Posts tagged "Somerville"

Andrade, et al. v. City of Somerville (Lawyers Weekly No. 11-139-17)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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-1407                                       Appeals Court   CARLOS ANDRADE & others[1]  vs.  CITY OF SOMERVILLE.     No. 16-P-1407.   Middlesex.     September 13, 2017. – October 30, 2017.   Present:  Massing, Kinder, & Ditkoff, JJ.     Massachusetts Tort Claims Act.  Firearms.  License.  Governmental Immunity.  Municipal Corporations, Governmental immunity.  Negligence, Governmental immunity.  Police, Negligence.  Practice, Civil, Motion to dismiss.       Civil action commenced in the Superior Court Department on November 9, 2015.   A motion to dismiss was heard by Maureen B. Hogan, J.     David P. Shapiro, Assistant City Solicitor, for the defendant. Keith J. Nicholson for the plaintiffs.     MASSING, J.  This appeal concerns the scope of § 10(e) of the Massachusetts Tort Claims Act, G. L. c. 258, which exempts public employers from liability in tort with respect to “any claim based upon the issuance, denial, suspension or revocation or failure or refusal to issue, deny, suspend or revoke any permit, license, certificate, approval, order or similar authorization.”  G. L. c. 258, § 10(e), inserted by St. 1993, c. 495, § 57. Plaintiff Carlos Andrade was grievously and permanently injured when Santano Dessin shot him in the neck, shattering Andrade’s spine and leaving him paralyzed from the neck down.  The plaintiffs allege that the gun Dessin used to shoot Andrade had been wrongly returned to Dessin by defendant city of Somerville (city) and the Somerville police department (department) after the department had previously confiscated it in the course of revoking Dessin’s license to carry firearms.  We conclude that the city’s conduct was “based upon” licensing activity described in § 10(e) and that the city is accordingly exempt from suit. Background.  Because this appeal comes to us on interlocutory review of the denial of the city’s motion to dismiss,[2] we accept the facts as alleged in the plaintiffs’ complaint.  See Kent v. Commonwealth, 437 Mass. 312, 317 (2002); Greenleaf Arms Realty Trust I, LLC v. New Boston Fund, Inc., 81 Mass. App. Ct. 282, 288 (2012).  In January, 2010, the department notified Dessin that his license to carry had been revoked because of a disqualifying adjudication of delinquency that appeared on his juvenile record.  The department took possession of three firearms belonging to Dessin.[3]  Dessin appealed the department’s decision, and a Superior Court judge determined that Dessin was permitted to possess firearms.  Following the judge’s ruling, although the department was awaiting a decision of the Massachusetts […]

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Posted by Massachusetts Legal Resources - October 30, 2017 at 5:36 pm

Categories: News   Tags: , , , , ,

Rodriguez v. City of Somerville (Lawyers Weekly No. 10-124-15)

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   SJC-11767   EDGAR RODRIGUEZ[1]  vs.  CITY OF SOMERVILLE. July 20, 2015. Massachusetts Tort Claims Act.  Moot Question.  Practice, Civil, Moot case, Presentment of claim under Massachusetts Tort Claims Act, Interlocutory appeal.  Governmental Immunity.  Municipal Corporations, Governmental immunity, Liability for tort.  Notice, Claim under Massachusetts Tort Claims Act.      After the plaintiff, Edgar Rodriguez acting on behalf of his minor son Rodrigo, commenced this negligence action against the city of Somerville (city), the city filed a motion to dismiss pursuant to Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754 (1974), claiming that the plaintiff failed to meet the presentment requirements set forth in the Massachusetts Tort Claims Act (Act).  See G. L. c. 258, § 4.  A judge in the Superior Court denied the motion, concluding that the letter satisfied the statutory requirements.  The city appealed, and in doing so argued that the appeal, which was interlocutory, was proper pursuant to the doctrine of present execution.  The Appeals Court concluded that the doctrine of present execution does not apply and dismissed the appeal.  See Rodriguez v. Somerville, 86 Mass. App. Ct. 1 (2014).  The case is now before this court on further appellate review.   Background.  The essential background, as set forth in the Appeals Court’s decision, is as follows:   “On April 14, 2011, Rodrigo Rodriguez, a second grade student at the Argenziano School in [the city], 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 [the city].”   Id. at 2.  The plaintiff maintains that the letter was meant to satisfy the presentment requirements of G. L. c. 258, § 4, and in his complaint filed on March 29, 2013, alleged that “[t]imely and proper presentment was made to [the city] pursuant to [G. L. c. 258, § 4].”[2]   Discussion.  1.  Mootness.  We address, as an initial matter, the plaintiff’s motion to dismiss the city’s appeal to this court as moot.  He argues that the presentment question is moot because the original pleadings in the case have been superseded by subsequent pleadings, filed while this appeal has been pending.  Among other things, the plaintiff has filed an amended complaint; the city has, in turn, filed an amended answer; and additional […]

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Posted by Massachusetts Legal Resources - July 20, 2015 at 8:34 pm

Categories: News   Tags: , , , , ,

City of Somerville, et al. v. Commonwealth Employment Relations Board, et al. (Lawyers Weekly No. 10-016-15)

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   SJC-11620   CITY OF SOMERVILLE & another[1]  vs.  COMMONWEALTH EMPLOYMENT RELATIONS BOARD & others.[2] Suffolk.     November 3, 2014. – February 3, 2015.   Present:  Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ.     School and School Committee, Retirement benefits, Group insurance, Collective bargaining.  Municipal Corporations, Group insurance, Collective bargaining.  Retirement.  Public Employment, Retirement benefits, Collective bargaining.  Insurance, Group.       Appeal from a decision of the Division of Labor Relations.   The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.     Matthew J. Buckley, Assistant City Solicitor, for the plaintiffs. T. Jane Gabriel for the defendant. Laurie R. Houle, Ira Fader, Colin R. Confoey, & Jason Powalisz for the interveners, submitted a brief.     SPINA, J.  At issue in this case is whether the city of Somerville (city) and the school committee of Somerville (school committee) violated G. L. c. 150E, § 10 (a) (5), and, derivatively, G. L. c. 150E, § 10 (a) (1), when the city unilaterally reduced its percentage contribution to retired employees’ health insurance premiums without engaging in collective bargaining over the matter with current employees.[3]  We conclude that the city and the school committee did not violate these statutory provisions.  Accordingly, we reverse the decision of the Commonwealth Employment Relations Board (board), which reached a contrary conclusion. 1.  Statutory framework.  Our resolution of the present dispute is based on the interplay between G. L. c. 150E and G. L. c. 32B.  General Laws c. 150E, § 2, protects the rights of public employees to self-organization and collective bargaining.  Pursuant to G. L. c. 150E, § 6, “[t]he employer and the exclusive representative . . . shall negotiate in good faith with respect to wages, hours, standards [of] productivity and performance, and any other terms and conditions of employment . . . .”  General Laws c. 150E, § 10, states, in relevant part: “(a) It shall be a prohibited practice for a public employer or its designated representative to:   “(1) Interfere, restrain, or coerce any employee in the exercise of any right guaranteed under this chapter;   “. . .   “(5) Refuse to bargain collectively in good faith with the exclusive representative as required in section six . . . .”   “Under the Home Rule Amendment, art. 89, § 6, of the Amendments to the Massachusetts Constitution, municipalities of the Commonwealth may choose to provide health insurance coverage to their […]

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Posted by Massachusetts Legal Resources - February 3, 2015 at 5:52 pm

Categories: News   Tags: , , , , , , , ,

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 […]

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Posted by Massachusetts Legal Resources - July 1, 2014 at 11:46 pm

Categories: News   Tags: , , , , ,

Retirement Board of Somerville v. Buonomo, et al. (Lawyers Weekly No. 10-062-14)

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     SJC‑11413   RETIREMENT BOARD OF SOMERVILLE  vs.  JOHN BUONOMO & others.[1]   Middlesex.     January 9, 2014.  ‑  April 2, 2014. Present:  Ireland, C.J., Spina, Botsford, Gants, Duffly, & Lenk, JJ.     Retirement.  Public Employment, Forfeiture of retirement benefits.  Register of Probate.  Practice, Civil, Action in nature of certiorari.     Civil action commenced in the Superior Court Department on July 20, 2010.   Motions for judgment on the pleadings were heard by Thomas R. Murtagh, J.   The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.   Matthew J. Buckley for the plaintiff. Nicholas Poser for the defendant.       SPINA, J.  In 2009, John Buonomo was convicted of eighteen counts of breaking into a depository, G. L. c. 266, § 16, eight counts of larceny under $ 250, G. L. c. 266, § 30 (1), and eight counts of embezzlement by a public officer, G. L. c. 266, § 51.  He committed these offenses during the time that he held office as register of probate of Middlesex County.  At issue is whether, pursuant to G. L. c. 32, § 15, and as a consequence of his convictions, Buonomo forfeited the retirement allowance that he previously had earned as a member of the board of aldermen for the city of Somerville.  Based on the language and intent of G. L. c. 32, § 15 (4), inserted by St. 1987, c. 697, § 47, we conclude that even though Buonomo’s convictions involved violations of the laws applicable to his office or position as register of probate, he nonetheless forfeited his entitlement to a retirement allowance from the retirement board of Somerville (board) related to his prior service as a member of the board of aldermen.  There is no requirement in § 15 (4) that the public office to which a member’s criminal convictions relate be the same as the public office from which that member is receiving a retirement allowance.  Accordingly, we reverse the decision of the Superior Court that reached a contrary conclusion. 1.  Statutory framework.  The provisions of G. L. c. 32, § 15, pertain to dereliction of duty by a member of a contributory retirement system for public employees.  See State Bd. of Retirement v. Bulger, 446 Mass. 169, 170 (2006).  General Laws c. 32, § 15 (4), provides: “In no event shall any member after final conviction of a criminal offense involving violation of the laws applicable to his office […]

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Posted by Massachusetts Legal Resources - April 2, 2014 at 3:38 pm

Categories: News   Tags: , , , , , ,

Patrick Signs Bill to Appoint Sean Collier to Somerville Police Department

Sean Collier, who authorities say was killed by the Boston Marathon Bombing suspects, will soon realize his dream of becoming a Somerville police officer. Gov. Deval Patrick signed a bill Tuesday allowing the city of Somerville to appoint Collier postumously to the city’s police force, according to WHDH. Collier, a Somerville resident, was serving as an MIT police officer when, on April 18, he was allegedly shot to death by the suspects in the Boston Marathon Bombing. Jackie Rossetti, a spokesperson for the city of Somerville, said Tuesday afternoon the city was planning a ceremony for Collier’s appointment to the Somerville Police Department, but no date had been set. She said the city was in the process of working with Collier’s family to make those plans. According to WHDH, Somerville State. Sen. Patricia Jehlen, who co-sponsored the home rule petition allowing the postumous appointment, said, “While nothing we do can bring Collier back, this posthumous appointment is a meaningful way to honor his memory and brave service.” Somerville State. Rep. Denise Provost also co-sponsored the bill, according to WHDH. Collier was working toward becoming a Somerville police officer, and he would have been sworn onto the force on June 3. Read the WHDH article here. More Police, Residents Attend Officer Sean Collier’s Wake Thousands Mourn Sean Collier at MIT Bill to Honor Sean Collier Coming Closer to Reality SOUTH END PATCH: Facebook | Twitter | E-mail Updates South End Patch

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Posted by Massachusetts Legal Resources - May 29, 2013 at 8:07 pm

Categories: Arrests   Tags: , , , , , , , ,