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Court

Massachusetts Unified County

Massachusetts

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Case Information

Filed 2022-10-24
Status Closed
Type Ota Other
Docket 49 entries
Disposition judgment entered

Parties

Plaintiff City Of Malden
Defendant Benevolent Botanicals Llc|926 Eastern Avenue Llc

Lawyers

Docket Entries

  1. Benevolent Botanicals LLC and 926 Eastern Avenue, LLC's Withdrawal of Notice of Appeal, filed.
  2. Case assigned to the Average Track per Land Court Standing Order 1:04.
  3. Land Court miscellaneous filing fee Receipt: 435305 Date: 10/24/2022
  4. Land Court surcharge Receipt: 435305 Date: 10/24/2022
  5. Uniform Counsel Certificate for Civil Cases filed by Plaintiff.
  6. The case has been assigned to the A Track. Notice sent. Notice of Judge and Track Assignment was generated and sent to: Plaintiff: Alicia Ann McNeil, Esq. [email protected] Sent On: 11/01/2022 12:07:31
  7. Event Scheduled Judge: Rubin, Hon. Diane R. Event: Case Management Conference Date: 11/16/2022 Time: 10:00 AM Counsel notified via email.
  8. Joint Case Management Conference Statement, filed.
  9. Event Resulted: Case Management Conference scheduled on: 11/16/2022 10:00 AM Has been: Status conference held via videoconference in 22 MISC 000076 and case management conference held via videoconference in 22 MISC 000552. Attorneys Michael Rosen and Adam Gutbezahl appeared on behalf of the plaintiffs in 22 MISC 000076 and the defendants in 22 MISC 000552, with Gary Oshry and Michael Clebnik present, and Attorney Alicia McNeil appeared on behalf of the defendants in 22 MISC 000076 and the plaintiff in 22 MISC 000552. Court is in receipt of the Joint Status Report in 22 MISC 000076 and the Joint Case Management Conference Statement in 22 MISC 000552. With respect to 22 MISC 000076, counsel advised that the only fact discovery outstanding is the deposition of Mr. Clebnik, which was postponed due to a health issue and is now scheduled for November 21, 2022, and that the parties are still in the process of engaging experts. Following colloquy, fact discovery is extended for the limited purpose of conducting Mr. Clebnik's deposition, and the deadline for expert designations and disclosures is extended to December 30, 2022. With respect to 22 MISC 000552, counsel advised that the City of Malden is appealing defendants' claim that the City should provide defendants with a Certificate of Constructive Approval under G.L. c. 40A, 9. Attorney Rosen advised that in his opinion, 22 MISC 000552 is a matter of bylaw interpretation, and will be ripe for a judgment on the pleadings without discovery. Attorney McNeil advised that she does not anticipate the need for discovery, but needs to confirm with her client. Following colloquy, Defendants in 22 MISC 000552 may file on or after December 1, 2022, any dispositive motions in accordance with Land Court Rule 4, provided that if Plaintiff believes discovery is necessary, it may provide written notice to the court identifying what discovery is necessary. Status conference in both cases scheduled for January 5, 2023, at 9:30 A.M., with parties to file by December 30, 2022, a joint status report on both cases. Hon. Diane R. Rubin, Presiding Counsel notified via email.
  10. Defendants/Counterclaim Plaintiffs Benevolent Botanicals LLC and 926 Easter Avenue LLC's Answer, Affirmative Defenses and Counterclaims, filed.
  11. Appearance of Bradley L Croft, Esq., Michael Dana Rosen, Esq., Adam Garrett Gutbezahl, Esq. for Benevolent Botanicals LLC, 926 Eastern Avenue LLC, filed
  12. Scheduled Judge: Rubin, Hon. Diane R. Event: Status Conference Date: 01/05/2023 Time: 09:30 AM
  13. Counterclaim Defendants, City of Malden and Nelson Miller, in his capacity as Building Commissioner for the City of Malden, Answer and Affirmative Defenses, filed.
  14. Defendant, Nelson Miller's Motion to Dismiss, filed.
  15. Defendant, Nelson Miller's Memorandum of Law in Support of his Motion to Dismiss, filed.
  16. Stipulation of Dismissal as to the Counterclaim Defendant, Nelson Miller ONLY, filed.
  17. Due to the Stipulation of Dismissal as to the Counterclaim Defendant, Nelson Miller ONLY being filed, the Defendant, Nelson Miller's Motion to Dismiss is MOOT. Counsel notified via email. Judge: Rubin, Hon. Diane R.
  18. Event Resulted: Status Conference scheduled on: 01/05/2023 09:30 AM Has been: Rescheduled to January 11, 2023 at 11:30 am. Hon. Diane R. Rubin, Presiding
  19. Scheduled Judge: Rubin, Hon. Diane R. Event: Status Conference Date: 01/11/2023 Time: 11:30 AM Counsel notified via email.
  20. Benevolent Botanicals LLC and 926 Eastern Avenue, LLC''s Motion for Summary Judgment, filed.
  21. Memorandum of Law in Support of Benevolent Botanicals LLC and 926 Eastern Avenue, LLC's Motion for Summary Judgment, filed.
  22. Benevolent Botanicals LLC and 926 Eastern Avenue, LLC's Concise Statement of Material Facts, filed.
  23. Appendix in Support of Benevolent Botanicals LLC and 926 Eastern Avenue, LLC's Motion for Summary Judgment, filed.
  24. Joint Status Report, filed.
  25. Event Resulted: Status Conference scheduled on: 01/11/2023 11:30 AM Has been: Status conference held via videoconference in 22 MISC 000076 and 22 MISC 000552. Attorneys Michael Rosen and Adam Gutbezahl appeared on behalf of the plaintiffs in 22 MISC 000076 and the defendants in 22 MISC 000552, with Gary Oshry and Michael Clebnik present, and Attorney Alicia McNeil appeared on behalf of the defendants in 22 MISC 000076 and the plaintiff in 22 MISC 000552 (the "City"). Court is in receipt of the Joint Status Report in both cases. Counsel first advised that discovery in 22 MISC 000076 is nearly complete, but Attorney McNeil advised that the City is still working to engage an expert witness. Following colloquy, the deadline for expert designations and disclosures in 22 MISC 000076 is extended to January 31, 2023, for plaintiffs and to February 28, 2023, for defendants. Court then discussed with counsel whether they intend to resolve these cases through trial or by motion(s) for summary judgment, and whether the cases should be heard together or whether a determination in one may affect the outcome in the other. Counsel jointly advised that the cases should be heard separately, with 22 MISC 000552 decided prior to 22 MISC 000076. Counsel further advised that they intend to resolve 22 MISC 000552 through motion(s) for summary judgment, with defendants in that case already having filed a motion, and to proceed to trial in 22 MISC 000076. Following colloquy, court put in place the following briefing schedule for defendants' motion for summary judgment in 22 MISC 000552: by February 2, 2023, plaintiff to file any oppositions and/or cross motions for summary judgment; any responses to be filed by February 28, 2023; and any further filings by March 14, 2023. Hearing on motion(s) for summary judgment scheduled for March 23, 2023, at 10:00 A.M. In 22 MISC 000076, parties to file a joint status report by April 3, 2023, with a status conference scheduled for May 5, 2023, which may be converted to a Pre-Trial Conference, as may be appropriate. Hon. Diane R. Rubin, Presiding Counsel notified via email.
  26. Scheduled Judge: Rubin, Hon. Diane R. Event: Summary Judgment Hearing Date: 03/23/2023 Time: 10:00 AM
  27. Benevolent Botanicals LLC and 926 Eastern Avenue, LLC's Motion to Amend Counterclaims, filed.
  28. City of Malden's Motion to Enlarge Time to File Opposition to Defendants'/Counterclaim Plaintiffs' Summary Judgment Motion and Opposition to Defendants'/Counterclaim Plaintiffs Motion to Amend their Counterclaims along with Supporting Affidavit, filed and ALLOWED. The time for the City to file their Oppositions to the pending motions has been extended to February 13, 2023. Any Responses to Oppositions are now due March 3, 2023. Counsel notified via email. Judge: Rubin, Hon. Diane R.
  29. City of Malden's Cross-Motion for Summary Judgment and Opposition to Benevolent Botanicals, LLC's and 926 Eastern Avenue LLC's Motion for Summary Judgment , filed.
  30. City of Malden's Memorandum in Support of its Cross-Motion for Summary Judgment and Opposition to Benevolent Botanicals, LLC's and 926 Eastern Avenue, LLC's Motion for Summary Judgment, filed.
  31. City of Malden's Response to Benevolent Botanicals LLC and 926 Eastern Avenue, LLC's Statement of Material Facts, filed.
  32. City of Malden's Statement of Material Facts, filed.
  33. City of Malden's Motion and Memorandum in Opposition to Benevolent Botanicals, LLC and 926 Eastern Avenue, LLC's Motion to Amend the Counterclaim of a Second Notice of Constructive Approval, filed.
  34. Plaintiff/Counterclaim Defendant, City of Malden's Appendix in Support of Summary Judgment, filed.
  35. Benevolent Botanicals LLC and 926 Eastern Avenue, LLC"s Reply in Support of their Motion to Amend Counterclaims, filed.
  36. Benevolent Botanicals LLC and 926 Eastern Avenue, LLC's Consolidated Reply in Support of their Motion for Summary Judgment and Opposition to Cross-Motion for Summary Judgment, filed.
  37. Benevolent Botanicals LLC and 926 Eastern Avenue, LLC's Response to City of Malden's Statement of Material Facts and Statement of Additional Material Facts, filed.
  38. Appendix in Support of Benevolent Botanicals LLC and 926 Eastern Avenue, LLC's Consolidated Reply in Support of their Motion for Summary Judgment and Opposition to Cross-Motion for Summary Judgment, filed.
  39. Emailed copy of the City of Malden's Zoning Ordinances.
  40. City of Malden's Surreply of its Motion for Summary Judgment and Opposition to Benevolent Botanicals, LLC's and 926 Eastern Avenue, LLC's Reply for Summary Judgment Motion, filed.
  41. Event Resulted: Summary Judgment Hearing scheduled on: 03/23/2023 10:00 AM Has been: Hearing on cross-motions for summary judgment held via videoconference. Attorney Alicia McNeil appeared on behalf of the plaintiff and Attorneys Michael Rosen and Adam Gutbezahl appeared on behalf of the Defendants, with Gary Oshry and Michael Clebnik present. Before the court were: Benevolent Botanicals LLC and 926 Eastern Avenue, LLC''s Motion for Summary Judgment; City of Malden's Cross-Motion for Summary Judgment and Opposition to Benevolent Botanicals, LLC's and 926 Eastern Avenue LLC's Motion for Summary Judgment; Benevolent Botanicals LLC and 926 Eastern Avenue, LLC's Consolidated Reply in Support of their Motion for Summary Judgment and Opposition to Cross-Motion for Summary Judgment; City of Malden's Surreply of its Motion for Summary Judgment and Opposition to Benevolent Botanicals, LLC's and 926 Eastern Avenue, LLC's Reply for Summary Judgment Motion; and supportive filings thereto each. Following argument and as soon as practicable, Defendants to file a short supplement to their Appendix in Support of Motion for Summary Judgment, with court to take the cross-motions under advisement upon receipt. Hon. Diane R. Rubin, Presiding
  42. Supplement to Exhibit N to the Appendix in Support of Benevolent Botanicals LLC and 926 Eastern Avenue, LLC's Motion for Summary Judgment. Included is a copy of the Judgment that was issued in 22MISC000519 - Northbridge McQuade, LLC v. Hansson, et al., which was discussed at the hearing.
  43. Decision and Order on Cross Motions for Summary Judgment issued. Judge: Rubin, Hon. Diane R.
  44. Judgment entered. Judge: Rubin, Hon. Diane R.
  45. Notice of Appeal by Benevolent Botanicals LLC, 926 Eastern Avenue LLC to the Appeals Court filed.
  46. Notice of Service of Notice of Appeal sent to Alicia Ann McNeil, Esq.
  47. Benevolent Botanicals LLC and 926 Eastern Avenue, LLC's Certification under Mass. R. App. 8(b)(1)(A) & Notification under Mass. R. App. 9(d)(2)(C), filed.
  48. Notice of Assembly of Record on Appeal sent to the Clerk of the Appeals Court.
  49. Notice of Assembly of Record on Appeal sent to all counsel of record.

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