Minichiello Bros., Inc., et al. v. Marchese, et al. (Lawyers Weekly No. 09-052-17)
COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT CIVIL ACTION No. 2016-2676 BLS 1 MINICHIELLO BROS., INC., et al vs. JOSEPH MARCHESE, JR., et al MEMORANDUM AND ORDER ON DEFENDANTS’ MOTION FOR PARTIAL SUMMARY JUDGMENT ON COUNT XII OF THEIR COUNTERCLAIMS The parties are engaged in litigation with respect to four different parcels of real estate located in Boston and Everett, Massachusetts. In general, the defendant, Joseph Marchese, Jr., controls ownership of the parcels through various business entities. The plaintiff, Minichiello Bros., Inc., is a tenant conducting commercial activity on the parcels. For ease of reference, I will reference plaintiffs as the Tenant and defendants as the Landlord, with more specific identification used as necessary. The Tenant commenced this litigation claiming that it possessed a right to purchase some of the parcels and that the Landlord was interfering with that right and was otherwise disrupting the Tenant’s business of scrap metal recycling by wrongful acts. The Tenant sought specific performance and damages for breach of contract, fraud, violation of G. L. c. 93A and other claims. The Landlord responded by denying all claims of wrongdoing and by asserting counterclaims against the Tenant. The counterclaims are contained in 23 counts. The counterclaims allege, among other things, breach of contract, right to possession, 1 indemnification, etc.1 This motion concerns Count XII of the Landlord’s counterclaim. That count is a claim for possession of what is called “the Second Street Property.” The Landlord alleges that the Tenant occupies that parcel pursuant to an oral lease. Because it is an oral lease, the Tenant is a tenant at will. The Landlord claims that it has taken the proper steps to terminate the at will tenancy. As a result, the Landlord seeks possession of the property pursuant to G.L. c. 239, § 1, the summary process statute. By this motion for summary judgment on Count XII, the Landlord contends that there are no material factual disputes and that it is entitled to possession as a matter of law. FACTS The following facts are taken from the parties’ Statement of Undisputed Material Facts (“SUMF”). The facts referenced appear to be undisputed, although the SUMF contains a plethora of stated facts propounded by both sides that are “disputed” by the other side. Some of those disputed facts are material, as discussed below. On February 19, 2009, the Tenant entered into a written, commercial lease for property located at 0 Terminal Street in Everett. From that location, the Tenant operated a scrap metal business. Two years later, on May 24, 2011, the Landlord, specifically, Marchese Realty, LLC, purchased the property immediately adjacent to the 0 Terminal Street property. The address of this property is 413 – 421 Second Street […]