealth to search the e-mails by using a so-called “taint team” comprised of assistant attorneys general not involved in the investigation or prosecution of the defendants. The defendants filed a petition under G. L. c. 211, § 3, in the county court, seeking relief from the motion judge’s order. The single justice stayed the motion judge’s order and reserved and reported the following questions to the full court: “(1) Whether the Commonwealth may, by means of an ex parte […]
Categories: News Tags: 1013013, Associates, Commonwealth, Inc., Lawyers, Medicine, Preventive, Weekly
Massachusetts Housing Opportunities Corporation v. Whitman & Bingham Associates, P.C., et al. (Lawyers Weekly No. 11-031-13)
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‑53 Appeals Court MASSACHUSETTS HOUSING OPPORTUNITIES CORPORATION vs. WHITMAN & BINGHAM ASSOCIATES, P.C., & another.[1] No. 12‑P‑53. Essex. October 3, 2012. ‑ February 21, 2013. Present: Graham, Vuono, & Hanlon, JJ. Sewage Disposal. Limitations, Statute of. Negligence, Installation of septic system, Misrepresentation. Fraud. Contract, Performance and breach. Consumer Protection Act, Unfair or deceptive act. Civil action commenced in the Superior Court Department on May 23, 2008. The case was heard by Maynard M. Kirpalani, J., on motions for summary judgment. Daniel J. Murphy for the plaintiff. Eric A. Howard (Patricia B. Gary with him) for Whitman & Bingham Associates, P.C. GRAHAM, J. After a wastewater treatment plant for one of its development projects vastly exceeded projected costs, the plaintiff, Massachusetts Housing Opportunities Corporation (MHOC), filed a complaint alleging tort claims (counts I – III), breach of contract (count IV), and violation of G. L. c. 93A (count V) against the defendants, engineering firms Whitman & Bingham Associates, P.C. (Whitman), and Aquapoint, Inc. (Aquapoint).[2] A judge of the Superior Court granted the defendants’ motion for summary judgment, and MHOC appeals. It argues that the judge erred in concluding that its tort and contract claims are barred by the applicable statute of limitations, and that its c. 93A claim is without support in the record. We affirm. Background. The undisputed facts, viewed in the light most favorable to the nonmoving party, MHOC, are as follows. In 2003, MHOC, a property development corporation, was in the process of developing a condominium project in Sterling (development). On October 2, 2003, it entered into an agreement with Whitman to design “a subsurface sewage disposal system” (septic system) for the development. Whitman, in turn, hired Aquapoint to provide information about sewage treatment equipment and permitting advice. Whitman began work on the design, and, in November, 2004, told MHOC that the septic system could be permitted relatively inexpensively under the Department of Environmental Protection’s (DEP) Title 5 alternative system for piloting program (piloting program).[3] Thereafter, on December 15, 2004, Whitman submitted an application under the piloting program on behalf of MHOC. MHOC signed the application and paid the $ 430 filing fee by check. Also in December, 2004, MHOC received a $ 300,000 bid from a third party, M.P. Crowley, to construct the septic system […]
Categories: News Tags: 1103113, Associates, Bingham, Corporation, Housing, Lawyers, massachusetts, Opportunities, P.C., Weekly, Whitman