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Minichiello Bros., Inc. v. Marchese

Superior Court of Massachusetts, Suffolk, Business Litigation Session

November 27, 2017

MINICHIELLO BROS., INC. et al.
v.
Joseph MARCHESE, Jr. et al.

          MEMORANDUM AND ORDER ON DEFENDANTS’ MOTION FOR PARTIAL SUMMARY JUDGMENT ON COUNT XII OF THEIR COUNTERCLAIMS

          Edward P. Leibensperger, Justice

         The parties are engaged in litigation with respect to four different parcels of real estate located in Boston and Everett, Massachusetts. In general, the defendant, Joseph Marchese, Jr., controls ownership of the parcels through various business entities. The plaintiff, Minichiello Bros., Inc., is a tenant conducting commercial activity on the parcels. For ease of reference, I will reference plaintiffs as the Tenant and defendants as the Landlord, with more specific identification used as necessary. The Tenant commenced this litigation claiming that it possessed a right to purchase some of the parcels and that the Landlord was interfering with that right and was otherwise disrupting the Tenant’s business of scrap metal recycling by wrongful acts. The Tenant sought specific performance and damages for breach of contract, fraud, violation of G.L.c. 93A and other claims. The Landlord responded by denying all claims of wrongdoing and by asserting counterclaims against the Tenant. The counterclaims are contained in 23 counts. The counterclaims allege, among other things, breach of contract, right to possession, indemnification, etc.[1]

         This motion concerns Count XII of the Landlord’s counterclaim. That count is a claim for possession of what is called " the Second Street Property." The Landlord alleges that the Tenant occupies that parcel pursuant to an oral lease. Because it is an oral lease, the Tenant is a tenant at will. The Landlord claims that it has taken the proper steps to terminate the at will tenancy. As a result, the Landlord seeks possession of the property pursuant to G.L.c. 239, § 1, the summary process statute. By this motion for summary judgment on Count XII, the Landlord contends that there are no material factual disputes and that it is entitled to possession as a matter of law.

         FACTS

         The following facts are taken from the parties’ Statement of Undisputed Material Facts (" SUMF"). The facts referenced appear to be undisputed, although the SUMF contains a plethora of stated facts propounded by both sides that are, " disputed" by the other side. Some of those disputed facts are material, as discussed below.

         On February 19, 2009, the Tenant entered into a written, commercial lease for property located at 0 Terminal Street in Everett. From that location, the Tenant operated a scrap metal business. Two years later, on May 24, 2011, the Landlord, specifically, Marchese Realty, LLC, purchased the property immediately adjacent to the 0 Terminal Street property. The address of this property is 413-421 Second Street in Everett. This property, 413-421 Second Street, is referred to as the Second Street Property. The Second Street Property is the subject property of Count XII of the counterclaim, seeking possession by the Landlord.

         The parties had discussed expanding the Tenant’s scrap metal business to the Second Street Property prior to the purchase of the property. That the Tenant would occupy the Second Street Property, expand its scrap metal business onto the property, and undertake improvements on the Second Street Property were motivating factors for the Landlord to purchase the property. After the purchase of the Second Street Property by the Landlord, the Tenant moved onto the property. According to the sworn testimony in 2012 of Joseph Marchese Jr.[2] in another action, the Tenant " handled the complete development of the property from start to finish ..."

         The Tenant and the Landlord reached an oral agreement for the Tenant to occupy the Second Street Property. No written lease was executed. When the Tenant asked (at an unspecified date) for a written lease, Marchese replied " Frank, we’ve been together since 2006. We don’t have any problems with each other." Marchese also testified that the term for the occupation of the Second Street Property was the same ten-year period as set forth in the lease of the 0 Terminal Street property. With respect to the lease for the Second Street Property, Marchese testified " it’s a continuation onto the other one." According to the Affidavit of Joseph Marchese, Jr., submitted in support of this motion for summary judgment, the Tenant " was to occupy the property initially as a tenant at will, though we contemplated that we would eventually attempt to negotiate a written lease." The Tenant, by its principal, Frank Minichiello, Jr., avers in answers to interrogatories in another litigation that the oral agreement reached with the Landlord was that the Tenant occupied the Second Street Property " pursuant to the lease for 0 Terminal Street." According to Minichiello, Marchese told him that the lease at 0 Terminal Street " protected" the Tenant. The Landlord requested the Tenant to pay additional rent for the Second Street Property, which the Tenant paid.

         When the Landlord purchased the Second Street Property in May 2011, the property was known to be a site listed with the Massachusetts Department of Environmental Protection (" MassDEP"). Environmental response actions had been conducted on the Second Street Property prior to the Landlord’s purchase, however, the actions represented only a temporary solution. Environmental restrictions were imposed on the site. On May 24, 2011, the day the Landlord purchased the property, the Tenant entered into an Environmental Indemnity and Release From Liability Agreement (Environmental Agreement) with the Landlord concerning the Second Street Property. The Environmental Agreement obligated the Tenant " to assume all responsibilities and obligations as to remediation of the environmental conditions at the Property ..." No time deadline for the remediation was imposed by the Agreement. The document referenced the Tenant as the " lessee." Further, pursuant to the Environmental Agreement, the Tenant agreed to release the Landlord from all liabilities for environmental conditions on the property and to indemnify the Landlord for all losses arising from the property.

         In connection with the Environmental Agreement, the Tenant engaged a Licensed Site Professional to provide advice and services. The Tenant performed site work at the Second Street Property in the summer of 2011. The Tenant received invoices for the 2011 site work in the amount of approximately $250, 000. The Tenant states in answers to interrogatories that " while the work was being done" by the Tenant as it took on responsibility for remediating the property, there were oral discussion with Landlord regarding the cost of remediation. " When the property was ready for use, [Tenant] questioned [Landlord] about the need for a new lease for the Premises. [Landlord] stated to [Tenant] that no new lease was needed because the properties had been tied together. [Landlord] told [Tenant] that he would be protected under the terms of the existing 0 Terminal St. Lease." In reliance, the Tenant continued to occupy the property, pay rent, and undertake remedial efforts with respect to the environmental issues.

         In 2015, the Tenant missed a portion of its rent payment.[3] The Landlord and the Tenant began to engage in efforts to negotiate a written lease for the Second Street Property. The negotiations were unsuccessful. By the summer of 2016, the relationship between the Landlord and the Tenant had deteriorated substantially. The Landlord served the Tenant with two Notices of Termination of Tenancy at Will, one dated August 1, 2016 and the other dated November 22, 2016. The Landlord commenced a summary process action in Malden District Court. The action was dismissed, upon motion of the Tenant, in favor of the present action which had been filed previously.

         The Landlord asserts that the environmental work performed by the Tenant on the Second Street Property was inadequate and/or not in compliance with Massachusetts environmental laws and regulations. The parties submit over thirty (30) separate statements in the SUMF concerning the environmental remediation and the legal obligations to perform the work. All such statements are " Disputed." The statements from the Landlord include references to opinions from an environmental expert engaged by the Landlord. The Tenant responds that it has engaged an expert " who is working on the site and who is focused on improving the limited compliance issues" that have been identified. The Tenant also moves under Mass.R.Civ.P. 56(f) to delay consideration of the Landlord’s contentions concerning the Tenant’s compliance with environmental obligations until after it has had the opportunity to take discovery, including a deposition, of the Landlord’s expert. Pursuant to the existing scheduling order, the parties have until March 31, 2018 to complete expert discovery.

         DISCUSSION

         In evaluating a motion for summary judgment the court " must ... draw all reasonable inferences" from the evidence presented " in favor of the nonmoving party." Godfrey v. Globe Newspaper Co., Inc.,457 Mass. 113, 119 (2010). A request for summary judgment must be denied where a claim turns on disputed issues of fact or on disputed inferences from admitted facts. See Molly A. v. Commissioner of Dept. of Mental Retardation, 69 Mass.App.Ct. 267, 284 (2007) (" summary judgment cannot be granted if the evidence properly before the motion judge reveals a genuine issue of disputed material fact"); Flesner v. Technical Communications Corp., ...


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