Posts tagged "Suffolk"

Modica v. Sheriff of Suffolk County, et al. (Lawyers Weekly No. 10-079-17)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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   SJC-12201   GEORGE MODICA  vs.  SHERIFF OF SUFFOLK COUNTY & others.[1]       Suffolk.     January 5, 2017. – May 15, 2017.   Present:  Gants, C.J., Lenk, Hines, Gaziano, Lowy, & Budd, JJ.     Correction Officer.  Words, “Bodily injury.”       Civil action commenced in the Superior Court Department on October 24, 2014.   The case was heard by Douglas H. Wilkins, J., on motions for summary judgment.   The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.     Noah A. Winkeller for the plaintiff. Allen H. Forbes, Special Assistant Attorney General, for the defendants.          BUDD, J.  Through G. L. c. 126, § 18A, and G. L. c. 30, § 58, the Legislature has afforded correction officers additional compensation to close the gap between workers’ compensation benefits and an employee’s salary if the employee sustains bodily injury as a result of inmate violence during the course of his or her duties.  The plaintiff, George Modica, a correction officer in the Suffolk County Sheriff’s Department, sued the defendants — the sheriff of Suffolk County, the Suffolk County sheriff’s department, and the Commonwealth — to obtain compensation under the statutes.  At issue in this case is the meaning of “bodily injury” as the term is used in the two statutes.  We conclude that bodily injury is that which results in physical injury; because the defendant has not suffered such an injury, he does not qualify for compensation under the statute. Background.  The pertinent facts, taken from the record, are undisputed.  As a result of breaking up inmate fights in March and April of 2010, the plaintiff began to experience an accelerated heart rate (sinus tachycardia) accompanied by light-headedness and difficulty breathing. The defendants initially paid workers’ compensation benefits voluntarily but soon after discontinued them.  The plaintiff filed a claim for further workers’ compensation benefits and, insofar as relevant here, the plaintiff underwent two independent medical examinations.  Both doctors concurred that the defendant’s symptoms were a physiological response to stress, that the sinus tachycardia was neither the result nor the cause of any physical harm, and that there was no evidence of structural heart disease.[2] The parties eventually settled the plaintiff’s workers’ compensation claim, stipulating that the plaintiff’s injury was a physiological response to his involvement in inmate altercations.  The plaintiff thereafter applied for […]

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Posted by Massachusetts Legal Resources - May 15, 2017 at 5:26 pm

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Suffolk Construction Company, Inc. v. Benchmark Mechanical Systems, Inc., et al. (Lawyers Weekly No. 12-045-17)

COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT. 1384CV01463-BLS2 ____________________ SUFFOLK CONSTRUCTION COMPANY, INC. v. BENCHMARK MECHANICAL SYSTEMS, INC. and READING CO-OPERATIVE BANK ____________________ MEMORANDUM AND ORDER ALLOWING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT This case arises from Suffolk Construction Company’s mistaken payment of monies to Benchmark Mechanical Systems rather than to Benchmark’s lender, Reading Co-Operative Bank. Suffolk had hired Benchmark as a subcontractor on a large construction project. Benchmark secured a line of credit by assigning to the Bank all money that Benchmark stood to collect from Suffolk under its subcontract. Suffolk mistakenly made payments totaling $ 3,822,500.49 to Benchmark instead of to the Bank. Benchmark held and spent those monies, rather than forward them to the Bank. After Benchmark went out of business, the Bank sued Suffolk. The Supreme Judicial Court ordered Suffolk to pay the Bank the full amount it should have paid under Benchmark’s assignment. See Reading Co-Operative Bank v. Suffolk Constr. Co., 464 Mass. 543, 557 (2013). With statutory interest included, Suffolk paid the Bank a judgment totaling $ 7,640,907.45. Suffolk brought this action seeking to recover the surplus held by the Bank that was left after the Bank deducted its reasonable costs of collection and the principal and interest owed by Benchmark from the amount paid by Suffolk. In addition, Suffolk asserted common law claims against Benchmark seeking to recover the $ 3,822,500.49 in subcontract payments that Suffolk was compelled to pay a second time to the Bank. The Supreme Judicial Court recently held that Suffolk had stated viable claims against the Bank, but that its claims against Benchmark are barred by the applicable statute of limitations. See Suffolk Constr. Co. v. Benchmark Mechanical Systems, Inc., 475 Mass. 150 (2016). Suffolk now moves for summary judgment as to its right to collect the surplus of roughly $ 1.35 million being held by the Bank. The Court will ALLOW this motion. – 2 – This resolves all remaining claims. Suffolk and the Bank report that they have settled Suffolk’s claim that the Bank’s costs of collection were unreasonable, and that this settlement will take effect if the Court were to rule (as it does) that Suffolk is entitled to receive the full surplus amount that the Bank owes to Benchmark. The SJC has held that under the circumstances of this case Suffolk is entitled to equitable subrogation as against Benchmark, meaning that it may “stand in Benchmark’s shoes as to the surplus” held by the Bank. Suffolk Constr., 475 Mass. at 156. This holding is the law of the case, is binding on all parties, and may not be reconsidered now that the case has been remanded to the Superior Court. See City Coal Co. of Springfield, […]

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Posted by Massachusetts Legal Resources - April 26, 2017 at 7:04 pm

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Central Ceilings, Inc. v. Suffolk Construction Company, Inc., et al. (Lawyers Weekly No. 11-036-17)

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   15-P-1117                                       Appeals Court   CENTRAL CEILINGS, INC.  vs.  SUFFOLK CONSTRUCTION COMPANY, INC. & others.[1]     No. 15-P-1117.   Suffolk.     October 7, 2016. – March 29, 2017.   Present:  Agnes, Maldonado, & Desmond, JJ.     Contract, Construction contract, Subcontractor, Damages.  Damages, Breach of contract, Attorney’s fees.  Practice, Civil, Attorney’s fees, Discovery.     Civil action commenced in the Superior Court Department on October 3, 2006.   The case was heard by S. Jane Haggerty, J.; an award of attorney’s fees was entered by her; and a motion for reconsideration was considered by Judith Fabricant, J.     Joel Lewin (John P. Connelly also present) for the defendants. Paul R. Mordarski (Thomas J. Fullam also present) for the plaintiff.     DESMOND, J.  After a jury-waived trial, a Superior Court judge entered judgment awarding the plaintiff, Central Ceilings, Inc. (Central), $ 321,315 on its breach of contract claim for damages for loss of productivity incurred while acting as a subcontractor for defendant Suffolk Construction Company, Inc. (Suffolk), on a large construction project.  This case is before us on cross appeals. Suffolk challenges the judgment,[2] claiming, inter alia, that Central’s claim was barred by the “no-damages-for-delay” clause in the subcontract between the parties, and that the judge erred in ruling that Central had established its claim for damages by the “total cost” method.  Suffolk further challenges the judge’s award of $ 471,682 in attorney’s fees to Central, claiming that it was wrongfully denied discovery and a hearing prior to the entry of that award. On its cross appeal, Central challenges the judge’s holding that the “pay-if-paid” clause in the subcontract barred it from recovering $ 82,538 from Suffolk for unpaid change order requests (CORs).  For the reasons set forth herein, the judgment on the merits entered on December 20, 2013, and the amended judgment for attorney’s fees entered on September 9, 2014, are affirmed. Background.  First, we set forth the basic material facts, drawing extensively from the trial judge’s thoughtful and thorough findings of fact, rulings of law, and decision.  The Massachusetts State College Building Authority (MSCBA) hired Suffolk to serve as general contractor on the construction of three interconnected dormitories at what is now known as Westfield State University (the project).  As the dormitories were to be ready for occupancy by students arriving for the fall semester in 2005, the contract […]

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Posted by Massachusetts Legal Resources - March 29, 2017 at 6:26 pm

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Bridgeman, et al. v. District Attorney for the Suffolk District, et al. (Lawyers Weekly No. 10-014-17)

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   SJC-12157   KEVIN BRIDGEMAN & others[1]  vs.  DISTRICT ATTORNEY FOR THE SUFFOLK DISTRICT & others.[2]       Suffolk.     November 16, 2016. – January 18, 2017.   Present:  Gants, C.J., Botsford, Lenk, Hines, Gaziano, Lowy, & Budd, JJ.     Controlled Substances.  Constitutional Law, Conduct of government agents.  Due Process of Law, Disclosure of evidence, Presumption.  Supreme Judicial Court, Superintendence of inferior courts.  Practice, Criminal, Postconviction relief, Conduct of government agents, Disclosure of evidence, Plea, New trial.  Evidence, Certificate of drug analysis, Disclosure of evidence.       Civil action commenced in the Supreme Judicial Court for the county of Suffolk on January 9, 2014.   The case was reported by Botsford, J.     Matthew R. Segal (Daniel N. Marx, Adriana LaFaille, & Carlton E. Williams also present) for the petitioners. Benjamin H. Keehn, Committee for Public Counsel Services (Nancy J. Caplan & Eric Brandt, Committee for Public Counsel Services, also present) for Committee for Public Counsel Services. Quentin R. Weld, Assistant District Attorney, for District Attorney for the Essex District. Susanne M. O’Neil, Assistant District Attorney, for District Attorney for the Norfolk District. Vincent J. DeMore, Assistant District Attorney, for District Attorney for the Suffolk District. The following were present but did not argue: Robert J. Bender & Hallie White Speight, Assistant District Attorneys, for District Attorney for the Middlesex District. Gail M. McKenna, Assistant District Attorney, for District Attorney for the Plymouth District. Brian S. Glenny, Assistant District Attorney, for District Attorney for the Cape & Islands District. Aaron M. Katz, for Massachusetts Association of Criminal Defense Lawyers, amicus curiae. The following submitted briefs for amici curiae: Joseph S. Dowdy & Christine C. Mumma, of North Carolina, John Roddy, & Denise McWilliams for New England Innocence Project & another. Janet Moore, of Ohio, & Patricia A. DeJuneas for National Association for Public Defense. Anthony A. Scibelli & Elizabeth A. Ritvo for Boston Bar Association. Daniel K. Gelb, Chauncy B. Wood, Naveen Ganesh, & Peter Walkingshaw for National Association of Criminal Defense Lawyers & another.     GANTS, C.J.  We once again confront the tragic legacy of the misconduct of Annie Dookhan when she was employed as a chemist at the William A. Hinton State Laboratory Institute (Hinton lab).  In Bridgeman v. District Attorney for the Suffolk Dist., 471 Mass. 465, 487 (2015) (Bridgeman I), the petitioners and the intervener, […]

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Posted by Massachusetts Legal Resources - January 18, 2017 at 4:53 pm

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Suffolk Construction Company, Inc. v. Benchmark Mechanical Systems, Inc., et al. (Lawyers Weekly No. 10-125-16)

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-12020   SUFFOLK CONSTRUCTION COMPANY, INC.  vs.  BENCHMARK MECHANICAL SYSTEMS, INC., & another.[1]       Suffolk.     May 2, 2016. – August 12, 2016.   Present:  Gants, C.J., Spina, Botsford, Duffly, Lenk, & Hines, JJ.[2]       Uniform Commercial Code, Secured creditor.  Practice, Civil, Motion to dismiss, Summary judgment, Statute of limitations.  Subrogation.  Indemnity.  Unjust Enrichment.  Restitution.  Limitations, Statute of.       Civil action commenced in the Superior Court Department on April 22, 2013.   A motion to dismiss was heard by Christine M. Roach, J.; a motion for judgment on the pleadings was heard by her; cross motions for summary judgment were heard by Janet L. Sanders, J.; and entry of separate and final judgment was ordered by Sanders, J.   The Supreme Judicial Court granted an application for direct appellate review.     Robert Popeo (Paul J. Ricotta with him) for the plaintiff. Mark W. Corner (Peter H. Sutton with him) for Benchmark Mechanical Systems, Inc. Eric P. Magnuson (Nelson G. Apjohn with him) for Reading Co-Operative Bank.     SPINA, J.  In Reading Co-Operative Bank v. Suffolk Constr. Co., 464 Mass. 543, 551 (2013) (Suffolk I), we held that “G. L. c. 106, §§  9-405, 9-607, and 9-608, provide a comprehensive scheme” that allowed Reading Co-Operative Bank (bank) to require Suffolk Construction Company, Inc. (Suffolk), to fully perform its obligations under a collateral assignment of payments under a subcontract between Suffolk and Benchmark Mechanical Systems, Inc. (Benchmark), to secure a debt owed by Benchmark to the bank even if the value of the collateral exceeded the amount owed to the bank.  After that decision, Suffolk commenced this action to recover the surplus that resulted after the bank applied that collateral to satisfy Benchmark’s debt, plus costs of collection, pursuant to G. L. c. 106, §  9-608.[3]  Suffolk’s equitable claims for implied subrogation and implied indemnification were dismissed under Mass. R. Civ. P. 12 (b) (6) and 12 (c), 365 Mass. 754 (1974).  Its common-law claims were dismissed as time-barred under Mass. R. Civ. P. 56, 365 Mass. 824 (1974).  Suffolk appealed, and we granted its application for direct appellate review.  We now hold that Suffolk’s common-law claims are time barred, but it has stated equitable claims to prevent unjust enrichment and a windfall for which relief can be granted. Background.  The following facts, taken mostly from Suffolk I, are undisputed.  Benchmark assigned […]

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Posted by Massachusetts Legal Resources - August 13, 2016 at 2:08 am

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DiCarlo v. Suffolk Construction Co., Inc., et al. (Lawyers Weekly No. 10-019-16)

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-11854 SJC-11853   ROBERT M. DiCARLO  vs.  SUFFOLK CONSTRUCTION CO., INC., & others;[1] PROFESSIONAL ELECTRICAL CONTRACTORS OF CONNECTICUT, INC., third-party defendant. BERNARD J. MARTIN & another[2]  vs.  ANGELINI PLASTERING, INC., & others.[3]     Suffolk.  Middlesex.     October 8, 2015. – February 12, 2016.   Present:  Gants, C.J., Spina, Cordy, Botsford, Duffly, & Lenk, JJ.     Workers’ Compensation Act, Action against third person, Settlement agreement, Insurer.  Lien.  Statute, Construction.       Civil action commenced in the Superior Court Department on March 29, 2007.   A petition for settlement was heard by Frances A. McIntyre, J.   A proceeding for interlocutory review was heard in the Appeals Court by Judd J. Carhart, J.  After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review.   Civil action commenced in the Superior Court Department on September 15, 2011.   A petition for settlement was heard by Dennis J. Curran, J.   After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review.   Wystan M. Ackerman for Twin City Fire Insurance Company & another. Charlotte E. Glinka for Bernard Martin & another. Thomas R. Murphy for Robert M. DiCarlo. Paul M. Kessimian & David J. Pellegrino, for American Insurance Association, amicus curiae, submitted a brief. Annette Gonthier Kiely, Michael C. Najjar, & J. Michael Conley, for Massachusetts Academy of Trial Attorneys, amicus curiae, submitted a brief.     LENK, J.  Under Massachusetts law, employees who receive workers’ compensation benefits may not sue their employers for claims arising from work-related injuries.  See G. L. c. 152, § 24.[4]  Employees may, however, file claims against third parties for damagesarising from those injuries.  See G. L. c. 152, §§ 15, 24.  When an employee recovers damages from a third party, the workers’ compensation insurer is statutorily entitled to a lien on the recovery in the amount that the insurer paid to the employee in benefits.  See G. L. c. 152, § 15.  In these two cases, we are asked to ascertain the extent of this lien and, in particular, to clarify whether the lien attaches to damages paid by a third party for an employee’s pain and suffering. The cases involve two employees, Robert M. DiCarlo and Bernard J. Martin, who were injured in the course of their employment, collected workers’ compensation benefits, and then reached settlement agreements with third parties including damages for, […]

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Posted by Massachusetts Legal Resources - February 12, 2016 at 10:05 pm

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Skandha v. Clerk of the Superior Court for Civil Business in Suffolk County (Lawyers Weekly No. 10-168-15)

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-11811   BODHISATTVA SKANDHA  vs.  CLERK OF THE SUPERIOR COURT FOR CIVIL BUSINESS IN SUFFOLK COUNTY. September 29, 2015. Supreme Judicial Court, Superintendence of inferior courts.  Mandamus.  Practice, Civil, Action in nature of mandamus, Assembly of record.  Clerk of Court.   The petitioner, Bodhisattva Skandha, appeals from a judgment of a single justice of this court denying his petitions pursuant to G. L. c. 211, § 3, and for relief in the nature of mandamus pursuant to G. L. c. 249, § 5.  We affirm.   Background.  The petitions stem from Skandha’s effort to appeal from the dismissal of a complaint in the Superior Court that he and two other plaintiffs filed, in August, 2010, against the Committee for Public Counsel Services (CPCS) and several associated attorneys.  The plaintiffs claimed that CPCS and the attorneys had violated the plaintiffs’ due process rights by, among other things, failing to screen their new trial motions to determine whether they had any claims that would entitle them to relief from their respective convictions.  A judge in the Superior Court dismissed the complaint, in May, 2013, and it appears that Skandha timely filed a notice of appeal.[1]  The appeal was dismissed, however, in January, 2014, apparently on the basis that Skandha had failed to take the necessary steps to perfect it.[2]   Skandha subsequently timely filed a notice of appeal from the dismissal of his appeal, as he was entitled to do (in which he again indicated that there were no transcripts in the matter, see note 2, supra).  He also filed, in March, 2014, a “motion for the court to order the clerk to provide the pleadings for the plaintiffs’ appeal,” and, in June, 2014, a motion in the Superior Court asking the court “to order the clerk to assemble the record.”  Both of these motions were stamped “rejected” on June 26, 2014, and never docketed.  After his efforts to appeal stalled in the Superior Court, Skandha filed his petitions in the county court for relief in the nature of mandamus and pursuant to G. L. c. 211, § 3, asking the single justice to direct the clerk of the Superior Court to assemble the record for purposes of his appeal.  The petitions were denied without a hearing.   Discussion.  Skandha has now filed what appears to have been intended as a memorandum and appendix pursuant to S.J.C. Rule 2:21, as amended, 434 Mass. […]

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Posted by Massachusetts Legal Resources - September 29, 2015 at 7:35 pm

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Bridgeman v. District Attorney for the Suffolk District, et al. (Lawyers Weekly No. 10-082-15)

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-11764 KEVIN BRIDGEMAN & others[1]  vs.  DISTRICT ATTORNEY FOR THE SUFFOLK DISTRICT & another.[2]       Suffolk.     January 8, 2015. – May 18, 2015.   Present:  Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ.     Controlled Substances.  Constitutional Law, Plea, Conduct of government agents, Judicial review, Sentence, Delay in commencement of prosecution.  Due Process of Law, Plea, Sentence, Delay in commencement of prosecution, Intervention in civil action.  Committee for Public Counsel Services.  Attorney at Law, Attorney as witness.  Practice, Criminal, Plea, Postconviction relief, New trial, Sentence, Delay in commencement of prosecution, Conduct of government agents, Cross-examination by prosecutor.  Evidence, Guilty plea, Certificate of drug analysis, Disclosure of evidence, Cross-examination.  Supreme Judicial Court, Superintendence of inferior courts.  Practice, Civil, Intervention.       Civil action commenced in the Supreme Judicial Court for the county of Suffolk on January 9, 2014.   The case was reported by Botsford, J.     Matthew R. Segal (Daniel N. Marx with him) for the petitioners. Benjamin H. Keehn, Committee for Public Counsel Services (Nancy J. Caplan, Committee for Public Counsel Services, with him) for the intervener. Vincent J. DeMore, Assistant District Attorney, for District Attorney for the Suffolk District. Quentin Weld, Assistant District Attorney, for District Attorney for the Essex District. Jean-Jacques Cabou, of Arizona; Joanna Perini-Abbott, of Oregon; & Daniel Gelb & Elizabeth A. Lunt, for National Association of Criminal Defense Lawyers & another, amici curiae, submitted a brief. Richard Marshall, of New York, & Aaron M. Katz, C. Thomas Brown, Mark Vaughn, & Barbara J. Dougan, for Families Against Mandatory Minimums & others, amici curiae, submitted a brief.     SPINA, J.  The present case is the latest in a series of cases concerning the egregious misconduct of Annie Dookhan, a chemist who was employed in the forensic drug laboratory of the William A. Hinton State Laboratory Institute (Hinton drug lab) from 2003 until 2012.[3]  Kevin Bridgeman, Yasir Creach, and Miguel Cuevas (collectively, the petitioners) are three individuals who pleaded guilty to various drug offenses in cases where Dookhan signed the certificates of drug analysis (drug certificates) on the line labeled “Assistant Analyst.”  On January 9, 2014, prior to this court’s decision in Commonwealth v. Scott, 467 Mass. 336 (2014), the petitioners filed a petition in the county court pursuant to G. L. c. 211, § 3, asking the court for two forms of relief.  […]

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Posted by Massachusetts Legal Resources - May 18, 2015 at 3:35 pm

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Diatchenko, et al. District Attorney for the Suffolk District, et al.; Commonwealth v. Roberio (Lawyers Weekly No. 10-046-15)

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-11688 SJC-11689   GREGORY DIATCHENKO & another[1]  vs.  DISTRICT ATTORNEY FOR THE SUFFOLK DISTRICT & others.[2] COMMONWEALTH  vs.  JEFFREY S. ROBERIO. Suffolk.     November 6, 2014. – March 23, 2015.   Present:  Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ.     Constitutional Law, Sentence, Parole, Assistance of counsel, Judicial review.  Due Process of Law, Sentence, Parole, Assistance of counsel.  Parole.  Practice, Criminal, Sentence, Parole, Assistance of counsel.  Witness, Expert.       Civil action commenced in the Supreme Judicial Court for the county of Suffolk on March 19, 2013.   The case was reported by Botsford, J.   Civil action commenced in the Supreme Judicial Court for the county of Suffolk on March 10, 2014.   The case was reported by Botsford, J.     Benjamin H. Keehn, Committee for Public Counsel Services, for Gregory Diatchenko & another. Robert C. Thompson, Assistant District Attorney, for the Commonwealth. Amy L. Karangekis, Assistant Attorney General, for Massachusetts Parole Board. John P. Zanini, Assistant District Attorney, for District Attorney for the Suffolk District. The following submitted briefs for amici curiae: Kenneth J. Parsigian for Citizens for Juvenile Justice & others. David J. Apfel, Kristen A. Kearney, Kunal Pasricha, & Katherine Connolly Sadeck for Campaign for the Fair Sentencing of Youth & others. Afton M. Templin for Massachusetts Association of Criminal Defense Lawyers.     BOTSFORD, J.  In Diatchenko v. District Attorney for the Suffolk Dist., 466 Mass. 655 (2013) (Diatchenko I), this court considered the constitutionality of a life sentence without parole when applied to a juvenile homicide offender,[3] and, following Miller v. Alabama, 132 S. Ct. 2455 (2012), determined that the mandatory imposition of such a sentence violates the prohibition against cruel and unusual punishments in the Eighth Amendment to the United States Constitution as well as art. 26 of the Massachusetts Declaration of Rights.[4]  Diatchenko I, supra at 668.  The court held that a juvenile homicide offender who is convicted of murder in the first degree and receives a mandatory sentence of life in prison must be afforded a “meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation,” and this opportunity must come through consideration for release on parole.  Id. at 674, quoting Graham v. Florida, 560 U.S. 48, 75 (2010). The court’s opinion in Diatchenko I has given rise to questions concerning how the opportunity for release […]

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Posted by Massachusetts Legal Resources - March 23, 2015 at 5:55 pm

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Flaherty v. Sheriff of Suffolk County, et al. (Lawyers Weekly No. 11-023-15)

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   14-P-778                                        Appeals Court   GEORGE H. FLAHERTY  vs.  SHERIFF OF SUFFOLK COUNTY & another.[1] No. 14-P-778. Suffolk.     December 9, 2014. – March 16, 2015.   Present:  Cohen, Fecteau, & Massing, JJ.     Sheriff.  Correction Officer.  Public Employment, Assault pay benefits, Worker’s compensation, Retirement.  Workers’ Compensation Act, Public employee.  Limitations, Statute of.  Commonwealth, Claim against.       Civil action commenced in the Superior Court Department on November 15, 2010.   The case was heard by Linda E. Giles, J., on motions for summary judgment.     Christopher G. Perillo for the defendants. Arinda R. Brooks for the plaintiff.     MASSING, J.  The defendants, the sheriff of Suffolk County and the Suffolk County sheriff’s department (collectively referred to as the Commonwealth[2]), appeal from a judgment of the Superior Court finding the Commonwealth liable for assault pay owed to the plaintiff, George H. Flaherty, under G. L. c. 126, § 18A (sometimes referred to as the statute).  The Commonwealth contends (1) that Flaherty’s entitlement to assault pay terminated when he reached the mandatory age of retirement for correction officers and became entitled to superannuation retirement benefits and (2) that his action is barred by the statute of limitations.  The Superior Court judge rejected both contentions.  We agree with the judge’s conclusion that Flaherty was entitled to assault pay as long as he was receiving workers’ compensation benefits, and that his action is not time barred, but we agree with the Commonwealth that the applicable statute of limitations is G. L. c. 260, § 3A, precluding Flaherty from recovering payments that became due more than three years before he filed his complaint. Background.  While working as a Suffolk County correction officer in January, 2006, Flaherty was injured as a result of prisoner violence.  An administrative judge of the Department of Industrial Accidents found that he was partially disabled and awarded him workers’ compensation benefits beginning January 4, 2006.  He continued to receive workers’ compensation benefits until September 1, 2010, the effective date of a lump sum settlement agreement that ended his entitlement to those benefits.  On November 15, 2010, Flaherty filed an action in the Superior Court claiming that the Commonwealth was required by G. L. c. 126, § 18A, to compensate him with assault pay during the period he received workers’ compensation benefits.  The Commonwealth did not dispute that Flaherty was entitled to assault pay but argued that his superannuation […]

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Posted by Massachusetts Legal Resources - March 16, 2015 at 5:46 pm

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