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Levine v. Aljasa Realty, LLC

Superior Court of Massachusetts, Suffolk

February 28, 2016

Marc Levine, Individually and as Trustee [1] et al. [2]
Aljasa Realty, LLC et al. [3] No. 132983

          Filed Date March 2, 2016


          Dennis J. Curran, J.

         Even the most vigorous factual disputes cannot save a claim from summary judgment if those facts are not material to a final determination of the parties' legal rights. Scholz v. Delp, 473 Mass. 242, 249, 41 N.E.3d 38 (2015). Such is the case here. In 2011, a stone retaining wall collapsed in the plaintiffs Marc Levine and Ute Groening's backyard. The defendant Merrimack Mutual Fire Insurance Company was their homeowner's insurance carrier. When the plaintiffs submitted a claim for coverage, Merrimack denied it, citing exclusions in the policy. The plaintiffs now assert this amounted to a breach of contract and violated both G.L.c. 93A and c. 176D.

         The record reveals continued disagreement among the parties as to the cause of the wall's collapse. Yet, even taking as true all of the facts alleged by the plaintiffs, their claim must fail. A plain reading of the insurance contract reveals that the damage was not covered, regardless of its cause. Therefore, the Court ALLOWS defendant Merrimack's motion for summary judgment and DENIES the plaintiffs' corresponding cross motion.


         The plaintiffs own a two-family home at 32 Mason Terrace in Brookline, Massachusetts, which they have rented to tenants since 2010. Their back door neighbors--also defendants in this suit--own property that, because of the natural topography of the land, rests at a higher elevation than the plaintiffs' backyard. A 10-foot stone retaining wall has sat on the property line between the two parcels for 100 years, abutting the rear, northerly edge of the plaintiffs' property and the rear, southerly edge of defendants Shai Gozani and Michelle Rosen's property.

         In October 2009, defendant Aljasa Realty LLC purchased that back lot (38 York Terrace) to renovate and sell it. The defendant Benjamin Abrams was the site engineer and designer on the project, and Ricky Cato acted as general contractor. In March 2010, in order to level the backyard, they installed a timber wall towards the rear property line and backfilled the space with soil. The plaintiffs claim the weight and pressure of the timber wall and additional soil overburdened the stone retaining wall, causing it to bow and crack.

         In April 2010, the plaintiffs submitted a claim for insurance coverage to the defendant Merrimack, which denied the claim. In May 2010, the plaintiffs demanded that Aljasa repair and replace the stone retaining wall, as well as remove the timber wall and added soil from the backyard of 38 York Terrace. Aljasa denied responsibility for the retaining wall's compromised structure and refused to alter construction plans. Aljasa later sold the 38 York Terrace property to the defendants Gozani and Rosen. In March 2011, the retaining wall collapsed entirely. Its materials, as well as significant amounts of dirt from behind it, spilled onto the plaintiffs' backyard and deck.

         The plaintiffs initially filed this case in December 2010. They brought a second amended complaint in March 2011, which named Gozani, Rosen, Aljasa, Abrams, and Merrimack as defendants. Count V alleges that Merrimack breached the terms of the insurance contract by refusing to provide coverage; Count VII sets forth related claims for damages under G.L.c. 93A and c. 176D; and Count VI request a declaratory judgment on the parties' rights and obligations under the terms of the insurance contract. The plaintiffs and Merrimack have filed cross motions for summary judgment on Counts V through VII. The defendant Aljasa has joined the plaintiffs in opposing Merrimack's motion. The Court held a hearing on the matter.


         I. Standard of Review

          Summary judgment is appropriate in cases without issues of material fact and when the moving party is entitled to judgment as a matter of law. Mass.R.Civ.P. 56(c); Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716, 575 N.E.2d 734 (1991). A fact is " material" only when it might affect the outcome of the suit under applicable law. Carey v. New England Organ Bank, 446 Mass. 270, 278, 843 N.E.2d 1070 (2006).

          In deciding motions for summary judgment, the court generally considers pleadings, deposition transcripts, answers to interrogatories, admissions on file, and affidavits. Mass.R.Civ.P. 56(c). The court reviews the evidence in the light most favorable to the non-moving party, but does not weigh evidence, assess credibility, or find facts. Attorney Gen. v. Bailey, 386 Mass. 367, 371, 436 N.E.2d 139 (1982).

         II. ...

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