Lu v. City of Boston, et al. (Lawyers Weekly No. 10-127-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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-11611 FREIDRICH LU vs. CITY OF BOSTON & others.[1] July 17, 2014. Supreme Judicial Court, Superintendence of inferior courts. Declaratory Relief. Practice, Civil, Pendency of prior action. The plaintiff, Freidrich Lu, filed a complaint in the county court pursuant to G. L. c. 231A, § 1, essentially seeking a judgment declaring that the Trustees of the Boston Public Library (trustees) are not a subsidiary corporation, division or unit of the city of Boston (city), that the trustees and the city “are two separate, independent legal entities,” and that members of the city of Boston Law Department (law department) may not provide legal representation to the trustees or library employees. A single justice of this court denied Lu’s motion for summary judgment, dismissed the complaint, and denied postjudgment relief. Lu appeals. We affirm. Background. This declaratory judgment action has its genesis in a civil rights action that Lu commenced in the United States District Court for the District of Massachusetts against the defendant trustees and a library employee, defendant George Hulme. In general, Lu alleged that, in violation of his civil rights, he was denied entrance to the Boston Public Library. A judge of that court denied Lu’s motion seeking disqualification of the law department as counsel for the trustees and Hulme, and concluded that “[t]he [t]rustees constitute a municipal entity that oversees the Library as a department of the [c]ity of Boston,” and that the law department may represent the trustees and Hulme. Lu then commenced this action in the county court, seeking a contrary determination. Discussion. The complaint in this case essentially deals with the same controversy that exists between the parties in the Federal litigation. As such, it does not present a proper occasion for declaratory relief. Jacoby v. Babcock Artificial Kidney Ctr., Inc., 364 Mass. 561, 562 (1974). The single justice correctly concluded that: “For all practical purposes, the only ‘actual controversy’ the plaintiff claims is his challenge to the [Federal] judge’s denial of his motion to disqualify counsel, which he seeks to undermine by obtaining a contrary legal determination from this court regarding the relationship between the [t]rustees and the [c]ity of Boston. This is not an appropriate ground to bring a declaratory judgment claim. If the plaintiff wishes to appeal [the Federal District Court judge’s] denial of his motion to disqualify […]
Rodriguez v. City of Somerville (Lawyers Weekly No. 11-077-14)
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‑1422 Appeals Court RODRIGO RODRIGUEZ[1] vs. CITY OF SOMERVILLE. No. 13-P-1422. Middlesex. May 5, 2014. – July 1, 2014. Present: Grasso, Grainger, & Milkey, JJ. Massachusetts Tort Claims Act. Practice, Civil, Presentment of claim under Massachusetts Tort Claims Act, Interlocutory appeal. Municipal Corporations, Governmental immunity, Liability for tort. Notice, Claim under Massachusetts Tort Claims Act. Civil action commenced in the Superior Court Department on March 29, 2013. A motion to dismiss was heard by Dennis J. Curran, J. Jason D. Grossfield, Assistant City Solicitor, for the defendant. Stephen M. Born for the plaintiff. GRASSO, J. In this appeal, we consider whether the doctrine of present execution applies to, and renders immediately appealable, the denial of a motion to dismiss that alleges inadequate presentment under the Massachusetts Tort Claims Act (Act). See G. L. c. 258, § 4, as amended through St. 1989, c. 161. We conclude that the doctrine of present execution does not apply in such circumstances. The presentment requirement imposed on a tort claimant under the Act is not an immunity from suit preserved to the public employer, such as is contained in other provisions of the Act. See G. L. c. 258, § 10. Rather, presentment is a condition precedent imposed on a claimant that may be waived by the public employer. Accordingly, we dismiss the appeal of the city of Somerville (city). Background. On April 14, 2011, Rodrigo Rodriguez, a second grade student at the Argenziano School in Somerville, was injured when a metal door frame fell off the front door of the school and struck him in the head. On May 11, 2011, an attorney representing the minor and his parent and next friend, Edgar Rodriguez, sent a letter to the mayor of Somerville,[2] the contents of which are discussed briefly below. On March 29, 2013, Edgar Rodriguez filed suit against the city on behalf of his son, alleging negligence. Among its other allegations, the complaint asserted that “[t]imely and proper presentment was made to City of Somerville pursuant to Massachusetts General Laws Chapter 258, section 4.” Prior to answering, the city moved to dismiss the complaint pursuant to Mass.R.Civ.P. 12(b)(6), 365 Mass. 754 (1974), alleging that the attorney’s letter was an insufficient presentment under the Act.[3] After hearing, a judge of the Superior Court denied the city’s motion, concluding that the attorney’s letter […]
Wilkins v. City of Haverhill (Lawyers Weekly No. 10-079-14)
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‑11417 MICHELLE WILKINS vs. CITY OF HAVERHILL. Essex. January 9, 2014. ‑ May 9, 2014. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Negligence, One owning or controlling real estate, Snow and ice, School. Immunity from Suit. Snow and Ice. School and School Committee. Words, “The public.” Civil action commenced in the Superior Court Department on September 14, 2011. The case was heard by Robert A. Cornetta, J., on a motion for summary judgment. The Supreme Judicial Court granted an application for direct appellate review. John A. Finbury (Gina T. Dussi with him) for the plaintiff. John J. Davis (Jason W. Crotty with him) for the defendant. Stephen J. Finnegan, for Massachusetts Association of School Committees, Inc., amicus curiae, submitted a brief. J. Michael Conley, Thomas R. Murphy, Alex G. Philipson, & Benjamin R. Zimmerman, for Massachusetts Academy of Trial Attorneys, amicus curiae, submitted a brief. DUFFLY, J. Michelle Wilkins was injured when she slipped and fell on ice that had accumulated on the walkway of a public school owned and operated by the city of Haverhill (city). At the time of the fall, early in the evening of February 10, 2011, Wilkins was on the city’s premises to attend a scheduled parent-teacher conference. Wilkins filed a complaint in the Superior Court against the city alleging that its negligence caused her injuries. In its motion for summary judgment, the city raised as a defense G. L. c. 21, § 17C, which bars claims of ordinary negligence against a landowner, including a government entity, that has opened its land to the public for recreational, educational, or other enumerated purposes, without charging a fee. A Superior Court judge allowed the city’s motion; Wilkins appealed, and we allowed her application for direct appellate review. Because we conclude that the limitation on liability provided by G. L. c. 21, § 17C, extends solely to land open to the general public, and during the relevant time the school was open only to a discrete group and not to the general public, we reverse. Discussion. a. Standard of review. “Summary judgment is appropriate where there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law.” HipSaver, Inc. v. Kiel, 464 Mass. 517, 522 (2013). See Mass. R. Civ. […]
Want to Ride Your Bike On the Common? City Still Says No
After discussions among top city officials and leaders, you still can't ride bikes in three major Boston parks. South End Patch News
City of Boston v. Boston Police Superior Officers Federation (Lawyers Weekly No. 10-155-13)
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‑11238 CITY OF BOSTON vs. BOSTON POLICE SUPERIOR OFFICERS FEDERATION. Suffolk. April 2, 2013. ‑ August 9, 2013. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Boston. Police, Assignment of duties, Collective bargaining. Public Employment, Police, Transfer, Collective bargaining. Municipal Corporations, Police, Collective bargaining. Labor, Police, Collective bargaining. Civil Service, Police, Collective bargaining. Arbitration, Collective bargaining, Confirmation of award, Authority of arbitrator. Contract, Collective bargaining contract. Civil action commenced in the Superior Court Department on August 18, 2009. The case was heard by Bonnie H. MacLeod, J. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. David M. Connelly (Robert J. Boyle, Jr., with him) for the plaintiff. Alfred Gordon for the defendant. DUFFLY, J. After the city of Boston (city) transferred a Boston police sergeant who served as a union representative, the Boston Police Superior Officers Federation (union) sought to enforce a provision of its collective bargaining agreement with the city, prohibiting the involuntary transfer of certain union representatives between stations or assignments. Following binding arbitration mandated under the collective bargaining agreement, an arbitrator found that the city had violated the collective bargaining agreement and awarded the officer damages and reinstatement to his original position. The city filed a motion in the Superior Court, pursuant to G. L. c. 150C, § 11, to vacate the award. A Superior Court judge denied the city’s motion and allowed the union’s cross motion to confirm the award. The city appealed, and we transferred the case to this Court on our own motion. The city argues, and we agree, that assignment and transfer of officers within the Boston police department (department) are nondelegable statutory powers of the Boston police commissioner (commissioner), see St. 1906, c. 291, § 10, as appearing in St. 1962, c. 322, § 1, and, accordingly, that the grievance arbitrator exceeded his authority in reversing the officer’s transfer. Background and prior proceedings. In 1989, the city and the union underwent interest arbitration[1] as part of a collective bargaining process. The city had proposed a provision that would have prohibited the involuntary transfer of union representatives, but the parties were unable to reach agreement on how many officers would be covered by that provision. The proposal followed several years of […]
Got Food Scraps? City Launches Compost Program
Food scraps and other compostable materials can be taken to farmers markets in Dorchester, Allston and Jamaica Plain through October. South End Patch News
McLaughlin v. City of Lowell (Lawyers Weekly No. 11-093-13)
NOTICE: The slip opinions and orders posted on this Web site are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. This preliminary material will be removed from the Web site once the advance sheets of the Official Reports are published. 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 James McLAUGHLIN vs. CITY OF LOWELL. No. 11-P-2072. Middlesex. February 7, 2013. – July 25, 2013. Fire Fighter, Retirement, Incapacity. Municipal Corporations, Fire department, Retirement board. Public Employment, Accidental disability retirement, Reinstatement of personnel. Public Employee Retirement Administration Commission. Division of Administrative Law Appeals. Contributory Retirement Appeal Board. Administrative Law, Judicial review. Collateral Estoppel. Practice, Civil, Summary judgment, Judgment notwithstanding verdict. Employment, Discrimination. Anti-Discrimination Law, Employment, Handicap. CIVIL ACTION commenced in the Superior Court Department on May 24, 2004. Motions for summary judgment were heard by Joseph M. Walker, III, J., and the case was tried before him. Betsy L. Ehrenberg (Alfred Gordon with her) for the plaintiff. Kimberley A. McMahon, Assistant City Solicitor, for the defendant. Present: Cypher, Kantrowitz, & Fecteau, JJ. FECTEAU, J. The plaintiff, James McLaughlin, and the defendant, city of Lowell (city), each appeal from orders and judgments of a judge of the Superior Court. McLaughlin, a former fire department captain retired on a disability pension, sought restoration to service. He appeals the entry of summary judgment in favor of the city with respect to his reinstatement claim under G.L. c. 32, § 8(2). Having successfully brought handicap discrimination and interference claims, however, which resulted in jury verdicts in his favor, McLaughlin avers that the trial judge improperly eviscerated the remedial scheme of G.L. c. 151B and arbitrarily reduced the amount of his attorney’s fees and costs. [FN1] On the other hand, the city contends that the Superior Court lacked jurisdiction over McLaughlin’s discrimination claims and erroneously allowed McLaughlin to relitigate matters already decided before the Division of Administrative Law Appeals (DALA) and the Contributory Retirement Appeal Board (CRAB). The city additionally argues that McLaughlin did not prove a prima facie case of handicap discrimination or interference, and further, that the judge erred in giving certain jury instructions. [FN2] We affirm in part and reverse in part. 1. Background. McLaughlin began working as a firefighter with the Lowell fire department (LFD) in 1974, ultimately attaining the rank of captain. On July 8, 1996, McLaughlin suffered an asthma attack after responding to a small outdoor mulch fire without wearing protective gear. Thereafter, McLaughlin applied for and was granted accidental disability retirement under […]
By: Becca ManningHow would you change the Boston Redevelopment Authority?Candidates for Boston City Council were asked that question at last week's
By: Becca Manning How would you change the Boston Redevelopment Authority? Candidates for Boston City Council were asked that question at last week's
Categories: Arrests Tags: asked, AuthorityCandidates, boston, By Becca, change, City, Council, Last, ManningHow, question at, Redevelopment, week's , Were, Would
Should the BRA Separate? City Council Candidates Weigh In
By: Becca Manning How would you change the Boston Redevelopment Authority? Candidates for Boston City Council were asked that question at last week's
Boston Budget Approved: $937M for Schools, $196M for City Projects
By: David Ertischek The Boston City Council unanimously approved the city's $ 2.6 billion operating budget for fiscal year 2014 on Wednesday, the last budget to be submitted by outgoing Mayor Thomas Menino. The budget includes $ 196 m South End Patch News