254 Newbury, LLC v. Wabora Newton LLC, et al. (Lawyers Weekly No. 12-026-17)

1 COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT CA No. 16-1855-BLS1 254 NEWBURY, LLC vs. WABORA NEWTON LLC and JAE CHOI1 MEMORANDUM OF DECISION AND ORDER FOLLOWING JURY WAIVED TRIAL INTRODUCTION This case arises out of a dispute concerning a commercial lease for a restaurant. The plaintiff, 254 Newbury, LLC, is the landlord (Landlord) and the defendant, Wabora Newton LLC (Waboro) is the tenant. The Landlord filed this action on June 13, 2016 and an amended complaint on December 16, 2017 (the Complaint). The Complaint is pled in four counts: Count I seeks injunctive relief, but does not allege a separate cause of action; Count Two alleges a Breach of Contract; Count Three asserts a claim for nuisance; and Count IV requests an order of eviction, but does not assert a separate cause of action. Wabora has filed a two count counterclaim against the Landlord: Count I alleges a Breach of Contract against the Landlord and Count II asserts a claim under M.G.L. c. 93A, § 11. The case was tried to the court without a jury on February 15 and 16, 2017. Six witnesses testified and 92 exhibits were admitted in evidence. 1 Jae Choi was dismissed as a defendant at the plaintiff’s request just prior to trial and did not participate. 2 FACTS In consideration of the testimony of the witnesses and the exhibits, and the reasonable inference drawn from this evidence, the court finds the following facts. The Landlord is a limited liability company which is a part of the Copley Group, a real estate investment and management company owned by Norman Levenson and members of his family. The Copley Group owns and/or manages over 1500 residential units and 300,000 square feet of commercial space in the Boston area, including other buildings on the same block as the property which is the subject of this case. Levenson formed the Landlord to acquire the property located at 254 Newbury Street in Boston (254 Newbury) in 2012. The property consists of a basement (or in Back Bay speak “Garden”) unit, which is 1300 interior square feet with a patio in front, and four above ground floors, the first of which has three large windows in a bay area typical of the town houses on Newbury Street (the Commercial Space). There are stairs to the right of the patio which lead to the front entry way to 254 Newbury. The front door opens into a foyer with direct access to the Commercial Space, stairs to the floors above, and a door that leads to stairs down to a rear exit at the restaurant level. 254 Newbury lies in the Boston geographic district subject to oversight by the Back Bay Architectural […]

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