Coren-Hall v. Massachusetts Bay Transportation Authority (Lawyers Weekly No. 11-015-17)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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-300 Appeals Court ALEXIS D. COREN-HALL[1] vs. MASSACHUSETTS BAY TRANSPORTATION AUTHORITY. No. 16-P-300. Suffolk. December 13, 2016. – February 23, 2017. Present: Milkey, Massing, & Sacks, JJ. Practice, Civil, Presentment of claim under Massachusetts Tort Claims Act, Interlocutory appeal, Summary judgment. Massachusetts Tort Claims Act. Notice, Claim under Massachusetts Tort Claims Act. Massachusetts Bay Transportation Authority, General manager. Civil action commenced in the Superior Court Department on May 16, 2012. The case was heard by Peter M. Lauriat, J., on a motion for summary judgment, and a motion for reconsideration was considered by him. Amy Bratskeir (Jonathan P. Feltner also present) for the defendant. Albert E. Grady for the plaintiff. SACKS, J. The defendant, Massachusetts Bay Transportation Authority (MBTA), appeals from a Superior Court order denying its renewed motion for summary judgment on plaintiff Alexis D. Coren-Hall’s tort claim under the Massachusetts Tort Claims Act, G. L. c. 258. The MBTA’s motion asserted that Coren-Hall had failed to make presentment of her claim to the MBTA’s “executive officer,” as required by G. L. c. 258, § 4. The judge denied the motion on the ground that, although Coren-Hall had not made presentment to the MBTA’s executive officer, the executive officer nevertheless had “actual notice” of the claim. We conclude that the MBTA’s motion should have been allowed.[2] Background. Coren-Hall alleged that on May 10, 2010, she was injured when a negligently driven MBTA bus struck a vehicle that she was in the process of entering. After she filed suit on May 16, 2012, the MBTA’s answer asserted, as an affirmative defense, that she had failed to make proper presentment of her claim as required by G. L. c. 258, § 4. In July, 2015, the MBTA filed a renewed motion for summary judgment on that basis.[3] Under G. L. c. 258, § 4, a tort claim against a public employer must be presented to its “executive officer,” defined in G. L. c. 258, § 1, inserted by St. 1978, c. 512, § 15, as its “nominal chief executive officer or board,”[4] within two years after the cause of action arose. The MBTA’s motion asserted that, although Coren-Hall had timely mailed notice of her claim to the MBTA “Claims Department,” she had never sent such notice to the executive officer. The judge denied the MBTA’s motion, and this appeal followed.[5] Discussion. The parties’ […]
Categories: News Tags: 1101517, Authority, CorenHall, Lawyers, massachusetts, Transportation, Weekly
Trychon v. Massachusetts Bay Transportation Authority (Lawyers Weekly No. 11-124-16)
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 15-P-1316 Appeals Court STEPHEN TRYCHON vs. MASSACHUSETTS BAY TRANSPORATION AUTHORITY. No. 15-P-1316. Suffolk. May 16, 2016. – September 15, 2016. Present: Agnes, Massing, & Kinder, JJ. Massachusetts Bay Transportation Authority. Practice, Civil, Motion to dismiss. Employment, Termination, Retaliation. Civil action commenced in the Superior Court Department on February 11, 2014. A motion to dismiss was heard by Heidi E. Brieger, J. Kevin G. Powers for the plaintiff. Jeffrey A. Dretler for the defendant. AGNES, J. In this appeal, we must determine the legal sufficiency of Stephen Trychon’s complaint charging the Massachusetts Bay Transportation Authority (MBTA) with violations of G. L. c. 149, § 185, the Massachusetts public employee whistleblower statute (whistleblower statute). A Superior Court judge allowed the MBTA’s motion, pursuant to Mass.R.Civ.P. 12(b)(6), 365 Mass. 755 (1974), to dismiss the complaint.[1] We conclude that Trychon has stated a plausible claim for relief. See Iannacchino v. Ford Motor Co., 451 Mass. 623, 636 (2008). Accordingly, we reverse the judgment. Standard of review. We review the order dismissing the complaint de novo, accepting the truth of all factual allegations and drawing all reasonable inferences in Trychon’s favor. See Glovsky v. Roche Bros. Supermarkets, Inc., 469 Mass. 752, 754 (2014). A complaint is sufficient to withstand a motion to dismiss if the factual allegations “plausibly suggest” an entitlement to relief, raising the right to relief “above the speculative level.” Harrington v. Costello, 467 Mass. 720, 724 (2014), quoting from Iannacchino, supra. See Mass.R.Civ.P. 8(a)(1), 365 Mass. 749 (1974). The factual content is sufficient if it “allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged,” Garayalde-Rijos v. Municipality of Carolina, 747 F.3d 15, 23 (1st Cir. 2014), quoting from Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), and “it . . . raise[s] a reasonable expectation that discovery will reveal evidence [of the alleged misconduct].” Lopez v. Commonwealth, 463 Mass. 696, 712 (2012), quoting from Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007). In conducting the “context-specific” inquiry required by the plausibility standard, we must “draw on [our] judicial experience and common sense.” Lopez, supra, quoting from Ashcroft, supra at 679. “The critical question is whether the claim, viewed holistically, is made plausible by ‘the cumulative effect of the factual allegations’ […]
Categories: News Tags: 1112416, Authority, Lawyers, massachusetts, Transportation, Trychon, Weekly
Landry v. Massachusetts Port Authority, et al. (Lawyers Weekly No. 11-042-16)
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 15-P-253 Appeals Court DONALD R. LANDRY vs. MASSACHUSETTS PORT AUTHORITY & another.[1] No. 15-P-253. Hampden. November 12, 2015. – April 12, 2016. Present: Cohen, Grainger, & Wolohojian, JJ. Massachusetts Port Authority. Municipal Corporations, Liability for tort. Practice, Civil, Summary judgment, Interlocutory appeal, Execution. Negligence, Use of way. Way, Public: defect. Notice, Action alleging injury caused by defect in public way. Civil action commenced in the Superior Court Department on June 25, 2012. The case was heard by C. Jeffrey Kinder, J., on motions for summary judgment. Tara E. Lynch for the defendants. Enrico M. De Maio for the plaintiff. COHEN, J. The plaintiff, Donald R. Landry, brought this negligence action pursuant to the Massachusetts Tort Claims Act, G. L. c. 258, seeking damages from the defendants, the Massachusetts Port Authority (Massport) and the city of Worcester (city), for injuries he sustained at the Worcester Regional Airport (airport) when a motorized sliding gate pinned him to a metal bar protruding from the gate post. The defendants jointly moved for summary judgment, claiming that Landry was injured by reason of a defect in a way and, hence, his exclusive remedy was an action under G. L. c. 84, §§ 15, 18, and 19.[2] See Botello v. Massachusetts Port Authy., 47 Mass. App. Ct. 788, 789 & n.3 (1999). Because it was undisputed that Landry had not given notice within thirty days of his injury, as required by c. 84, § 18,[3] the defendants argued that they were entitled to judgment as matter of law. The city also argued that it was entitled to summary judgment for the independent reason that it was not responsible for “the way at issue.” A judge of the Superior Court denied summary judgment, concluding that the defendants had failed to establish that the site of the accident was a “way,”[4] and that there remained a genuine issue of material fact as to the city’s responsibility for the maintenance and operation of the gate. The defendants then jointly filed a notice of appeal from this interlocutory order, claiming entitlement to immediate review under the doctrine of present execution. Although we conclude that the appeal is not properly before us and must be dismissed, we exercise our discretion to consider the defendants’ substantive arguments, which we find to be without merit. Background. Viewing the evidence in the summary […]
Boston edvelopment Authority v. Pham, et al. (Lawyers Weekly No. 11-184-15)
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 14-P-1734 Appeals Court BOSTON REDEVELOPMENT AUTHORITY vs. JEFFREY PHAM & another.[1] No. 14-P-1734. Suffolk. October 1, 2015. – December 9, 2015. Present: Kafker, C.J., Katzmann, & Rubin, JJ. Housing. Redevelopment Authority. Deed. Real Property, Deed, Condominium. Condominiums, By-laws, Master deed. Practice, Civil, Findings by judge, Attorney’s fees. Civil action commenced in the Superior Court Department on December 1, 2010. The case was heard by Bonnie H. MacLeod, J., and a motion for attorney’s fees and costs was heard by her. Edward S. Englander (Shannon F. Slaughter with him) for the plaintiff. James A. Schuh for Jeffrey Pham. KAFKER, C.J. In this case we must decide whether Jeffrey Pham violated affordable housing restrictions established by the Boston Redevelopment Authority (BRA) that (1) required Pham to maintain his condominium unit as his principal residence, and (2) prohibited him from leasing his unit for business or investment purposes. As we discern no error in the Superior Court judge’s determination that Pham continued to occupy his condominium unit as his principal residence despite his extensive work-related travel, and that he did not violate any deed or other covenants when he took in a succession of roommates to share the space and defray the carrying costs of the unit, we affirm. 1. Background.[2] a. 2007 purchase of affordable housing unit. Having won a housing lottery and been approved by the BRA, on June 1, 2007, Jeffrey Pham purchased unit 413, a two-bedroom affordable condominium unit at 2400 Beacon Street in the Chestnut Hill section of Boston (unit or premises). His application stated that his sister, a college student, would live in the unit with him. Pham signed a number of documents relative to his purchase of the unit, including the unit deed, a deed rider covenant for affordable housing (covenant), a note, and a mortgage identifying the BRA as the mortgagee. In addition, recorded with the unit deed is an affirmation signed by Pham accepting the unit deed and agreeing to its provisions along with the provisions of the master deed and declaration of trust,[3] including the by-laws and rules and regulations adopted by the trustees of the condominium. Both as part of his application and yearly thereafter, Pham executed an affidavit averring that he occupied the unit as his principal residence. The purpose of the covenant, […]
Seales v. Boston Housing Authority (Lawyers Weekly No. 11-178-15)
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; SJCReportersjc.state.ma.us 14-P-1551 Appeals Court TINA SEALES vs. BOSTON HOUSING AUTHORITY. No. 14-P-1551. Suffolk. October 6, 2015. – November 16, 2015. Present: Cohen, Meade, & Agnes, JJ. Boston Housing Authority. Housing Authority. Municipal Corporations, Housing authority. Practice, Civil, Action in nature of certiorari. Administrative Law, Hearing, Substantial evidence, Judicial review. Evidence, Hearsay. Controlled Substances. Civil action commenced in the Boston Division of the Housing Court Department on January 23, 2014. The case was heard by Jeffrey M. Winik, J., on a motion for judgment on the pleadings. Angela Marcolina for the defendant. Alex Mitchell-Munevar for the plaintiff. MEADE, J. Tina Seales is a participant in the United States Department of Housing and Urban Development (HUD) Housing Choice Voucher Program, commonly referred to as “Section 8.” The program is administered by the Boston Housing Authority (BHA) pursuant to 42 U.S.C. § 1437f (2012), and related HUD regulations. In August of 2013, Seales received notice that the BHA proposed to terminate her participation in the program due to serious or repeated violation of her lease. Seales appealed the proposed termination. Following an informal hearing, a hearing officer, by a decision dated January 2, 2014, upheld the termination of Seales’s Section 8 housing subsidy. Thereafter, Seales successfully sought relief in the nature of certiorari under G. L. c. 249, § 4, in the Housing Court. On appeal from that judgment, the BHA claims that the judge erred in determining that the hearing officer improperly found that criminal or illegal activity occurred on the rental premises that constituted a serious violation of Seales’s Section 8 lease. We reverse. Background. Seales resided at 25 Drayton Avenue in the Dorchester section of Boston. She was a participant in the BHA’s Section 8 program and had been receiving Section 8 housing benefits for approximately fifteen years. Seales lived with her three children, then ages sixteen, seventeen, and nineteen. In August of 2013, Seales received notice that the BHA proposed to terminate her participation in the program due to a family member having engaged in drug-related activity and serious or repeated violation of her lease.[1] The BHA based its allegations on a Boston police incident report, a leased housing recertification questionnaire, family obligations, and the lease itself. 1. The incident report. According to the Boston police incident report, on July 9, 2013, police Officers Femino, […]
Nantasket Beachfront Condominiums, LLC v. Hull Redevelopment Authority (Lawyers Weekly No. 11-058-15)
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 14-P-222 Appeals Court NANTASKET BEACHFRONT CONDOMINIUMS, LLC vs. HULL REDEVELOPMENT AUTHORITY. No. 14-P-222. Plymouth. November 7, 2014. – June 5, 2015. Present: Rapoza, C.J., Milkey, & Hanlon, JJ. Contract, Performance and breach, Implied covenant of good faith and fair dealing, Damages, Provision for liquidated damages, Termination. Practice, Civil, Summary judgment, Damages, Waiver. Redevelopment Authority. Administrative Law, Conflict of interest. Conflict of Interest. Public Employment, Unethical conduct. State Ethics Commission. Waiver. Damages, Breach of contract, Liquidated damages. Civil action commenced in the Superior Court Department on February 8, 2012. The case was heard by Robert C. Cosgrove, J., on motions for summary judgment. Brian K. Bowen for the plaintiff. Denise A. Chicoine (Edward S. Englander with her) for the defendant. MILKEY, J. In 2004, plaintiff Nantasket Beachfront Condominiums, LLC (Nantasket) and defendant Hull Redevelopment Authority (authority) entered into a contract for the purchase and development of certain land in Hull. Under that “LAND DISPOSITION AGREEMENT” (LDA), Nantasket was to purchase the land, construct seventy-two units of housing, and develop a new public park. Subsequently, the proposed project encountered robust neighborhood opposition, and this in turn led to significant delays in the anticipated closing. Eventually, the authority terminated the LDA and notified Nantasket that it was retaining as liquidated damages $ 857,500 in deposits that Nantasket had made. This action ensued. In a comprehensive and thoughtful decision, a Superior Court judge ruled in the authority’s favor on summary judgment. He concluded that Nantasket indisputably stood in breach of the LDA, and that the authority was within its rights to terminate the agreement and to retain the deposits. On Nantasket’s appeal, we affirm, albeit on somewhat different grounds. Background.[1] The parties execute the LDA. In order to spur the development of twelve acres of land that it owned, the authority in October of 2003 issued a detailed “Request for Proposals” (RFP). According to the RFP, the property “provides the transition between the [State-owned] . . . Nantasket Beach Reservation and a major residential area of the Town of Hull along Nantasket Avenue.” The RFP set forth a preferred development scenario in which approximately three-quarters of the land would be developed into “primarily passive public open space,” with the rest (approximately three acres) developed as “residential dwelling units, or other uses, as […]
Categories: News Tags: 1105815, Authority, Beachfront, Condominiums, Hull, Lawyers, Nantasket, Redevelopment, Weekly
Fernandes v. Attleboro Housing Authority (Lawyers Weekly No. 10-186-14)
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 SJC-11580 DAVID FERNANDES vs. ATTLEBORO HOUSING AUTHORITY. Bristol. September 4, 2014. – November 19, 2014. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Labor, Wages. Superior Court, Jurisdiction. Jurisdiction, Primary jurisdiction, Superior Court, Civil Service Commission. Public Employment, Termination, Reinstatement of personnel. Civil Service, Applicability of provisions, Termination of employment, Reinstatement of personnel. Employment, Termination, Retaliation. Damages, Additur. Practice, Civil, Additur, Attorney’s fees. Housing Authority. Municipal Corporations, Housing authority. Civil action commenced in the Superior Court Department on November 13, 2009. The case was heard by Robert J. Kane, J., and motions for judgment notwithstanding the verdict, for reinstatement, and for a new trial or for additur were heard by him. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Maria M. Scott for the plaintiff. David D. Dowd for the defendant. SPINA, J. David Fernandes was employed by the Attleboro Housing Authority (AHA) as a maintenance mechanic II from January 16, 2001, until his termination on May 29, 2009. Approximately six months later, he commenced an action in the Superior Court against the AHA for alleged violations of the Wage Act, G. L. c. 149, §§ 148 and 148A. Fernandes claimed that the AHA violated § 148 by intentionally misclassifying his position as maintenance mechanic II, instead of maintenance mechanic I, and thereby failing to pay him the wages to which he was entitled. Fernandes also alleged that the AHA violated § 148A by terminating him in retaliation for complaining about nonpayment of earned wages and filing a complaint with the Attorney General’s office.[1] Following a trial in January, 2012, a jury, in response to special questions, found in favor of Fernandes on both claims. The jury awarded damages against the AHA in the amount of $ 2,300 for unpaid wages due to misclassification, and $ 130,000 for lost wages due to retaliation. The parties then filed numerous posttrial motions. Of relevance to the present appeal, the AHA filed a motion for judgment notwithstanding the verdict, contending that the Superior Court lacked subject matter jurisdiction over Fernandes’s wage and retaliation claims because, as a housing authority employee, Fernandes was required to bring such claims before the Civil Service Commission (commission) for resolution. Fernandes filed a motion for reinstatement to the position of maintenance mechanic […]
Fyffe v. Massachusetts Bay Transportation Authority, et al. (Lawyers Weekly No. 11-129-14)
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-186 Appeals Court COLLEEN FYFFE vs. MASSACHUSETTS BAY TRANSPORTATION AUTHORITY & another.[1] No. 13-P-186. Suffolk. January 14, 2014. – October 6, 2014. Present: Trainor, Graham, & Agnes, JJ. Massachusetts Bay Transportation Authority. Practice, Civil, Argument by counsel, Conduct of counsel, Opening statement, Instructions to jury, New trial. Damages, Remittitur. Civil action commenced in the Superior Court Department on May 11, 2010. The case was tried before Judith Fabricant, J., and a motion for a new trial or remittitur was heard by her. John J. Bonistalli (Jonathan P. Feltner with him) for the defendants. Thomas R. Murphy for the plaintiff. AGNES, J. As we explain in detail below, this is a case where, contrary to established law and the trial judge’s numerous cautions and rulings, plaintiff’s experienced trial counsel[2] improperly argued (1) facts that were not in evidence, (2) concepts of liability, despite the parties’ stipulation that the only triable issues related to damages, and (3) that the jury were the conscience of the community and had a duty in this case to safeguard users of public transportation in the future. Plaintiff’s counsel also wilfully disregarded the judge’s explicit rulings on a number of issues and, by defiantly challenging her rulings in front of the jury, undermined her attempts to remedy his misconduct. As a result of these numerous transgressions by plaintiff’s trial counsel, the judge was required to “conduct[] the trial under severe and exasperating handicaps.” Stavisky v. Slotnik, 19 Mass. App. Ct. 1028, 1030 (1985). Mindful of the deference we owe the judge’s determination on a motion for a new trial whether such errors were prejudicial, in this case our review of the record of this very brief trial (two full days of testimony) persuades us that the errors committed by plaintiff’s counsel, considered in their totality, “injuriously affected the substantial rights” of the defendants and deprived them of a fair trial. G. L. c. 231, §§ 119, 132. Accordingly, despite the judge’s commendable patience, we vacate the judgment and remand for a new trial. Procedural background. The plaintiff Colleen Fyffe was injured on May 8, 2009, when the Massachusetts Bay Transportation Authority (MBTA) trolley in which she was riding struck another trolley on the MBTA’s Green Line in Boston. She filed suit in Superior Court against the MBTA and […]
Categories: News Tags: 1112914, Authority, Fyffe, Lawyers, massachusetts, Transportation, Weekly
Figgs v. Boston Housing Authority (Lawyers Weekly No. 10-141-14)
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 SJC-11532 TRENEA FIGGS vs. BOSTON HOUSING AUTHORITY. Suffolk. April 8, 2014. – August 18, 2014. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ.[1] Boston Housing Authority. Housing Authority. Municipal Corporations, Housing authority. Practice, Civil, Action in nature of certiorari. Administrative Law, Hearing, Substantial evidence. Evidence, Hearsay. Civil action commenced in the Boston Division of the Housing Court Department on August 24, 2012. The case was heard by Jeffrey M. Winik, J. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Michael J. Louis & Angela Marcolina for the defendant. Jeremy T. Robin for the plaintff. The following submitted briefs for amicus curiae: Jeffrey C. Turk for Greater Boston Real Estate Board & another. James M. McCreight, Alex Munevar, & Quinten Steenhuis for Massachusetts Coalition for the Homeless & others. Esme Caramello, Deena Greenberg, & Melanie Zuch for Charles Hamilton Houston Institute & another. SPINA, J. Trenea Figgs is a participant in the United States Department of Housing and Urban Development (HUD) Housing Choice Voucher Program, commonly referred to as “Section 8,” administered by the Boston Housing Authority (BHA) pursuant to 42 U.S.C. § 1437f (2012) and implementing HUD regulations.[2] On November 22, 2011, the BHA notified Figgs of its intent to terminate her participation in the Section 8 program due to allegations of serious or repeated violations of her lease. Several weeks earlier, Boston police officers had executed a search warrant for Figgs’s apartment in connection with a criminal investigation of her brother, Damon Nunes, and had discovered, among other things, two plastic bags of marijuana, a .380 caliber Ruger pistol, and five rounds of ammunition. Figgs appealed the proposed termination. Following an informal hearing on February 22, 2012, a hearing officer, by decision dated August 6, 2012, upheld the termination of Figgs’s Section 8 housing subsidy. On August 24, 2012, Figgs filed a verified complaint in the Housing Court for injunctive and declaratory relief. She sought to enjoin the BHA from terminating her Section 8 housing subsidy on the ground that the informal hearing failed to satisfy her procedural due process rights under the Fourteenth Amendment to the United States Constitution, and she sought a declaration that the bases for her termination were insufficient. In response, the BHA filed a […]
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 […]