Sarah S. Kim
S. Kim, pro se.
S. Kim appeals from a judgment of a single justice of this
court denying her petition for relief pursuant to G. L. c.
211, § 3, and her complaint
for relief in the nature of certiorari and mandamus pursuant
to G. L. c. 249, § § 4 and 5 (collectively,
petition). We affirm.
November, 2012, the respondent, Lloyd Rosenthal, commenced a
summary process action against Kim in the District Court.
Kim's condominium unit had been foreclosed upon, and
Rosenthal was the new owner. The court ruled in
Rosenthal's [45 N.E.3d 1282] favor, and Kim appealed to
the Appellate Division of the District Court, which affirmed
the judgment. Kim then filed her petition in the county
court, stating that she was seeking relief from the Appellate
Division decision and also that she " prays the
Honorable Court to review and correct errors made in the
Superior Court (for Suffolk County); the Land Court, and the
Appeals Court, resulting in unwarranted loss of [her] two
real properties." The single justice denied the petition
without a hearing.
crux of Kim's argument, as best we can discern from the
record before us, appears to be that the attorney or
attorneys who represented the plaintiff in the proceedings
that led to the foreclosure of Kim's condominium
committed " egregious ... fraud[ ]." In Kim's
view, that purported fraud rendered void any judgments that
led to the current situation. Essentially, she appears to be
arguing that the judgment against her in the summary process
action is void because the underlying foreclosure is void.
under G. L. c. 211, § 3, is properly denied " where
there are adequate and effective routes ... by which the
petitioning party may seek relief." Greco v.
Plymouth Sav. Bank, 423 Mass. 1019, 1019, 672 N.E.2d 535
(1996). Similarly, " [r]elief in the nature of mandamus
is extraordinary, and is granted in the discretion of the
court where no other relief is available." Murray v.
Commonwealth, 447 Mass. 1010, 1010, 852 N.E.2d 66
(2006), citing Forte v. Commonwealth, 429 Mass.
1019, 1020, 711 N.E.2d 880 (1999). See Picciotto v.
Appeals Court (No. 2), 457 Mass. 1002, 1002, 927 N.E.2d
998, cert. denied, 562 U.S. 1044, 131 S.Ct. 598, 178 L.Ed.2d
435 (2010), quoting G. L. c. 249, § 4 (" certiorari
relief designed to correct errors 'not otherwise
reviewable by motion or by appeal'" ). The
petitioner bears the burden to allege and demonstrate the
absence or inadequacy of other remedies. See, e.g.,
Russell v. Nichols, 434 Mass. 1015, 1016, 750 N.E.2d
1008 (2001). Kim has not met, and cannot meet, this burden
where she had another adequate and effective avenue for
seeking relief: she could have appealed from the Appellate
Division decision to the Appeals Court. Indeed, Kim appealed
from some of the judgments that preceded the summary process
action, and to the extent that the issues she raises here
relate to those proceedings, she had an opportunity to raise
those issues in the earlier appeals. See note 2,
single justice did not err or abuse his discretion in denying
The Appellate Division of the District
Court, Northern District, was also named as a respondent. The
court is a nominal party only. S.J.C. Rule 2:22, 422 Mass.
1302 (1996). Similarly, the numerous other individuals and
organizations named as respondents who were not parties to
the summary process action from which this proceeding stems
are not proper respondents.
The proceedings that led, eventually, to
the summary process action began in 2007, when the trustees
of the condominium trust commenced an action to establish a
lien on Sarah Kim's unit for unpaid common
expenses. See Trustees of Mill Creek Condominium Trust v.
Kim, 77 Mass.App.Ct. 1114, 931 N.E.2d 68 (2010). After
Kim's unit was subsequently foreclosed upon, the trustees
properly secured a new certificate of title as required by
the law governing ...