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Case Information
Filed
2023-08-21
Status
Open
Type
Miscellaneous|E Filed Eqa Equitable Action Involving Any Right, Title Or Interest In Land, G.l. Chapter 185, § 1
Docket
19 entries
Parties
Plaintiff
8 Maple St. Attleboro, Llc
Defendant
The Holy Family Coptic Orthodox Church, Inc.
Lawyers
Docket Entries
- Case assigned to the Average Track per Land Court Standing Order 1:04.
- Land Court miscellaneous filing fee Receipt: 443426 Date: 08/21/2023
- Land Court surcharge Receipt: 443426 Date: 08/21/2023
- Uniform Counsel Certificate for Civil Cases filed by Plaintiff.
- Verified Complaint eFiled.
- Summons and Hearing Notice issued on Application for Preliminary Injunction. Judge: Roberts, Hon. Jennifer S.D. Event: Hearing on Preliminary Injunction Date: 08/29/2023 Time: 10:00 AM Summons emailed to counsel. Judge: Rubin, Hon. Diane R.
- Scheduled Judge: Roberts, Hon. Jennifer S.D. Event: Temporary Restraining Order Date: 08/29/2023 Time: 10:00 AM Counsel notified via email. Judge: Rubin, Hon. Diane R.
- Motion to Appoint Special Process Server, filed and ALLOWED. Counsel emailed copy of Motion. Judge: Patterson, Deborah J.
- Appearance of Audrey Botros, Esq. for The Holy Family Coptic Orthodox Church, Inc., filed
- This case been RE-ASSIGNED to Judge Diane R. Rubin. All correspondence should be sent to her Sessions Clerk Jennifer Noonan. Counsel notified via email.
- Defendant's Answer to Complaint, filed.
- Exhibits to Defendant's Memorandum in Opposition to Declaratory Judgment and Preliminary Injunction, filed.
- Defendant's Memorandum in Opposition to Declaratory Judgment and Preliminary Injunction, filed.
- Exhibit H to Defendant's Memorandum in Opposition to Declaratory Judgment and Preliminary Injunction, filed.
- Event Resulted: Hearing on Preliminary Injunction scheduled on: 08/29/2023 10:00 AM Has been: Held via video Hon. Diane R. Rubin, Presiding
- Event Resulted: Temporary Restraining Order scheduled on: 08/29/2023 10:00 AM Has been: Hearing on Plaintiff's motion for preliminary injunctive relief and Case Management Conference held via videoconference. Early Intervention Event held. Attorney Joseph Comenzo appeared on behalf of plaintiff, with LLC manager Edmond Mahoney also present, and Attorney Audrey Boutros appeared on behalf of defendant Church, with several members of the board also present. Before the court were Plaintiff's Verified Complaint seeking preliminary injunctive relief, as well as Defendant's Answer to Complaint, Defendant's Memorandum in Opposition to Motion for Declaratory Judgment and Injunctive Relief, with Exhibits (affidavits and photographs). The Plaintiff owns a multi-family property with four residential units and a paved area in the rear, which is accessed from the street along a paved driveway adjacent to the Defendant's property. Plaintiff claims adverse possession over a slender triangular area which extends into the Defendant's adjacent property to the rear parking area, alleging more than twenty years of adverse use for a fifth parking spot for tenants, as well as for snow removal and as a turnaround area. The Defendant Church recently acquired the adjacent property from the Catholic Church; a school had previously occupied the adjacent property, but that school was razed and the property now includes both a grassy area closer to the driveway and a paved parking lot which the Defendant uses to support its Church membership and plans to fence-in for the safety of the neighborhood. Following hearing, court DENIED Plaintiff's motion for preliminary injunctive relief, for the reasons articulated on the record and as follows. A preliminary injunction may issue only if the moving party demonstrates (a) a likelihood of success on the merits, (b) that it faces a substantial risk of irreparable harm if the injunction is not issued, and (c) that this risk of irreparable harm outweighs any risk of irreparable harm which granting the injunction would create for the defendant. Garcia v. Department of Hous. and Community Dev., 480 Mass. 736, 747 (2018); GTE Products Corp. v. Stewart, 414 Mass. 721, 722-724 (1993); Packaging Indus. Group, Inc. v. Cheney, 380 Mass. 609, 617 (1980). Here, based on the record now before the court, I am unable to conclude that there is a likelihood of success on the merits of Plaintiff's claim. The Verified complaint includes several key allegations regarding the disputed area that are made only upon information and belief and thus lack the reliability and specificity necessary to establish adverse possession of the triangular area at this early stage in these proceedings. In addition, the record before the court reveals disputed issues of material fact regarding the beginning date of use, dimensions of the disputed area, and scope of use by Defendant's tenants and those of its predecessor in interest, which will benefit from discovery and trial if necessary. Court then discussed with counsel the possibility of a negotiated resolution, both long-term and with respect to a possible standstill agreement to maintain the status quo through this upcoming winter (in the event these is a significant snow event) and/or until the conclusion of these proceedings. Court encouraged the parties to consider mediation to avoid the time, expense, and risk of litigation, particularly given the fact intensive nature of the issues in dispute, and inquired as to whether a mediation screening order may be helpful. Counsel jointly advised that they are open to mediation, with court to issue a Mediation Screening Order. By October 13, 2023, parties to complete mediation screening. By October 18, 2023, parties to submit a written joint report to the court as to outcome of the mediation screening, whether parties are willing to attend mediation (and if so, naming mediation provider, identity of neutral, and date of session), whether the parties have been able to achieve a standstill agreement, and what the Defendant's timeframe is for installation of a fence. Status conference scheduled for October 26, 2023 at 10:00 A.M. Hon. Diane R. Rubin, Presiding Counsel notified via email.
- Scheduled Judge: Rubin, Hon. Diane R. Event: Status Conference Date: 10/26/2023 Time: 10:00 AM
- Alternative Dispute Resolution: Early Intervention Event held. Judge: Rubin, Hon. Diane R.
- ADR referral to REBA Dispute Resolution, Inc. issued. Judge: Rubin, Hon. Diane R.
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