Superior Court of Massachusetts, Suffolk, Business Litigation Session
MINICHIELLO BROS., INC. et al.
Joseph MARCHESE, Jr. et al.
MEMORANDUM AND ORDER ON DEFENDANTSâ MOTION FOR
PARTIAL SUMMARY JUDGMENT ON COUNT XII OF THEIR
P. Leibensperger, Justice
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
Tenantâs 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.
motion concerns Count XII of the Landlordâs 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, Â§ 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.
following facts are taken from the partiesâ 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.
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.
parties had discussed expanding the Tenantâs 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. in another action, the Tenant "
handled the complete development of the property from start
to finish ..."
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, weâve
been together since 2006. We donât 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 " itâs 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
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
Landlordâs 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
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
2015, the Tenant missed a portion of its rent
payment. 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
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 Landlordâs contentions concerning the Tenantâs
compliance with environmental obligations until after it has
had the opportunity to take discovery, including a
deposition, of the Landlordâs expert. Pursuant to the
existing scheduling order, the parties have until March 31,
2018 to complete expert discovery.
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., ...