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Case Information
Filed
2024-05-30
Status
Closed
Type
E Filed Ota Other
Docket
52 entries
Parties
Plaintiff
Hurley, Kristin Marie
Defendant
Doyle, Alexandra|Doyle, Brian|Doyle, Brianna
Lawyers
Docket Entries
- Stipulation of Dismissal - Mass.R.Civ.P. 41(a)(1)(ii)
- Land Court surcharge Receipt: 450829 Date: 05/30/2024
- Case assigned to the Average Track per Land Court Standing Order 1:04.
- Uniform Counsel Certificate for Civil Cases filed by Plaintiff.
- Motion for Appointment of Special Process Server and Order of Appointment, filed.
- Complaint eFiled.
- May 30, 2024. Motion for Appointment of Special Process Server, APPROVED. (Patterson, Rec.) Notice of Docket Entry was generated and sent to: Plaintiff: Howard J Potash, Esq. [email protected] Sent On: 05/30/2024 12:34:21
- Motion for Short Order of Notice, filed.
- Plaintiff's Motion for Injunctive Relief Pursuant to Mass.R.Civ.P.65(a), filed.
- Affidavit of Kristen Marie Hurley, filed.
- May 30, 2024. Motion for Short Order of Notice, ALLOWED. A short order of notice is to issue for hearing on the motion for preliminary injunction. The hearing is to be held in person at 3 Pemberton Square in Boston on Tuesday, June 11, 2024 at 2:00 p.m. Plaintiff is to serve the short order of notice, the complaint, the preliminary injunction moving papers, and all supporting papers upon the defendants so they are received by them no later than Tuesday, June 4, 2024 if the hearing is to go forward on June 11, 2024 as scheduled. The motion to allow process to be served by Francis J. Trapasso & Associates is ALLOWED. (Piper, C.J.) Notice of Docket Entry was generated and sent to: Plaintiff: Howard J Potash, Esq. [email protected] Sent On: 05/30/2024 15:38:36
- Summons and Hearing Notice issued on Application for Preliminary Injunction. Judge: Piper, Hon. Gordon H. Event: Hearing on Preliminary Injunction Date: 06/11/2024 Time: 02:00 PM
- Summons returned to Court with service on Alexandra Doyle filed. Service on June 3, 2024 at last and usual place of abode.
- Summons returned to Court with service on Brianna Doyle filed. Service on June 3, 2024 at last and usual place of abode.
- Summons returned to Court with service on Brianna Doyle filed. Service on June 3, 2024 at last and usual place of abode.
- The case has been assigned to the A Track. Notice sent. Notice of Judge and Track Assignment was generated and sent to: Plaintiff: Howard J Potash, Esq. [email protected] Sent On: 06/03/2024 15:04:41
- Event Scheduled Judge: Piper, Hon. Gordon H. Event: Case Management Conference Date: 06/25/2024 Time: 01:50 PM (via ZOOM) (Case Management Conference Notice and Order was generated and sent to: Plaintiff: Howard J Potash, Esq. [email protected] Sent On: 06/03/2024 15:07:33 Email notice and ZOOM access information sent to Attorney Potash on 6/3/2024.
- Supplemental Affidavit of Kristin Marie Hurley (in support of Plaintiff's Motion for Preliminary Injunction), filed.
- Certificate of Service (of Supplemental Affidavit of Kristin Marie Hurley (in support of Plaintiff's Motion for Preliminary Injunction), filed.
- Notice of Appearance of Adam Ponte for Defendants Alexandra Doyle, Brian Doyle and Brianna Doyle, filed.
- Notice of Appearance of Anthony Moroso for Defendants Alexandra Doyle, Brian Doyle and Brianna Doyle, filed.
- Joint Motion to Continue Preliminary Injunction Hearing on June 11, 2024, filed.
- Event Resulted: Hearing on Preliminary Injunction scheduled on: 06/11/2024 02:00 PM Has been: Continued For the following reason: Request of all Parties Hon. Gordon H. Piper, Presiding
- Hearing Notice issued on Application for Preliminary Injunction. Judge: Piper, Hon. Gordon H. Event: Rescheduled Hearing on Preliminary Injunction Date: 06/25/2024 Time: 01:30 PM (in-person) *To be held in conjunction with the rescheduled Case Management Conference. Email notice to counsel on 6/6/2024.
- Event Resulted: Case Management Conference scheduled on: 06/25/2024 01:50 PM Has been: Rescheduled Hon. Gordon H. Piper, Presiding
- Event Scheduled Judge: Piper, Hon. Gordon H. Event: Rescheduled Case Management Conference Date: 06/25/2024 Time: 01:30 PM (in-person) *To be held in conjunction with rescheduled hearing on application for preliminary injunction. Case Management Conference Notice and Order was generated and sent to: Plaintiff: Howard J Potash, Esq. [email protected] Defendant: Adam Chin Ponte, Esq. [email protected] Defendant: Anthony Moroso, Esq. [email protected] Sent On: 06/06/2024 13:38:02 Email notice to counsel on 6/6/2024.
- Defendants' Answer and Counterclaim (and Jury Demand), filed.
- Affidavit of Patrick Prichard (in support of Motion for Injunctive Relief), filed.
- Joint Case Management Conference Statement, filed.
- Answer and Counterclaim, filed.
- Defendant's Opposition to Motion for Preliminary Injunction, filed.
- Affidavit of Alexandra Doyle (in support of Defendant's Opposition to Motion for Preliminary Injunction), filed.
- Affidavit of Brian Doyle (in support of Defendant's Opposition to Motion for Preliminary Injunction), filed.
- Affidavit of Brianna Doyle (in support of Defendant's Opposition to Motion for Preliminary Injunction), filed.
- Plaintiff's Memorandum in Support of Preliminary Injunction, filed.
- Affidavit of Howard Potash (in Support of Preliminary Injunction), filed.
- The following events will now be held by videoconference (not in-person): Scheduled Judge: Piper, Hon. Gordon H. Event: Rescheduled case management conference and rescheduled hearing on motion for preliminary injunction Date: 06/25/2024 Time: 1:30 PM (converted to ZOOM event) Email notice to counsel on 6/24/2024.
- Affidavit of Ashley Fritz (in support of Plaintiff's Motion for Preliminary Injunction), filed.
- Affidavit of Jonathan Catanaro (in support of Plaintiff's Motion for Preliminary Injunction), filed.
- Event Resulted: Hearing on Preliminary Injunction scheduled on: 06/25/2024 01:30 PM Has been: Held via video Hon. Gordon H. Piper, Presiding
- Event Resulted: Case Management Conference scheduled on: 06/25/2024 01:30 PM Has been: Held via video Hon. Gordon H. Piper, Presiding June 25, 2024. Case Management Conference held via videoconference and hearing held via videoconference on plaintiffs' Application for Preliminary Injunction. Early intervention event held. Attorney Howard Potash appeared for plaintiff. Attorney Anthony Moroso appeared for defendants. This case concerns access rights to and over properties located in Worcester, Massachusetts owned by the parties. Plaintiff owns at 157-159 Moreland Street ("157-159 Moreland"). Defendants own and reside at 155 Moreland Street ("155 Moreland"). According to the plaintiff, the 157-159 Moreland and 155 Moreland properties previously were in common ownership, until the plaintiff purchased 157-159 Moreland in October 2022. Counsel confirmed that plaintiffs in this action seek a declaration as to shared driveway access rights and maintenance responsibilities ("Access Rights") across the defendants' property at 157 Moreland and 159 Moreland. The location of the driveway ("Driveway") is identified on Exhibits C and D to the Complaint. Plaintiff contends that she purchased 157-159 Moreland on the understanding that these Access Rights were included, as indicated to her by the listing agent for 157-159 Moreland. Plaintiff acknowledges that no record right affords her or her tenants the rights plaintiff claims to pass over defendants' land. Plaintiff additionally alleges that she and her tenants have used the Driveway since the plaintiff purchased 157-159 Moreland in 2022. However, according to the plaintiff, on April 15, 2024, the defendants erected a fence along the record boundary of 155 Moreland and 157 - 159 Moreland, "blocking" access from 157-159 Moreland onto defendants' land. Counsel agreed that the fence properly lies within the record boundaries of 155 Moreland, and does not physically encroach onto 157-159 Moreland. Plaintiff conceded that there is alternative access ("Alternative Access") within the bounds of 157-159 Moreland, but that the Alternative Access is very narrow, allegedly would not allow easy access by emergency vehicles to the rear of plaintiff's land, and may or may not be able to be widened. Attorney Potash indicated an intention to add claims for prescriptive easement and/or adverse possession to his complaint, after seeking leave of court. Defendants contend that, because of the common ownership of the land until 2022, any use by the plaintiff of the Driveway on defendants' land, even if hostile, would have be too limited in duration to give rise to prescriptive rights. Further, on the question of injunction, defendants say that the plaintiff has not demonstrated any harm to 157-159 Moreland, to plaintiff herself, or her tenants, because there is plentiful access to that property from Moreland Street, because the plaintiff could explore widening the Alternative Access way, and because parking is available on the public way on which the land involved fronts. After argument, and in consideration of the moving papers and affidavits filed, the court DENIED plaintiffs' Application for Preliminary Injunction. "The issuance of a preliminary injunction generally rests within the sound discretion of the judge ... after a combined evaluation of the moving party's likelihood of success on the merits, its claim of injury, and finally, a balancing of the competing harms to each party." General Accident Insurance Co. of America v. Bank of New-England-West, N.A., 403 Mass. 473, 475 (1988) (citation omitted); T & D Video, Inc. v. City of Revere, 423 Mass. 577, 580 (1996). After evaluating these factors, injunctive relief is only appropriate if the risk of irreparable harm to a moving party, viewed in light of that party's chances of success on the claim, outweighs the other party's probable harm and own likelihood of success. See John T. Callahan & Sons, Inc. v. City of Malden, 430 Mass. 124, 131 (1999). In addition to saving the moving party from irreparable injury, a trial court also may order a preliminary injunction to maintain the status quo until the court may adjudicate the matter fully on the merits. See Thayer Co. v. Binnall, 326 Mass. 467, 479 (1950). The court concludes that, on the limited record before it, and balancing the likely resolution of the merits of the case on final adjudication with the harms to be suffered by each party, the plaintiff has not met the requisite standard for the issuance of a preliminary injunction with regard to its request to require the defendants to remove the fence recently installed near the property line blocking access to the Driveway within 155 Moreland. The plaintiff has not adduced, on the facts as pleaded, a viable legal theory that would entitle the plaintiff to a court order granting her legal rights to a path established judicially across 155 Moreland. The prescriptive easement and adverse possession theories posited by Attorney Potash, though not yet pleaded in the complaint, similarly fail to convince the court at this preliminary stage that the plaintiff is likely to succeed on those theories. There simply is no factual basis to support the elements of a prescriptive easement, much less adverse possession, given the recent severance of the lots. Additionally, there is no convincing trespassory theory available, because the plaintiff has conceded that the fence is not a trespass, but lies entirely within the record boundary of 155 Moreland. Significant in the court's calculation is the fact that there appears to be no immediate and irreparable harm whatsoever to any party that will be brought about during the pendency of this action by the ongoing presence of the fence on the Driveway on 155 Moreland. Although the plaintiff points out that access to the rear of 157-159 Moreland is difficult if using the Alternative Access way, the plaintiff has not demonstrated why use of the Alternative Access way, or indeed of the public way fronting 157-159 Moreland, would be significantly harmful in a way that would merit the allowance of the requested preliminary injunction. Moreover, the plaintiff has not explored the possibility of widening the Alternative Access way on 157-159 Moreland, and the court therefore is unable to conclude that irreparable harm would result without issuance of a preliminary injunction. The court additionally notes that the claimed diminution in the appraised value of 157-159 Moreland resulting from the inability to use the Driveway to proceed across 155 Moreland, even if actionable under some theory not yet well articulated, is not an irreparable harm, as required for an injunction to issue, because plaintiff could seek a monetary award for that alleged injury, through this proceeding or through a separate money damages claim in another court of competent jurisdiction. By agreement of counsel, all discovery to be completed by December 31, 2024. By that date, or at conclusion of discovery, if earlier, counsel to file a detailed joint written report. In that report, counsel will set forth the discovery which has been accomplished, and advise if dispositive motions will be forthcoming, and, if so, who will file first, as to what issues, with Land Court Rule 4 to govern the content of the leading motion, which is to be filed by January 31, 2025, and the content and filing dates for any ensuing dispositive motion filings. If neither party intends to file a dispositive motion, in their joint written report, counsel are to request the court schedule a pretrial conference. Counsel advised to direct all communication with the court to sessions clerk Attorney Nicole Foster. Filings to be made electronically via the Tyler eFile system. (Piper, C.J.) Notice of Docket Entry was generated and sent to: Plaintiff: Howard J Potash, Esq. [email protected] Defendant: Adam Chin Ponte, Esq. [email protected] Defendant: Anthony Moroso, Esq. [email protected] Sent On: 07/01/2024 15:37:45 Email notice to counsel on 7/1/2024.
- Defendant Brian Doyle's Application for Final Judgment or Dismissal for Plaintiff's Failure to Answer Interrogatories, filed.
- Affidavit of Anthony M. Moroso (in support of Defendant Brian Doyle's Application for Final Judgment or Dismissal for Plaintiff's Failure to Answer Interrogatories), filed.
- Scheduled Judge: Piper, Hon. Gordon H. Event: Hearing on Motion for Judgment Date: 01/08/2025 Time: 11:50 AM (by ZOOM) Notice of Event was generated and sent to: Plaintiff: Howard J Potash, Esq. [email protected] Defendant: Adam Chin Ponte, Esq. [email protected] Defendant: Anthony Moroso, Esq. [email protected] Sent On: 12/16/2024 12:36:03 Email notice to counsel on 12/16/2024.
- (Plaintiff's) Motion to Extend Time to Respond to Discovery, filed.
- Assented-to Motion to Change Time of Hearing, filed.
- Event Resulted: Hearing scheduled on: 01/08/2025 11:50 AM Has been: Continued For the following reason: Request of Plaintiff(s) Hon. Gordon H. Piper, Presiding
- Scheduled Judge: Piper, Hon. Gordon H. Event: Hearing on Motion for Judgment Date: 01/08/2025 Time: 02:00 PM (on ZOOM) Notice of Event was generated and sent to: Plaintiff: Howard J Potash, Esq. [email protected] Defendant: Adam Chin Ponte, Esq. [email protected] Defendant: Anthony Moroso, Esq. [email protected] Sent On: 12/31/2024 11:33:31 Email notice to counsel on 12/31/2024.
- Defendants' Opposition to Plaintiff's Motion to Extend Time to Respond to Discovery, filed..
- Event Resulted: Hearing scheduled on: 01/08/2025 02:00 PM Has been: Canceled For the following reason: Case Reported Settled Hon. Gordon H. Piper, Presiding
- Notice of Docket Entry: January 7, 2025. This case is on the court's calendar tomorrow, January 8, 2025, for hearing on defendants' motion for judgment for failure to answer interrogatories, and on plaintiff's motion to extend time to respond to discovery. The Recorder's office has received on January 7, 2025 a joint request from counsel that the matters on for hearing be taken off the calendar. Counsel report that "the Parties to the action have reached an agreement in principle resolving their dispute, and are now proceeding to drafting and executing a written agreement concerning the same " and that "[t]he Parties further request entry of a 30 Day Nisi Order, and anticipate filing a stipulation of dismissal with prejudice in the action before the expiration of such order." In light of the parties' report of settlement, the matters on for hearing on January 8, 2025 are taken off the calendar with no action by the court. All proceedings in this case are stayed until February 7, 2025. The parties, through counsel, are directed to proceed earnestly, diligently, and in full good faith, to complete all steps necessary to consummate fully the settlement the parties have reported to the court, including, without limitation, the execution, acknowledgment, delivery, and recording of all documents, and the performance of all acts contemplated by their settlement, and to do so not later than February 7, 2025. On or before that date, counsel are to file with the court a stipulation dismissing this action as to all parties and claims, with prejudice. If the parties have not filed that stipulation by that date, absent further order, the court will dismiss this action on or after February 10, 2025. (Piper, C.J.) Notice of Docket Entry was generated and sent to: Plaintiff: Howard J Potash, Esq. [email protected] Defendant: Adam Chin Ponte, Esq. [email protected] Defendant: Anthony Moroso, Esq. [email protected] Sent On: 01/07/2025 11:38:56 Email notice to counsel on 1/7/2025.
- Stipulation of Dismissal with Prejudice, filed.
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