Braintree Property Associates, LP v. Marzouki, et al. (Lawyers Weekly No. 09-038-17)
COMMONWEALTH OF MASSACHUSETTS NORFOLK, ss. SUPERIOR COURT CIVIL ACTION NO. 15-00144 BRAINTREE PROPERTY ASSOCIATES, LP vs. FRANCO MARZOUKI, DR. WU, LLC, D.B.A EMACK & BOLIOS AND ROBERT ROOK and FRANCO MARZOUKI, CROSS-CLAIM PLAINTIFF, vs. ROBERT ROOK, CROSS-CLAIM DEFENDANT MEMORANDUM OF DECISION AND ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT This action arises out of a lease agreement between the property owner, plaintiff, Braintree Property Associates, LP (“Braintree”), the lease holder, defendant Dr. Wu, LLC, d/b/a Emack & Bolios (“Wu”), for which Robert Rook is the sole owner and manager. Defendants Rook and Franco Marzouki guaranteed Wu’s obligations to Braintree. There is no dispute that Wu breached its lease by vacating the property it leased from Braintree before its lease was up. Plaintiff moves for summary judgment on its claims against Wu, Rook and Marzouki. All defendants oppose. Wu and Rook cross-move for summary judgment against Braintree, improbably claiming that Braintree is entitled to no lost rent at all under the terms of Braintree’s own Lease, which Braintree opposes. Marzouki moves for summary judgment on his cross-claim for indemnification from Rook, which Rook opposes. The issue at the core of this case is a straight-forward dispute about the measure of damages arising from Wu’s undisputed breach of its lease with Braintree. Based on the lease 2 and the undisputed facts, in consideration of the parties’ memoranda of law and oral arguments, and for the reasons that follow, plaintiff’s motion for summary judgment is ALLOWED. Wu’s cross-motion for summary judgment is DENIED. For other reasons, Marzuki’s motion for summary judgment on his cross-claim against Rook is DENIED. FACTS In reviewing a motion for summary judgment, the Court views the evidence in the light most favorable to the non-moving party and draws all reasonable inferences in his favor. Jupin v. Kask, 447 Mass. 141, 143 (2006), citing Coveney v. President & Trustees of the College of the Holy Cross, 388 Mass. 16, 17 (1983). Braintree operates the South Shore Plaza, a shopping mall in Braintree. Rook is the sole owner and manager of Wu, which does business as Emack & Bolios, an ice cream seller. On or about July 25, 2011, Wu, as tenant, entered into a lease (“Lease”) with Braintree for commercial space at the South Shore Plaza. The lease had a five-year term and required Wu to pay rent and fees. The lease term was to commence May 1, 2011 and end May 1, 2016. On or about July 25, 2011, defendants Marzouki and Rook each executed a joint and several guaranty of Wu’s lease obligations. Beginning in June, 2014, Wu stopped paying rent, and did not pay any rent thereafter. Neither Rook nor Marzouki made good on the rent Wu failed […]
G6 Hospitality Property LLC v. Town of Braintree Board of Health (Lawyers Weekly No. 12-107-17)
COMMONWEALTH OF MASSACHUSETTS NORFOLK, ss. SUPERIOR COURT CIVIL ACTION 17-0882 G6 HOSPITALITY PROPERTY LLC vs. TOWN OF BRAINTREE BOARD OF HEALTH MEMORANDUM OF DECISION AND ORDER ON PLAINTIFF’S APPLICATION FOR A TEMPORARY RESTRAINING ORDER AND MOTION FOR A PRELIMINARY INJUNCTION In its complaint in this action, Plaintiff G6 Hospitality Property LLC (“G6”), which operates a Motel 6 located at 125 Union Street, Braintree, Massachusetts (“the Motel”), seeks certiorari review under G.L. c. 249, § 4 of a decision made by the defendant, Town of Braintree Board of Health (“the Board”), to revoke G6’s license to operate the Motel under G.L. c. 140, §32B and c. 111, §122.[1] At issue before the Court is G6’s application for a temporary restraining order and motion for a preliminary injunction, enjoining the Board from enforcing its July 13, 2017, decision to revoke G6’s license while this case is litigated. For the reasons that follow, the Court concludes that G6 has not shown that it is entitled to a temporary restraining order or a preliminary injunction, as it cannot show that it is likely to succeed on the merits. Its application and motion are thus DENIED. FACTS The relevant facts in the administrative record provided to this Court are as follows: Procedural History: On May 12, 2017, the Board notified the Motel that an emergency license revocation hearing would be held on May 18, 2017, to determine whether, pursuant to G.L. c. 140, §§30 and 32B, G.L. c. 111, §122 and 105 C.M.R. 410, the Motel had “violated certain provisions of [its] license” because of “concerns relating to public health and safety … as the result of the exorbitant number of police-related responses to the motel since 2010, including but not limited to sudden deaths, sexual assaults/offenses, drug overdoses, warrant services, as well as the most recent shooting of a Braintree police officer and apparent suicide [of the officer’s assailant] that took place at Motel 6 on Friday, May 5, 2017.” Representatives of G6 and Braintree Mayor Joseph Sullivan (“the Mayor”) agreed that the Board would not oppose G6’s request to continue the hearing if G6 agreed to voluntarily close the Motel for 45-days, from June 1 to July 15, 2017, during which time G6 would work on improving the Motel’s security protocol. Accordingly, G6 requested a continuance of the hearing. The Board approved the Motel’s request. The Motel voluntarily closed June 1. The hearing was rescheduled for July 13, 2017. Prior to the July 13 hearing, a public notice was published in the local newspaper. Facts Disclosed at the July 13, 2017 Hearing: At the July 13, 2017 hearing (“the Hearing”), the Board heard testimony […]
Bay Colony Property Development Company, et al. v. Headlands Realty Corporation, et al. (Lawyers Weekly No. 12-069-17)
COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT. 1784CV00936-BLS2 ____________________ BAY COLONY PROPERTY DEVELOPMENT COMPANY and WILLIAM E. LOCKE, JR. v. HEADLANDS REALTY CORPORATION; PROLOGIS LOGISTICS SERVICES INC.; AMB PROPERTY II, L.P.; AMB PROPERTY CORPORATION; and PROLOGIS, INC. ____________________ MEMORANDUM AND ORDER DENYING DEFENDANTS’ MOTION TO DISMISS AND DENYING PLAINTIFFS’ CROSS-MOTION TO STRIKE Bay Colony Property Development Company and William E. Locke, Jr., claim that Defendants hired them to plan, coordinate, and supervise the development of two different properties in Pennsylvania. They allege that Defendants promised to pay Bay Colony two percent of the development costs (the “Base Fee”) plus ten percent of the profits (the “Incentive Fee”) for its work on one site, and promised to pay the same percentage amounts to Locke for his work on the other site. Plaintiffs allege they have not been paid and are owed part of the Base Fees and all of the Incentive Fees for the two projects. Plaintiffs assert claims for breach of contract, unjust enrichment, and declaratory judgment as to enforceability of the alleged contracts. Defendants have moved to dismiss on the ground that all claims are time barred. They argue that the statutory limitations period began to run on October 29, 2010, when AMB Property Corporation (“AMB”) sent a letter disputing whether it had any binding contract with Bay Colony. If that were correct, then all claims would be time barred—whether the Massachusetts six-year limitations period or the Pennsylvania four-year limitations period controlled—because this action was not filed in Middlesex Superior Court until November 14, 2016, more than six years later. The Court concludes that it may consider the October 2010 letter in deciding the motion to dismiss, but that it must DENY the motion because that letter did not put Plaintiffs on notice of any actual or anticipated breach of contract. 1. Considering the 2010 Letter. Plaintiffs ask the Court to strike or at least disregard the October 29, 2010, letter that is attached to Defendants’ motion to dismiss. They argue that the Court may not consider this letter without converting – 2 – the motion to dismiss into a motion for summary judgment because Plaintiffs did not attach the letter to, reference the letter in, or rely on the letter in drafting the complaint. The Court disagrees. The authenticity of this letter and the fact that it was sent to Plaintiffs are not in dispute, as Plaintiffs acknowledged at oral argument. It is therefore permissible and appropriate for the Court to consider the letter in deciding Defendants’ motion to dismiss. When deciding a motion to dismiss under Rule 12(b)(6), a court may consider “documents the authenticity of which is not disputed by the parties” without converting the motion […]
Skawski, et al. v. Greenfield Investors Property Development LLC (Lawyers Weekly No. 10-017-16)
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 SJC-11926 MICHAEL SKAWSKI & others[1] vs. GREENFIELD INVESTORS PROPERTY DEVELOPMENT LLC. Hampden. January 7, 2016. – February 11, 2016. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Jurisdiction, Land Court, Housing Court. Land Court, Jurisdiction. Housing Court, Jurisdiction. Statute, Construction, Repeal. Civil action commenced in the Hampden Division of the Housing Court Department on June 7, 2011. A motion to dismiss was heard by Dina E. Fein, J., and the ruling was reported by her. After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review. Thomas Lesser (Michael E. Aleo with him) for the plaintiffs. Marshall D. Senterfitt (David S. Weiss with him) for the defendant. Isaac J. Mass, for Citizens for Growth, amicus curiae, submitted a brief. Ashley Grant, for Massachusetts Fair Housing Center, amicus curiae, submitted a brief. GANTS, C.J. On August 2, 2006, the Legislature enacted G. L. c. 185, § 3A, which established the permit session of the Land Court department and provided that “[t]he permit session shall have original jurisdiction, concurrently with the superior court department,” over civil actions adjudicating the grant or denial of permits for “the use or development of real property” where “the underlying project or development involves either [twenty-five] or more dwelling units or the construction or alteration of 25,000 square feet or more of gross floor area.” St. 2006, c. 205, § 15. At the time § 3A was enacted, G. L. c. 40A, § 17, authorized “[a]ny person aggrieved by a decision of the board of appeals or any special permit granting authority” to appeal to the Land Court, the Superior Court, the Housing Court, or the District Court.[2] The issue before us is whether the Legislature, by enacting G. L. c. 185, § 3A, intended to grant exclusive subject matter jurisdiction to the permit session of the Land Court and to the Superior Court to hear this subset of major development permit appeals, or intended simply to create a permit session in the Land Court to hear these cases without eliminating the subject matter jurisdiction of the Housing Court to adjudicate this subset of appeals. We conclude that the Legislature intended that major development permit appeals should be adjudicated only in the permit session of the Land Court or in the Superior Court. We […]
Categories: News Tags: 1001716, Development, Greenfield, Investors, Lawyers, Property, Skawski, Weekly
Skawski, et al. v. Greenfield Investors Property Development, LLC (Lawyers Weekly No. 11-018-15)
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 13-P-1947 Appeals Court MICHAEL SKAWSKI & others[1] vs. GREENFIELD INVESTORS PROPERTY DEVELOPMENT, LLC.[2] No. 13-P-1947. February 27, 2015. Jurisdiction, Land Court, Housing Court. Land Court, Jurisdiction. Housing Court, Jurisdiction. Upon a joint motion by the defendant, Greenfield Investors Property Development, LLC (Property Development), and the plaintiffs (abutters), a judge of the Western Division of the Housing Court Department reported, for further review and determination pursuant to Mass.R.Civ.P. 64(a), as amended, 423 Mass. 1403 (1996), her order denying Property Development’s motion to dismiss. Property Development challenges the Housing Court’s jurisdiction over the abutters’ claim. Relying on our holding in Buccaneer Dev., Inc. v. Zoning Bd. of Appeals of Lenox, 83 Mass. App. Ct. 40 (2012) (Buccaneer), Property Development argues that with the enactment of G. L. c. 185, § 3A, establishing an expedited permit session in the Land Court for large-scale development projects and grant of concurrent jurisdiction to the Superior Court,[3] the Legislature divested the Housing Court of jurisdiction over such matters. It asserts, therefore, that the judge erred in denying its motion to dismiss the abutters’ claim for lack of subject matter jurisdiction. We agree and reverse the order denying Property Development’s motion to dismiss. Background. The planning board of Greenfield issued a special permit approving Property Development’s plan to develop a 135,000-square-foot retail facility within the town of Greenfield.[4] The abutters filed an appeal pursuant to G. L. c. 40A, § 17, in the Western Division of the Housing Court Department, challenging the issuance of a special permit to Property Development. Property Development and its codefendants (see note 2, supra) subsequently filed a joint motion with the Chief Justice for Administration and Management of the Trial Court (CJAM)[5] to have the matter transferred pursuant to G. L. c. 185, § 3A, to the permit session of the Land Court. The abutters opposed the transfer. The CJAM denied the motion, and litigation proceeded in the Western Division of the Housing Court Department. Following our decision in Buccaneer, supra, Property Development moved to dismiss the abutters’ action, asserting that the Housing Court lacked subject matter jurisdiction over the action. The Housing Court judge denied Property Development’s motion to dismiss and conditioned that denial upon approval from the Chief Justice of the Housing Court Department to transfer the matter to the Superior Court. To obtain that approval, the judge sent a letter requesting that the case “be […]
Categories: News Tags: 1101815, Development, Greenfield, Investors, Lawyers, Property, Skawski, Weekly
Cahaly, et al. v. Benistar Property Exchange Trust Company, Inc., et al. (Lawyers Weekly No. 11-062-14)
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 12‑P‑956 Appeals Court GAIL A. CAHALY & others[1] vs. BENISTAR PROPERTY EXCHANGE TRUST COMPANY, INC., & others.[2] No. 12‑P‑956. Suffolk. December 2, 2013. ‑ June 6, 2014. Present: Kantrowitz, Graham, & Meade, JJ. Attorney at Law, Work product. Penalty. Practice, Civil, New trial. Civil actions commenced in the Superior Court Department on January 9, 16, 22, and 23, 2001; February 6, 2001; September 20, 2001; and April 30, 2002. Following review by the Supreme Judicial Court, 451 Mass. 343 (2008), motions for sanctions and for a new trial were heard by Stephen E. Neel, J. Anthony R. Zelle for Gail A. Cahaly & others. Michael B. Keating for the intervener. Brooks L. Glahn for Benistar Property Exchange Trust Company, Inc., & others. MEADE, J. The plaintiffs appeal from the denial of their motion for sanctions against Bingham McCutchen LLP (Bingham), intervener, the law firm that defended Merrill Lynch, Pierce, Fenner & Smith, Inc. (Merrill), in the 2002 jury trial of this action. The plaintiffs claim that in that litigation Bingham wrongfully withheld documents relevant to the issue whether Merrill, in handling the accounts of Benistar Property Exchange Trust Company, Inc. (Benistar), knew that Benistar was trading with money belonging to third parties. We hold that Bingham lacked an adequate legal basis, under the guise of the work product doctrine, for its decisions to withhold information that Merrill employees had viewed certain Benistar Web pages describing its business as an intermediary for third-party funds and then to present a defense claiming that no Merrill employees had viewed the very same Web pages. As a result, we vacate that portion of the final judgment entering judgment in favor of Bingham on the plaintiffs’ motion for sanctions. As explained below, there remain certain issues that require resolution by a fact finder, and thus, we remand for further proceedings consistent with this opinion. Background. For background regarding the 2002 trial and the underlying dispute, we refer to Cahaly v. Benistar Property Exch. Trust Co., 451 Mass. 343 (2008) (Cahaly), in which the Supreme Judicial Court affirmed the order of the Superior Court judge granting the plaintiffs a new trial. The documents at issue here came to light during the preparation of the second trial in 2009, when Merrill, then represented by […]
Police: Two Arrested on Trotter Court for Drugs, Trespassing, and Stolen Property
Two men who were believed to be dealing drugs in the area were also found with allegedly stolen property, say police. South End Patch News
City Readies Property Owners, Residents to Re-Enter Blast Zone
The blast zone along Boylston Street is still an active crime scene, but city officials are preparing a plan to let business owners and inspectors into the area on a “staggered schedule for limited access.” The city emergency management team along with Mayor Thomas Menino met Sunday to devise a five-phase plan for re-entry to the Copley Square blast zone in the April 15 marathon bombings, according to a press statement April 21. The phases include: Phase 1: Decontamination and TestingPhase 2: Structural Building Assessments and Utility CoordinationPhase 3: Debris RemovalPhase 4: Internal Building AssessmentsPhase 5: Re-Entry, Communications, and Counseling The plan will be implemented once the FBI clears the zone, according to the statement. Items at a memorial at the intersection of Boylston and Berkeley streets and other area memorials will be temporarily moved to Copley Square Park. Boston Police will return personal items left at the scene that has not been retained as evidence by the FBI, according to the statement. Menino on the City of Boston website wrote a message April 20 to business owners and residents of property on Boylston Street from Massachusetts Avenue to Clarendon Street and Huntington Avenue to Newbury Street saying that as soon as the FBI gives the signal, people will be allowed back through the scene of the Boston Marathon bombings. “As soon as we receive clearance from the FBI, the City will move quickly to ensure that the area is safe for residents and businesses to return. We will be taking steps to secure the public safety, including: Ensuring that streets and sidewalks are clean of equipment and debris and are safe for pedestrians; Ensuring that all buildings are structurally sound,” the message said. The city has not given a timeline as to when the plan might be called to action, but the message says workers are on standby and prepared to execute on the plan as soon as possible. The message noted that some areas might be ready sooner than others. The message asks those impacted by the blocked off crime scene to register online or to call 617-635-4500 to provide updated information so the city can be in contact with business and property owners as well as residents when the area is re-opened. The city asks that owners consider the outside contractor services they may need and will provide some lists of contractors for cleanup, construction, board-up and other services. South End Patch