Posts tagged "boston"

Boston Restoration Resources, Inc. v. Pitts, et al. (Lawyers Weekly No. 09-026-18)

COMMONWEALTH OF MASSACHUSETTS   SUFFOLK, ss                                                                                                                                    SUPERIOR COURT 17-1142-C                                             BOSTON RESTORATION RESOURCES, INC.                                                                                v.                                   LORENZO PITTS, INCORPORATED, WILLETTA                                  PITTS-GIVENS, REBECCA MAUTNER, LESLIE                                    BOS, and JAMAICA PLAIN NEIGHBORHOOD                                               DEVELOPMENT CORPORATION                                       MEMORANDUM OF DECISION AND ORDER ON                                 PLAINTIFF’S MOTION TO QUASH DEPOSITION                                       SUBPOENA TO KEEPER OF RECORDS OF                                        UNITED HOUSING MANAGEMENT, LLC     Plaintiff Boston Restoration Resources, Inc. (“BRI”) has brought a Rule 45(d) motion to quash a document subpoena served on non-party United Housing Management, LLC.  The thrust of BRI’s motion is that the subpoena is unreasonably over-broad and burdensome, and seeks documents relevant only to a previously asserted theory of damages it has since abandoned.  United Housing Management has to date defied the subpoena served upon it, but has not joined this motion.   Mass. R. Civ. P. 45(f)(3) provides that “[a]ny person subject to a subpoena under this rule may move the court (A) for a protective order under rule 26(c) or (B) to be deemed entitled to any protection set forth in any discovery or procedural order previously entered in the case.”  Inasmuch as BRI is not “the person subject to subpoena” under Rule 45, and does not maintain that production of the documents sought thereby would invade any legal right or privilege it has in the same, it lacks standing to assert objections on behalf of United Housing Management.  See In re Stone & Webster Securities Litigation, 2006 WL 2818489, at *2-3 (D. Mass. 2006) (a party has no standing to object to a subpoena directed to a non-party); Langford v. Chrysler Motors Corp., 513 F.2d 1121, 1126 (2d Cir. 1975) (“In the absence of a claim of privilege a party usually does not have standing to object to a subpoena addressed to a non-party witness.”).  See generally P. Lauriat et al., Discovery, 49A Mass. Practice _ 8:23, at 289 and n.21 (3d ed. 2017) (“In general a party has no standing to assert objections to a subpoena on behalf of a non-party.”). It is true, as BRI points out, that “[a] party has standing to quash a subpoena served on a non-party if he or she has a personal right or privilege with respect to the requested information.”  Enargy Power (Shenzhen) Co. Ltd. v. Xiaolong Wang, 2014 WL 2048416, at *2 n.4 (D. Mass. May 6, 2014).  See also P. Lauriat, supra, 49A Mass. Practice _ 8:23, at 289 (“A party may assert objections as to a subpoena served on a non-party … where the objections relate to rights of that party rather than the non-party.”).  This is not the case in BRI’s present motion.  BRI […]

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Posted by Massachusetts Legal Resources - March 16, 2018 at 5:35 pm

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Boston Segway Tours, Inc., et al. v. Danley, et al. (Lawyers Weekly No. 09-066-17)

COMMONWEALTH OF MASSACHUSETTS   SUFFOLK, ss.                                                                             SUPERIOR COURT                                                                                                             CIV. NO. 15-1498 BLS 2     BOSTON SEGWAY TOURS, INC. and IAN MEYER, Plaintiffs,   vs.                           ALLAN DANLEY and EASTERA PHOU Defendants   MEMORANDUM OF DECISION AND ORDER ON CROSS MOTIONS FOR PARTIAL SUMMARY JUDGMENT   This case began as a dispute over ownership interests in a company, Boston Segway Tours, Inc. (BST) that offers Boston tours by the use of Segways.  Plaintiff Ian Meyer claimed that he was the full owner, whereas the defendant Allan Danley claimed that he was the owner.  Beyond the question of ownership, each party asserted multiple common law counts against the other, as well as violations of Chapter 93A. Following a jury -waived trial on the limited question of ownership, this Court issued a written opinion determining that Meyer was the full owner.  See Findings of Fact and Rulings of Law dated January 12, 2016 (the January 2016 Decision).  Shortly thereafter, Danley filed for bankruptcy and a Trustee was appointed by the Bankruptcy Court.  The Trustee, on behalf of Danley, filed an Amended Counterclaim in this action.  The case is now before the Court on Cross Motions for Partial Summary Judgment as to the Amended Counterclaim. Plaintiff seeks summary judgment in his favor on the following counts of the Amended Counterclaim:  Count I (breach of contract), Count II (monies owed), Count III (unjust enrichment), Count IV (fraud), Count V (breach of the covenant of good faith and fair dealing) and Count VI (violation of chapter 93A).  Before the hearing on the plaintiff’s motion, the defendant agreed to dismiss Counts IV through VI, so that those counts are no longer at issue.  As to the remaining Counts (I through III), the defendant cross moved for summary judgment in his favor.  The basis for these counts is  Danley’s claim that he provided consulting services and equipment to BST and Meyer for which he is entitled to payment.  Those counts also encompass Danley’s claim that he loaned Meyer $ 73,200 which has not been fully repaid.  This Court concludes that Danley is entitled to summary judgment in his favor as to liability, with the precise amount of damages to be determined at later hearing. The Court reaches this conclusion based on the fact findings it rendered in its January 2016 Decision.  As explained in that decision, Danley had originally formed the Segway tour company under the name Boston by Segway, but in 2011 decided to sell it to Meyer.  This Court found that in order to facilitate that transfer of ownership: Danley agreed to lease his fleet of Segways to the new company and would front the startup costs by way of a personal […]

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Posted by Massachusetts Legal Resources - January 11, 2018 at 4:24 am

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Boston Scientific Corporation v. Takahashi, et al. (Lawyers Weekly No. 09-060-17)

COMMONWEALTH OF MASSACHUSETTS   SUFFOLK, so                                                                                            SUPERIOR COURT CIVIL ACTION 2017-02976 BLS 2     BOSTON SCIENTIFIC CORPORATION, Plaintiff   vs.   LYNN TAKAHASHI, GENE ZIGRA, JONATHAN OLSEN, and NUVECTRA CORPORATION Defendants   MEMORANDUM OF DECISION AND ORDER ON PLAINTIFF’S MOTION TO DISMISS FOR FORUM NON CONVENIENS   This is an action against three former employees of the plaintiff Boston Scientific Corporation (Boston Scientific) and their current employer, the  Nuvectra Corporation (Nuvectra) alleging misappropriation of confidential information and violations of a nonsolicitation clause in the individual defendants’ employment agreements with plaintiff.  Each  of those agreements contains clauses designating Massachusetts as the forum and Massachusetts law as the governing law for any legal disputes arising from the agreements.  The defendants now move to dismiss the action based on the doctrine of forum non conveniens.   This Court concludes that the Motion must be Denied. In support of their Motion, the defendants point out that at all relevant times, the former employees worked and resided in California.  Before their departure in September of this year, they worked for Boston Scientific’s sale team in the Los Angeles area; they currently work for Nuvectra, a competitor of Boston Scientific, as part of its sales team in the same geographical region.  Relying on G.L.c. 223 § 5A, the defendants argue that “the interest of substantial justice” supports dismissal of this action because the balance of private and public concerns favor a California forum.  Gianocostas v. Interface Grp.-Massachusetts Inc., 450 Mass. 715, 723 (2008).   In particular, they argue that  California’s strong policy against the enforcement of restrictive covenants suggests that this case is best decided in a California forum.  This Court is not convinced. The doctrine of forum non conveniens   “leaves much to the discretion of the court to which plaintiff’s resorts…”  Gulf Oil Corp., v. Gilbert, 330 U.S. 501, 508 (1947) (outlining the public and private concerns a court should consider in applying the doctrine).  However, this Court must exercise that discretion keeping in mind that there is a strong presumption in favor of plaintiff’s choice of forum.  “Assuming jurisdiction and venue are proper, dismissal on the ground of forum non conveniens will rarely be granted; ‘unless the balance is strongly in favor of the defendant, the plaintiff’s choice of forum should rarely be disturbed.’” Kearsarge Metallurgical Corp. v. Peerless Ins. Co., 383 Mass. 162 , 169 (1981) (footnote omitted), quoting from New Amsterdam Cas. Co. v. Estes, 353 Mass. 90 , 95 (1967). See also Joly v. Albert Larocque Lumber, Ltd., 397 Mass. 43 (1986).   In the instant case, the defendants face an additional  hurdle in convincing this Court that dismissal is warranted in that each of the employment agreements designates Massachusetts as an appropriate forum.  Indeed, in one of […]

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Posted by Massachusetts Legal Resources - January 9, 2018 at 1:02 pm

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Boston Scientific Corporation v. Takaahashi, et al. (Lawyers Weekly No. 09-012-17)

1 COMMONWEALTH OF MASSACHUSETTS SUFFOLK, so SUPERIOR COURT CIVIL ACTION NO. 2017-02976 BLS 2 BOSTON SCIENTIFIC CORPORATION, Plaintiff vs. LYNN TAKAAHASHI, GENE ZIGRA, JONATHAN OLSEN, And NUVECTRA CORPRATION Defendants MEMORANDUM OF DECISION AND ORDER ON PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION This is an action against three former employees of the plaintiff Boston Scientific Corporation (Boston Scientific) and their current employer, the defendant Nuvectra Corporation. The three individual defendants all reside in California and performed work for Boston Scientific in California until they resigned from the company on September 7, 2017. Boston Scientific alleges that upon their departure, the three took with them proprietary information relating to customer pricing and solicited least one Boston Scientific employee to join them at Nuvectra. Boston Scientific now seeks a court order prohibiting the employees from using or disclosing this information or from soliciting any other Boston Scientific employees. The request also seeks to prevent the individuals from doing any work for Nuvectra for some undefined period of time while an “accounting” is done of the information they allegedly took, even though their employment agreements with Boston Scientific do not include any provisions preventing them from working for a competitor or from soliciting Boston Scientific customers. In connection with this request, the Court has considered various affidavits, including those of the three employees who specifically deny taking any confidential information. This 2 Court has also considered the fact that Nuvectra itself took certain steps in advance of any litigation to ensure that the individuals returned all electronic devices they used while working at Boston Scientific, and has temporarily sidelined (or “benched”) them during this process. Based on these submissions as well as the memoranda and arguments of the parties, this Court concludes that the plaintiff has not demonstrated that it has a reasonable likelihood of success on the merits, or that it would suffer any irreparable harm if the injunction did not issue. Packaging Industries v. Cheney, 380 Mass. 609, 616, 617 (1980). Of particular importance to the Court’s conclusion is the following: 1. The information that Boston Scientific alleges was wrongfully taken were Product Billing Forms, which contain serial numbers of the products sold together with their price. In order for a nondisclosure agreement to be enforceable, the information it protects must be confidential, however. See Dynamic Research Corp. v. Analytic Scis. Corp., 9 Mass.App.Ct. 254, 278 (1980). Conceding that the forms contain no trade secrets, Boston Scientifics argues that they are nevertheless worthy of protection because they include “pricing packages” that are customized to meet the needs of its individual customers. Clearly, this pricing information has been shared with each customer, however, since the forms are generated in order to bill the customer; […]

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Posted by Massachusetts Legal Resources - October 5, 2017 at 5:48 am

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Massachusetts Bay Transportation Authority v. Boston and Maine Corporation, et al. (Lawyers Weekly No. 12-124-17)

COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT CIVIL ACTION No. 17-00153-BLS1 MASSACHUSETTS BAY TRANSPORTATION AUTHORITY vs. BOSTON AND MAINE CORPORATION & others1 MEMORANDUM OF DECISION AND ORDER ON PLAINTIFF MASSACHUSETTS BAY TRANSPORTATION AUTHORITY’S PARTIAL MOTION TO DISMISS DEFENDANTS’ COUNTERCLAIMS Plaintiff, Massachusetts Bay Transportation Authority (MBTA), filed this action for declaratory and injunctive relief against defendants, Boston and Maine Corporation, Springfield Terminal Railway Company, and Pan Am Southern LLC (referred to collectively as “Pan Am”). The dispute involves the implementation of positive train control (PTC), a safety system aimed at preventing train accidents. Pan Am alleged eleven counterclaims against the MBTA. MBTA now moves to dismiss three of the counterclaims pursuant to Mass. R. Civ. P. 12(b)(6). The three counterclaims allege misrepresentation (Count VIII), promissory/equitable estoppel (Count IX), and violation of G.L. c. 93A, § 11 (Count X). For the reasons stated below, the MBTA’s motion to dismiss is allowed. BACKGROUND The facts as revealed by Pan Am’s counterclaims are as follows. The MBTA is a body politic and corporate and a political subdivision of the 1 Springfield Terminal Railway Company and Pan Am Southern LLC. Commonwealth of Massachusetts. It operates bus, subway, commuter rail, and ferry systems in and around Boston, Massachusetts. The Pan Am defendants operate freight lines over tracks that, in some instances, are owned and/or used by the MBTA. Since 2010, Pan Am worked closely and cooperatively with the MBTA to plan and prepare for the implementation of PTC on tracks over which both parties operate. The parties worked to comply with a 2008 federal mandate requiring that PTC be implemented on certain rail lines, including lines that carry certain minimum levels of passenger traffic. PTC is designed to prevent train-to-train collisions, derailments resulting from excessive speed, and other types of accidents. Generally, PTC uses a combination of on-board and rail-side technology to track and control train movements on the rail lines outfitted with this technology. In this dispute, the rail lines affected include both MBTA-owned trackage, over which Pan Am operates freight trains pursuant to a reserved freight easement, and Pan Am-owned trackage, over which the MBTA initiated and expanded commuter rail operations at the end of 2016. According to Pan Am, under federal law, PTC must be implemented on the rail lines at issue because the MBTA operates passenger trains on them. Absent the MBTA’s use of these rail lines, no PTC system is required. In addition, freight trains may not operate on tracks handling passenger traffic that are required to have PTC unless those freight trains are equipped with a PTC system that is compatible with the commuter rail’s PTC system. After the federal government imposed the 2008 PTC requirements, Pan Am alleges that […]

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Posted by Massachusetts Legal Resources - September 7, 2017 at 1:36 am

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City of Boston v. Boston Police Patrolmen’s Association (Lawyers Weekly No. 10-118-17)

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-12077   CITY OF BOSTON  vs.  BOSTON POLICE PATROLMEN’S ASSOCIATION.       Suffolk.     December 5, 2016. – July 12, 2017.   Present:  Gants, C.J., Lenk, Hines, Gaziano, Lowy, & Budd, JJ.     Arbitration, Confirmation of award, Authority of arbitrator.  Municipal Corporations, Police.  Police, Discharge.  Public Employment, Police, Termination.  Public Policy.       Civil action commenced in the Superior Court Department on July 22, 2013.   The case was heard by Dennis J. Curran, J.   The Supreme Judicial Court granted an application for direct appellate review.     Kay H. Hodge (Geoffrey R. Bok also present) for the plaintiff. Alan H. Shapiro (John M. Becker also present) for the defendant.     HINES, J.  This is an appeal from a judgment of the Superior Court confirming an arbitrator’s award reinstating a Boston police officer terminated for using a choke hold in arresting an unarmed suspect for disorderly conduct and making false statements in the ensuing departmental investigation.  The arbitrator found that the officer, David Williams, had applied a choke hold, but that the choke hold had not actually choked the citizen, that the force was reasonable in the circumstances, and that the officer’s subsequent characterization of events was thus truthful.  Accordingly, the arbitrator ruled that the city of Boston (city) lacked just cause to terminate Williams, and ordered his reinstatement with back pay. In July, 2013, the city filed a complaint in the Superior Court to vacate the arbitrator’s award.  The court dismissed the complaint in June, 2015, and the city appealed.  We granted the city’s application for direct appellate review.  Because the award neither exceeds the arbitrator’s authority nor violates public policy, and because we are not free to vacate it where no underlying misconduct was found, we affirm. Background.  a.  Facts.  On January 18, 2012, the city discharged Williams based on specifications arising from a disorderly conduct arrest on March 16, 2009.  The specifications were use of excessive force, in violation of Boston police department rule 304 on use of nonlethal force, and untruthfulness in the subsequent investigation, in violation of rule 102, § 23, on truthfulness.  Chosen by mutual agreement of the city and the Boston Police Patrolmen’s Association (union) pursuant to a collective bargaining agreement (CBA), an arbitrator held three days of hearings, concluded that the city had proved neither charge, and ordered Williams’s reinstatement […]

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Posted by Massachusetts Legal Resources - July 13, 2017 at 12:21 am

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Walker, et al. v. Boston Medical Center Corp., et al. (Lawyers Weekly No. 12-081-17)

  1   COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss SUPERIOR COURT CIVIL ACTION 2015-01733-BLS1 KAMYRA WALKER and another,1 1 Anne O’ Rourke 2 MDF Transcription, LLC and Richard J. Fagan. on behalf of themselves and other similarly situated vs. BOSTON MEDICAL CENTER CORP. and others 2 MEMORANDUM OF DECISION AND ORDER ON DEFENDANT BOSTON MEDICAL CENTER CORP.’S MOTION FOR SUMMARY JUDGMENT In March 2014, defendant Boston Medical Center, Corp. (BMC) learned that another health care provider had inadvertently accessed a BMC patient’s medical information on a website maintained by defendant MDF Transcriptions, LLC (MDF), a medical transcription company used by both BMC and thisother provider.  It sent a letter to all its patients who had records that had been transcribed by MDF informingthem that there might have been unauthorized access to their medical information. After receiving this letter, the plaintiffs Kamyra Walker and Anne O’Rourke,filedthisputative classaction against BMC, MDF, and Richard Fagan, MDF’s owner and manager.  They assertthat the defendants are liableto them, and all other similarly situated BMC patients,for failing to ensure that their medical information was kept confidential.  The case is before the court on BMC’smotionfor summary judgment. BMCargues, among other things, that the plaintiffs lack standing to maintain the claims asserted2   against it.3 For the reasons that follow, the motion isALLOWED. 3 BMC also argues that the complaint fails to state a claim on which relief may be granted. Having found that the plaintiffs lack standing to bring their claims, the court does not reach this issue. 4 “FTP, or file transfer protocol, is a protocol for exchanging files over any computer network that supports the TCP/IP protocol (such as the Internet or an intranet).  SRI Int’l Inc. v. Internet Sec. Sys., 647 F. Supp. 2d 323, 332 n.2 (D. Del. 2009). 5 Plaintiffs note that JosephCumillus, BMC’s 30(b)(6) deponent, stated in his deposition:  “it was concerning to me that this information was on an FTP site that wasn’t password protected.”  The court understands this to refer BACKGROUND For several years, certain BMC medical practices used MDF to transcribe their physicians’ audio recordedpatientnotes.  The transcriptions were available through a “file transfer protocol” (FTP or .ftp) site maintained by MDF.4 On March 4, 2014, Pam Bronson of Access Sports Medicine(ASM), anotherMDF customer, telephoned BMC.  She informed BMC that she saw a BMC transcription record when she accessed MDF’s transcription portalusing her ASM user name and password.  In response, BMC contacted MDF,and MDF took down the FTP site.  Shortly thereafter, BMC terminated its relationship with MDF and notified patients, including the plaintiffs, of what had occurred. The notification letter sent to the plaintiffs informed them that their patient records from office visits with physicians “were inadvertently made accessible to […]

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Posted by Massachusetts Legal Resources - July 4, 2017 at 5:18 am

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477 Harrison Ave., LLC v. JACE Boston, LLC, et al. (Lawyers Weekly No. 10-083-17)

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-12150   477 HARRISON AVE., LLC  vs.  JACE BOSTON, LLC, & another.[1]       Suffolk.     January 5, 2017. – May 23, 2017.   Present:  Gants, C.J., Botsford, Lenk, Hines, Gaziano, Lowy, & Budd, JJ.[2]     “Anti-SLAPP” Statute.  Constitutional Law, Right to petition government.  Practice, Civil, Motion to dismiss.  Abuse of Process.  Consumer Protection Act, Unfair or deceptive act.       Civil action commenced in the Superior Court Department on March 23, 2015.   A special motion to dismiss was heard by Dennis J. Curran, J.   The Supreme Judicial Court granted an application for direct appellate review.     Mark S. Furman (Emily C. Shanahan also present) for the defendants. Andrew E. Goloboy (Ronald W. Dunbar, Jr., also present) for the plaintiff.     LENK, J.  This case involves the application of G. L. c. 231, § 59H, the “anti-SLAPP” statute, to a dispute between adjoining building owners.  In 2011, the plaintiff purchased a parcel of property located at 477 Harrison Avenue in Boston with the goal of redeveloping it.  The defendants own an abutting parcel.[3]  Over the course of the next several years, the defendants opposed the plaintiff’s redevelopment plans in various legal and administrative arenas.  The plaintiff eventually filed a complaint against the defendants, raising claims of abuse of process and a violation of G. L. c. 93A, § 11.  The defendants responded by filing a special motion to dismiss pursuant to G. L. c. 231, § 59H. A Superior Court judge denied the motion, the defendants appealed, and we allowed their application for direct appellate review. We consider first whether the defendants have met their threshold burden under the anti-SLAPP statute of showing that each claim is solely based on the defendants’ petitioning activity.  See Duracraft Corp. v. Holmes Products Corp., 427 Mass. 156, 167 (1998) (Duracraft).  We conclude that they have done so as to the abuse of process claim, but not as to the G. L. c. 93A claim.  The judge correctly denied the special motion to dismiss the latter claim.  The defendants having met their threshold burden as to the abuse of process claim, however, the burden then shifts to the plaintiff to show that the petitioning activity on which that claim is based lacks a reasonable basis in law or fact and has caused it actual injury, i.e., is not a valid exercise of the right to petition.  On the record before […]

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Posted by Massachusetts Legal Resources - May 23, 2017 at 10:13 pm

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Benoit v. City of Boston (and a consolidated case) (Lawyers Weekly No. 10-080-17)

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-12204   BRIAN BENOIT  vs.  CITY OF BOSTON (and a consolidated case[1]).       Suffolk.     January 9, 2017. – May 16, 2017.   Present:  Gants, C.J., Lenk, Hines, Gaziano, Lowy, & Budd, JJ.     Workers’ Compensation Act, Compensation, Public employee, Decision of Industrial Accident Reviewing Board, Insurer.  Public Employment, Suspension, Worker’s compensation.  Municipal Corporations, Officers and employees.       Civil action commenced in the Superior Court Department on November 24, 2014.   A motion to dismiss was heard by Linda E. Giles, J.   Civil action commenced in the Superior Court Department on November 3, 2015.   A motion to dismiss was heard by Paul D. Wilson, J.   The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.     John M. Becker for the plaintiff. David Susich (Thomas A. Pagliarulo also present) for the defendant.   LENK, J.  On September 5, 2011, after working almost twenty years as an emergency medical technician and paramedic for the defendant city’s emergency medical services (EMS), the plaintiff suffered an incapacitating ankle injury while transporting a patient.  Unable to work, he received workers’ compensation payments for almost one year pursuant to G. L. c. 152, the workers’ compensation act. Learning that the plaintiff had been indicted on October 31, 2012, on charges relating to misuse of controlled substances intended for EMS patients, the defendant suspended him indefinitely without pay pursuant to G. L. c. 268A, § 25 (suspension statute).  After the defendant, a self-insured municipal employer, discontinued the plaintiff’s workers’ compensation payments, he took the matter to the Department of Industrial Accidents (DIA); the defendant was ordered to restore those payments. When the defendant did not comply with the DIA order, the plaintiff sought enforcement in the Superior Court pursuant to G. L. c. 152, § 12 (1).  The defendant argued then, as now, that the provision of the suspension statute requiring that suspended public employees “shall not receive any compensation or salary during the period of suspension” prevails over the requirements of the worker’s compensation act, and that the DIA order requiring proscribed payments should accordingly not be enforced.  A Superior Court judge agreed and dismissed the enforcement actions.[2]  We conclude that workers’ compensation benefits are not “compensation” as defined in the suspension statute, because they are not payments made “in return for services rendered.”  G. L. c. 268A, § 1 (a).  The Superior Court actions brought by […]

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Posted by Massachusetts Legal Resources - May 16, 2017 at 2:55 pm

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South Boston Elderly Residences, Inc. v. Moynahan (Lawyers Weekly No. 11-054-17)

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-209                                        Appeals Court   SOUTH BOSTON ELDERLY RESIDENCES, INC.  vs.  GERALD MOYNAHAN.     No. 16-P-209.   Suffolk.     December 1, 2016. – May 9, 2017.   Present:  Milkey, Massing, & Sacks, JJ.     Housing.  Summary Process.  Landlord and Tenant, Eviction, Rent, Repairs, Habitability, Reprisal against tenant, Consumer protection, Quiet enjoyment.  Practice, Civil, Summary process, Abatement, Damages.  Damages, Breach of implied warranty of habitability.       Summary Process.  Complaint filed in the Boston Division of the Housing Court Department on February 4, 2013.   The case was heard by Jeffrey M. Winik, J.     Joseph Ross (Ellen Rappaport-Tanowitz also present) for the tenant. W. Paul Needham for the landlord.     MILKEY, J.  The defendant, Gerald Moynahan, rents a small apartment from the plaintiff, South Boston Elderly Residences, Inc. (landlord).  In this summary process action, Moynahan retained possession, which is no longer at issue.  The remaining disputes concern his counterclaims.  A Housing Court judge found that the landlord committed a breach of the warranty of habitability with respect to two different problems with the apartment.  One was a recurring moisture problem that became so bad at one point that mushrooms were growing in the carpeting.  The other was the lack of ventilation due to inaccessible windows.  However, for various reasons that the judge explained in a detailed memorandum of decision, Moynahan received only minor rent abatement damages, and his claim brought pursuant to G. L. c. 93A was dismissed.  The judge also concluded that the landlord had presented clear and convincing evidence to overcome the statutory presumption that its efforts to evict Moynahan were in retaliation for his reporting the sanitary code violations at the apartment.  We affirm in part, reverse in part, and remand for additional proceedings. Background.  In November, 2007, Moynahan moved into unit 13 of an elderly housing complex that the landlord owns in the South Boston neighborhood of Boston.  The building had just been renovated, and Moynahan was the first tenant to move into unit 13 after the renovation.  This ground-floor apartment totals approximately 453 square feet in size.  Because of the sloping topography of the site, part of the unit is subterranean.  Unit 13 has long suffered from moisture and related mold problems.  The specific progression of these problems is important to resolving this case, and we therefore turn to reviewing that history in […]

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Posted by Massachusetts Legal Resources - May 10, 2017 at 7:22 pm

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