BLAKE , J. Following the entry of judgment in a summary process action in the Boston Division of the Housing Court Department, the defendant tenant, Gerald Moynahan, filed a notice of appeal from the judgment. More than one year later, the plaintiff landlord, South Boston Elderly Residences, Inc. (SBER), moved to dismiss the appeal, citing Moynahan's delay in filing the trial transcript with the court. The motion was allowed, and this appeal followed. We reverse. 1. Procedural background....
MALDONADO , J. The plaintiff appeals from a judgment of dismissal contending, as she did below, that a transaction involving the lease of a water heater was actually a credit sale in disguise, and, consequently, that the defendant's failure to make certain required disclosures amounted to common-law misrepresentation and a violation of G. L. c. 93A. Guided by Silva v. Rent-A-Center, Inc., 454 Mass. 667 (2009) ( Silva ), a Superior Court judge concluded that the transaction at...
KAFKER , C.J. In this case we must decide whether Jeffrey Pham violated affordable housing restrictions established by the Boston Redevelopment Authority (BRA) that (1) required Pham to maintain his condominium unit as his principal residence, and (2) prohibited him from leasing his unit for business or investment purposes. As we discern no error in the Superior Court judge's determination that Pham continued to occupy his condominium unit as his principal residence despite his...
RESCRIPT On May 28, 2013, the defendant pleaded guilty in Superior Court to unlawful possession of a firearm (G. L. c. 269, 10[ a ]), possession of ammunition without a firearm identification card (G. L. c. 269, 10[ h ]), possession of a class A controlled substance with the intent to distribute (G. L. c. 94C, 32), and possession of a class B controlled substance with the intent to distribute (G. L. c. 94C, 32A[ c ]). As part of the plea bargain, the Commonwealth agreed to dismiss...
GRAINGER , J. The defendant appeals from the denial of his motion to suppress evidence obtained during a warrantless search of his apartment conducted at the time of his arrest on an outstanding warrant. 1 A judge of the District Court concluded that the search was permissible as a "protective sweep." The facts found by the motion judge after an evidentiary hearing are undisputed for purposes of our consideration of the motion to suppress. The salient findings are these: 2 The officers...
TRAINOR , J. Bank of America (BOA), the plaintiff, brought suit against Diamond Financial, LLC (Diamond), 2 seeking equitable subrogation of a mortgage it holds on property located at 18 Eastwood Road, in the town of Shrewsbury. The parties filed cross motions for summary judgment. In granting the plaintiff's summary judgment motion, the judge found that BOA "is entitled to be equitably subrogated to the priority position" for $330,368.29 of the previously recorded mortgage, which was...
WOLOHOJIAN , J. Although hypothetical questions are the stock in trade of law schools, it is rare to find a criminal prosecution stemming from the world of make-believe. But such we confront here. The questions raised are (1) whether there was sufficient evidence that the defendant made a false statement of fact to an undercover cooperating witness so as to support his conviction of larceny by false pretenses; and (2) whether the defendant was properly convicted of misleading a police...
KATZMANN , J . This is an interlocutory appeal taken from rulings in a suppression proceeding, and presents the following questions: whether a statement, given in an interview prior to grand jury testimony by a defendant who had been subpoenaed to testify after previously asserting that he did not wish to speak without an attorney, was voluntary; whether testimony before the grand jury was given in violation of the privilege against self-incrimination; and whether cellular tower data and...
COHEN , J. After a District Court jury trial, the defendant, an oral surgeon, was convicted of indecent assault and battery of a sixteen year old female patient, in violation of G. L. c. 265, 13H. The charge resulted from a report by the defendant's surgical assistant that she witnessed the defendant cupping his hand on the patient's breast while the patient was sedated. The sole issue on appeal concerns the admission, over the defendant's objection, of prior consistent statements...
TRAINOR , J. The plaintiff appeals from a Superior Court judgment affirming a comprehensive permit issued pursuant to the Comprehensive Permit Act, G. L. c. 40B, 20-23 (Act), by the zoning board of appeals (board) of Stow (town) to the Stow Elderly Housing Corporation (SEHC) for the construction of a low and moderate income elderly housing project. The plaintiff, a southeast abutter of the locus, contended, among other things, that the private wells on his and his neighbors'...
AGNES , J. These are consolidated appeals by the defendant Yan Schechter (the father) from a judgment of divorce nisi and an abuse prevention order. One child, a son who is still a minor (the child), was born of the marriage. The judgment awarded sole legal and physical custody of the child to the plaintiff Karina Schechter (the mother). The father's appeal presents four principal issues for our consideration. First, we review the custody determination and the validity of a judgment...
GRAINGER , J. We are called upon to analyze certain rights and obligations resulting from the liquidation of a New Hampshire insurance company that issued workers' compensation policies in Massachusetts. At issue in this appeal is the company's entitlement pursuant to G. L. c. 152, 65(2), to reimbursement for cost of living adjustments (COLA, COLA increases), as prescribed by G. L. c. 152, 34B, to eleven individuals receiving workers' compensation benefits. Both an administrative...
GRAINGER , J. Lumbermens Mutual Casualty Company in liquidation (Lumbermens) appeals from the Superior Court judgment dismissing its claim against the Workers' Compensation Trust Fund (trust fund). Lumbermens sought partial reimbursement from the fund for workers' compensation payments made pursuant to G. L. c. 152, 37 and 65. A Superior Court judge dismissed the claim under the doctrine of primary jurisdiction. We affirm. Background. We summarize the undisputed facts. Lumbermens,...
MILKEY , J. Following a jury trial in the District Court, the defendant was convicted of assault and battery by means of a dangerous weapon. G. L. c. 265, 15A(b). Although we conclude that the trial evidence was sufficient to support that conviction, we agree with the defendant that the introduction of evidence regarding pretrial probable cause hearings constituted reversible error. We therefore vacate the judgment. Background. 1. The incident. The defendant was a member of a...
CARHART , J. The defendant appeals from his convictions of three counts of rape of a child with force, three counts of aggravated rape of a child, three counts of indecent assault and battery on a child under fourteen, and assault with intent to rape a child, arguing that (1) the motion judge erred in allowing the Commonwealth's motion in limine to present prior bad act evidence, (2) the trial judge erred in allowing prior bad act evidence as evidence at the trial and in his...
TRAINOR , J. The plaintiff brought a medical malpractice action against the defendant. The jury concluded, pursuant to the judge's instructions, that the statute of limitations had run because the plaintiff knew or reasonably should have known more than three years before filing his complaint that he had been harmed by the defendant. 2 , 3 Judgment entered for the defendant, and the plaintiff's subsequent motion for a new trial was denied. The plaintiff appeals, arguing that it was...
MASSING , J. The defendant, James S. Winquist, appeals from two convictions of second-degree murder. He claims that two statements of Eric Snow, his joint venturer in the murders, were erroneously admitted against him as coconspirator statements; that the trial judge erred by denying his midtrial request for a hearing under Franks v. Delaware , 438 U.S. 154 (1978); that the prosecutor's closing argument was improper; and that a key witness, Kelly Burgess, was incompetent to testify....
FECTEAU , J. Plaintiffs Michael Lind and Lisa Bishop, coadministrators of the estate of their son, Corey M. Lind (Corey), appeal from separate and final judgments entered in the Superior Court resolving all claims in favor of the defendants Domino's Pizza LLC and Domino's Pizza, Inc., in connection with the plaintiffs' wrongful death action filed pursuant to G. L. c. 229, 2. 4 The plaintiffs challenge as error the reconsideration and partial allowance by the judge, on the eve of...
MILKEY , J. At an ex parte hearing, a Juvenile Court judge issued a temporary harassment prevention order against the defendant, an eleven year old boy. See G. L. c. 258E, 5. The order was issued based on allegations that the defendant had digitally raped the plaintiff, the seven year old girl on whose behalf the harassment complaint was filed. Following an evidentiary hearing, the judge extended the order for one year. 1 On appeal of the order issued after hearing, 2 the defendant...
COHEN , J. This insurance dispute arises from an accident in which Richard Dubois was injured while working at a residence in Medford. The residence was owned by Francis and Eileen Munyon, who lived there with their adult son, Joseph. 2 In October, 2009, the Munyons undertook to renovate their second-floor bathroom and hired Dubois's employer as the plumbing contractor. On Dubois's first day on the job, he removed old copper piping and other debris from the bathroom and attempted to throw...
