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Mastroianni v. Sullivan

Superior Court of Massachusetts, Middlesex

June 7, 2016

HELEN MASTROIANNI
v.
PAUL SULLIVAN & another [1]

          MEMORANDUM OF DECISION AND ORDER ON PLAINTIFF'S MOTION FOR ISSUANCE OF AN EXECUTION

          Maynard M. Kirpalani, Justice

         The plaintiff Helen Mastroianni (" Mastroianni") commenced this action against defendants Paul Sullivan (" Sullivan") and John J. McKenna[2] for their alleged misconduct in a real estate transaction. Sullivan had previously pleaded guilty to one count of larceny by check over $250 (G.L. c. 266, § 30(1), § 37), arising out of that same real estate transaction (" criminal action").[3] In February 2014, after mediating their civil dispute, Mastroianni and Sullivan entered into an Agreement for Judgment (" Agreement") pursuant to which Sullivan was to make payments to Mastroianni. The Agreement entitles Mastroianni to file for the issuance of an execution, and this case is before the court on Mastroianni's motion for the issuance of an execution under G.L. c. 235 § 19. For the following reasons, Mastroianni's motion is ALLOWED.

         BACKGROUND

         I. The Criminal Action

         In 2010, Sullivan was charged with one count of larceny by check over $250. Sullivan pleaded guilty in October 2011, at which time he was sentenced to one year in the house of correction, and five years of probation; his probation conditions included, in pertinent part, making restitution to Mastroianni in the amount of $35, 000. According to the Probation Department, as of the date of Mastroianni's motion, the amount remaining on Sullivan's restitution was $11, 640.

         II. The Agreement for Judgment

         As noted, Mastroianni brought this civil action against Sullivan to recover money damages for Sullivan's alleged misconduct in the real estate transaction that had been the basis of the criminal action. On February 28, 2014, Mastroianni and Sullivan settled their civil dispute by entering into the Agreement for Judgment. In the Agreement, Mastroianni and Sullivan agreed to:

" enter into, and file with the Middlesex Superior Court, an Agreement for Judgment in favor of Helen Mastroianni in the sum of Fifty Thousand Dollars $50, 000. Helen Mastroianni shall file for the issuance of an execution. Helen Mastroianni shall take no actions to collect on the judgment and/or the execution, until and unless Paul Sullivan defaults on any of [the] required payments and obligations set forth herein."

         The parties filed the Agreement with this court on April 30, 2014. Mastroianni did not file for the issuance of an execution at that time.

         The Agreement set forth Sullivan's required payments to Mastroianni, both to Mastroianni directly and through the Probation Department:

" Paul Sullivan shall make payments to Helen Mastroianni, and shall comply with the following obligations, as follows:
(a) The sum of $3, 000.00, on or before March 17, 2014;
(b) The sum of $1, 000.00, on or before April 17, 2014;
(c) Paul Sullivan shall continue to timely pay the monthly payments of $583.33 to the Superior Court Probation Department, until he completes payment of the $35, 000 of restitution to Helen Mastroianni ordered by the Middlesex Superior Court in its disposition of the criminal action . . . . The parties acknowledge that, according to . . . the Superior Court Probation Department . . . [as of] November 15, 2013, Paul Sullivan ...

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