Minichiello Bros., Inc., et al. v. Marchese, et al. (Lawyers Weekly No. 09-052-17)
COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT CIVIL ACTION No. 2016-2676 BLS 1 MINICHIELLO BROS., INC., et al vs. JOSEPH MARCHESE, JR., et al MEMORANDUM AND ORDER ON DEFENDANTS’ MOTION FOR PARTIAL SUMMARY JUDGMENT ON COUNT XII OF THEIR COUNTERCLAIMS The parties are engaged in litigation with respect to four different parcels of real estate located in Boston and Everett, Massachusetts. In general, the defendant, Joseph Marchese, Jr., controls ownership of the parcels through various business entities. The plaintiff, Minichiello Bros., Inc., is a tenant conducting commercial activity on the parcels. For ease of reference, I will reference plaintiffs as the Tenant and defendants as the Landlord, with more specific identification used as necessary. The Tenant commenced this litigation claiming that it possessed a right to purchase some of the parcels and that the Landlord was interfering with that right and was otherwise disrupting the Tenant’s business of scrap metal recycling by wrongful acts. The Tenant sought specific performance and damages for breach of contract, fraud, violation of G. L. c. 93A and other claims. The Landlord responded by denying all claims of wrongdoing and by asserting counterclaims against the Tenant. The counterclaims are contained in 23 counts. The counterclaims allege, among other things, breach of contract, right to possession, 1 indemnification, etc.1 This motion concerns Count XII of the Landlord’s counterclaim. That count is a claim for possession of what is called “the Second Street Property.” The Landlord alleges that the Tenant occupies that parcel pursuant to an oral lease. Because it is an oral lease, the Tenant is a tenant at will. The Landlord claims that it has taken the proper steps to terminate the at will tenancy. As a result, the Landlord seeks possession of the property pursuant to G.L. c. 239, § 1, the summary process statute. By this motion for summary judgment on Count XII, the Landlord contends that there are no material factual disputes and that it is entitled to possession as a matter of law. FACTS The following facts are taken from the parties’ Statement of Undisputed Material Facts (“SUMF”). The facts referenced appear to be undisputed, although the SUMF contains a plethora of stated facts propounded by both sides that are “disputed” by the other side. Some of those disputed facts are material, as discussed below. On February 19, 2009, the Tenant entered into a written, commercial lease for property located at 0 Terminal Street in Everett. From that location, the Tenant operated a scrap metal business. Two years later, on May 24, 2011, the Landlord, specifically, Marchese Realty, LLC, purchased the property immediately adjacent to the 0 Terminal Street property. The address of this property is 413 – 421 Second Street […]
Glovsky v. Roche Bros. Supermarkets, Inc. (Lawyers Weekly No. 10-167-14)
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-11434 STEVEN M. GLOVSKY vs. ROCHE BROS. SUPERMARKETS, INC. Norfolk. February 3, 2014. – October 10, 2014. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ.[1] Massachusetts Civil Rights Act. Elections, Ballot. Constitutional Law, Elections. Civil Rights, Coercion. Practice, Civil, Election case, Civil rights, Motion to dismiss. Civil action commenced in the Superior Court Department on April 2, 2012. A motion to dismiss was heard by Renée P. Dupuis, J. The Supreme Judicial Court granted an application for direct appellate review. Steven M. Glovsky, pro se. Mark W. Batten for the defendant. John Pagliaro & Martin J. Newhouse, for New England Legal Foundation & others, amici curiae, submitted a brief. Adam J. Kessel, Frank L. Gerratana, & Sarah R. Wunsch, for American Civil Liberties Union of Massachusetts, amicus curiae, submitted a brief. DUFFLY, J. Steven M. Glovsky sought to solicit signatures for his nomination to public office outside the entrance to a supermarket owned by the defendant, Roche Bros. Supermarkets, Inc. (Roche Bros.), but was informed that Roche Bros. prohibited this activity on its property. Glovsky filed suit in the Superior Court claiming that Roche Bros. had violated his right to equal ballot access under art. 9 of the Massachusetts Declaration of Rights. He requested relief under the Massachusetts Civil Rights Act, G. L. c. 12, § 11I (act), for a violation of his rights “by threats, intimidation or coercion.”[2] Roche Bros.’ motion to dismiss pursuant to Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754 (1974), was allowed. Glovsky appealed, and we granted his application for direct appellate review. We conclude that Glovsky adequately has alleged a right under art. 9 to solicit nominating signatures outside Roche Bros.’ supermarket, but that Roche Bros. did not violate this right “by threats, intimidation or coercion.”[3] Background. The complaint sets forth the following allegations. In early 2012, Glovsky undertook a bid for election to the second district seat on the Governor’s Council. To place his name on the September 6, 2012, State primary ballot, Glovsky needed to submit, by May 29, 2012, nomination papers containing at least 1,000 certified names. On February 7, 2012, Glovsky obtained nomination papers from the office of the Secretary of the Commonwealth and began collecting signatures. On the afternoon of March 14, 2012, Glovsky traveled to a location […]
Sorenti Bros., Inc. v. Commonwealth (Lawyers Weekly No. 10-088-14)
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‑11420 SORENTI BROS., INC. vs. COMMONWEALTH. Barnstable. January 9, 2014. ‑ May 19, 2014. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Eminent Domain, Damages, Extent of taking. Damages, Eminent domain. Way, Public: access. Practice, Civil, Eminent domain proceeding, Instructions to jury. Civil action commenced in the Superior Court Department on September 26, 2006. The case was tried before Christopher J. Muse, J. After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review. John E. Bowen, Assistant Attorney General (Joseph Callanan, Assistant Attorney General, with him) for the Commonwealth. Nelson G. Apjohn (Robyn Smith Maguire with him) for the plaintiff. BOTSFORD, J. This eminent domain case involves the Sagamore Bridge Flyover Project (flyover project) in Bourne that, among other changes, eliminated the Sagamore traffic rotary (rotary) just north of the bridge. The plaintiff, Sorenti Bros., Inc. (Sorenti), owns parcels of land near the former rotary; it operates a gasoline station on one of them. Sorenti commenced this action in the Superior Court, seeking damages from the Commonwealth on account of the temporary and permanent land takings that the Commonwealth made in connection with the flyover project. At the conclusion of a jury trial, judgment entered awarding Sorenti almost $ 3 million in damages. The Commonwealth appealed, and the Appeals Court, in an unpublished memorandum and order issued pursuant to its rule 1:28, affirmed. Sorenti Bros., Inc. v. Commonwealth, 82 Mass. App. Ct. 1123 (2012). The case is before us on further appellate review. At issue is the applicability of G. L. c. 81, § 7C (§ 7C), to Sorenti’s gasoline station parcel (Shell parcel), and whether the elimination of a portion of Canal Street as part of the flyover project resulted in a substantial, and compensable, impairment of access to that parcel. We conclude that (1) under § 7C, for a property owner to be entitled to damages on account of the construction of a limited access highway, the highway must be constructed in whole or in part over the public way on which the owner’s property directly fronts or abuts; and (2) under G. L. c. 79, § 12 (§ 12), when a partial taking of property has been made, the property owner is entitled to recover damages for loss of access to […]