Filed Date: August 28, 2015
MEMORANDUM OF DECISION AND ORDER ON PLAINTIFF'S MOTIONS FOR PRELIMINARY INJUNCTION AND ENDORSEMENT OF LIS PENDENS AND DEFENDANT'S SPECIAL MOTION TO DISMISS
Angel Kelley Brown, Justice of the Superior Court.
This case arises from a breach of contract for the purchase and sale of property. Specifically, plaintiff alleges that the defendants failed to acknowledge the assignment of rights and interests in the purchase and sale agreement, entitling plaintiff to specific performance. Furthermore, plaintiff alleges that he is entitled to a portion of the insurance proceeds for renovations financed and implemented prior to a devastating fire. The plaintiff now moves for a preliminary injunction, forbidding the defendants from transferring or conveying the property to a third person. Plaintiff also seeks an endorsement of lis pendens. For the reasons stated herein, Plaintiff's motions are Denied .
The Masonic Temple Association of Quincy, Inc. (" Masonic Temple") is a non-profit organization that owns property located at 1170 Hancock Street, Quincy, Massachusetts (" property"). In September 2012, Masonic Temple entered into a purchase and sale agreement (" P& S") with Ellen Rae Marcus, as Trustee of the Grossman Munroe Trust (" Trust") to sell and convey Unit 1 of the property, consisting of the first and upper floors of the building. Masonic Temple would retain ownership of Unit 2, consisting of the basement floor. The P& S was amended to include a rider, which provides:
In or Within Eight (8) Months from the BUYER having obtained all necessary zoning approvals, design reviews, variances, or permits necessary to allow the BUYER to do all required work for the intended use of Unit 2 in compliance and in conformity with the City of Quincy Zoning Code and prior to BUYER taking title to the Property and/or Unit 1, BUYER shall be obligated, at BUYER'S sole cost and expense, to do the work required to build out Unit 2 for the SELLER'S purposes and use as a Masonic Temple and meeting place . . .
On April 19, 2013, the plaintiff, Jay Patel, purchased an assignment of the Trust's rights and interests in the P& S for $100, 000. The P& S, however, included the following provision:
Assignment/Recording . This Agreement may not be assigned or recorded by the BUYER without the prior written consent of the SELLER and any recordation by BUYER (including a recording of notice hereof) or purported assignment by BUYER in violation of this paragraph shall be considered a default by BUYER under this Agreement . . .
Patel contributed $21, 636.00 as his share of the fire insurance premium, commenced the initial phase of remodeling and construction of the Masonic Temple's unit pursuant to the above rider provision, and expended $284, 913.86 in construction costs in pursuit of this endeavor.
On September 30, 2013, the building sustained catastrophic damage due to a fire. At the time, title remained in Masonic Temple's name because the Unit 2 construction, along with permitting and licensing, prerequisites had not been achieved. Masonic Temple settled with the insurer, and received insurance proceeds as a result of the fire damage. Patel brought this action to secure a portion of the insurance proceeds and to seek specific performance of the P& S. Masonic Temple has not given Patel a portion of the insurance proceeds or completed the sale of the property to Patel because Masonic Temple will not recognize Patel's standing as the assignee.
I. Patel's Motion for Preliminary Injunction
Patel moves for a preliminary injunction, preventing Masonic Temple from marketing, transferring, selling or otherwise encumbering the property in favor of a third party until resolution of this case. To succeed upon an application for a preliminary injunction, the moving party must demonstrate the following: (1) likelihood of success on the merits; (2) irreparable harm in the absence of an injunction; and (3) the necessity of an injunction outweighs the risk of irreparable harm to the non-moving party. Packaging Indus. Grp., Inc. v. Cheney, 380 Mass. 609, 617, 405 ...