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Case Information
Filed
2023-03-27
Status
Closed
Type
Miscellaneous|Eqa Equitable Action Involving Any Right, Title Or Interest In Land, G.l. Chapter 185, § 1 (k)
Docket
26 entries
Parties
Plaintiff
Di Nicola, Kristianna
Defendant
Ely, Gerald F.|Ely, Ii, Gerald F.|The Ely Family Nominee Trust
Lawyers
Docket Entries
- Complaint filed.
- Case assigned to the Average Track per Land Court Standing Order 1:04.
- Land Court miscellaneous filing fee Receipt: 439510 Date: 03/27/2023
- Land Court surcharge Receipt: 439510 Date: 03/27/2023
- Uniform Counsel Certificate for Civil Cases filed by Plaintiff.
- Summons returned to Court with service on Gerald F. Ely, II Individually and as Beneficiary of The Ely Family Nominee Trust, and as Attorney-In-Fact for Gerlad F. Ely filed. Left at last and usual place of abode on March 31, 2023.
- Summons returned to Court with service on Gerald F. Ely, II Individually and as Beneficiary of The Ely Family Nominee Trust, and as Attorney-In-Fact for Gerlad F. Ely filed. Left at last and usual place of abode on March 31, 2023.
- The case has been assigned to the A Track. Notice sent. Notice of Judge and Track Assignment was generated and sent to: Plaintiff: Devon Willard Grierson, Esq. [email protected] Defendant: Gerald F. Ely Trustee of the Ely Family Nominee Trust No addresses available Defendant: Gerald F. Ely, II Individually and as Beneficiary of The Ely Family Nominee Trust, and as Attorney-In-Fact for Gerlad F. Ely No addresses available Defendant: The Ely Family Nominee Trust No addresses available Sent On: 04/14/2023 11:39:05
- Event Scheduled Judge: Smith, Hon. Kevin T. Event: Case Management Conference Date: 05/08/2023 Time: 11:15 AM
- Motion of Defendants, Ely Family Nominee Trust & Gerald F. Ely, II, to Dismiss, filed.
- Memorandum of Law of Defendants, Ely Family Nominee Trust & Gerald F. Ely, II, in Support of Their Motion to Dismiss, filed.
- Appearance of Andrea Francesco Nuciforo, Jr., Esq. for Kristianna DiNicola Individually and as Beneficiary of The Ely Family Nominee Trust, filed
- Withdrawal of Devon Willard Grierson, Esq. for Kristianna DiNicola Individually and as Beneficiary of The Ely Family Nominee Trust, filed
- Summons returned to Court without service on Gerald F. Ely Trustee of the Ely Family Nominee Trust filed.
- Case management conference held via videoconference. Early intervention event held. Attorney Andrea Nuciforo appeared for the plaintiff. Attorney Michael Hashim appeared for the defendants. This is a case brought by a beneficiary of a trust against the trust, the trustee, and the other beneficiary. The trust involves real property, and the dispute involves title thereto. The plaintiff alleges that she has a 50% interest in the trust along with her brother, the other beneficiary, but alleges that the plaintiff has not enjoyed the benefit of the trust. The defendants have filed a motion to dismiss for improper venue pursuant to Mass. R. Civ. P. 12(b)(1)(3), lack of subject matter jurisdiction, failure to name a proper defendant, and failure to state a claim upon which relief can be granted pursuant to Mass. R. Civ. P. 12(b)(6). Following colloquy, the court set a deadline of May 16, 2023 for the plaintiff to file any opposition papers to the motion to dismiss. The court scheduled a hearing on the motion to dismiss for May 18, 2023, at 9:30am.
- Alternative Dispute Resolution: Early Intervention Event held. Judge: Smith, Hon. Kevin T.
- Notice of Docket Entry: Notice of Docket Entry was generated and sent to: Plaintiff: Andrea Francesco Nuciforo, Jr., Esq. [email protected] Defendant: Michael D Hashim, Jr., Esq. [email protected] Defendant: Kenneth P Ferris, Esq. [email protected] Sent On: 05/17/2023 14:48:35
- Scheduled Judge: Smith, Hon. Kevin T. Event: Motion to Dismiss Date: 05/18/2023 Time: 09:30 AM
- Joint Statement, filed.
- Plaintiff's Opposition to Defendants' Motion to Dismiss, filed by email.
- Case Law in support of Plaintiff's Opposition to Defendants' Motion to Dismiss (Perry v. Lauria), filed by email.
- Case Law in support of Plaintiff's Opposition to Defendants' Motion to Dismiss (Perry v. Lauria, 91 Mass.App.Ct. 1130 (2017)), filed by email.
- Plaintiff's Appendix in support of Opposition to Defendants' Motion to Dismiss, filed by email.
- Event Resulted: Motion to Dismiss scheduled on: 05/18/2023 09:30 AM Has been: Held via video Hon. Kevin T. Smith, Presiding May 18, 2023. Motion hearing held via videoconference. Attorney Andrea Nuciforo appeared for the plaintiff. Attorney Michael Hashim appeared for the defendants. Before the court was defendants' motion to dismiss and plaintiff's opposition to the motion to dismiss. Defendants argue that this action should be dismissed for failure to state a claim upon which relief can be granted pursuant to Mass. R. Civ. P. 12(b)(6), and, most significantly, because venue is improper and the Land Court lacks subject matter jurisdiction over claims brought under the Massachusetts Uniform Trust Code and G. L. c. 203E. Plaintiff opposes the motion to dismiss, arguing that jurisdiction is proper under G. L. c. 185 § 1(k) and citing Perry v. Lauria, 22 LCR 585 (2014), a case in which claims under a nominee trust were heard by the Land Court because the trust related to ownership of real property. Defendants argue that Perry v. Lauria is distinguishable from the plaintiff's case because her case does not raise a question concerning a right, title, or interest in real property, but rather asks this court for a declaration of the plaintiff's interest in the trust as beneficiary. Plaintiff argues that the complaint seeks a declaration as to the plaintiff's ownership interest in real property as a beneficiary of the trust. Following argument, the plaintiff requested leave to amend the complaint. The court granted the request, but Attorney Nuciforo then indicated that the plaintiff is unlikely to file an amended complaint. The court took this matter under advisement. A decision will issue in due course, at which time the court will schedule a status conference, if appropriate. (Smith, J.).
- Notice of Docket Entry: Notice of Docket Entry was generated and sent to: Plaintiff: Andrea Francesco Nuciforo, Jr., Esq. [email protected] Defendant: Michael D Hashim, Jr., Esq. [email protected] Defendant: Kenneth P Ferris, Esq. [email protected] Sent On: 05/18/2023 13:48:23
- Decision on Defendants' Motion to Dismiss, issued. (Copies emailed to Attorneys Andrea Nuciforo, Kenneth Ferris, and Michael Hashim) Judge: Smith, Hon. Kevin T.
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