Heard: February 8, 2019.
action commenced in the Superior Court Department on August
22, 2016. A motion to dismiss was heard by Heidi E. Brieger,
J., and a motion to amend the complaint was heard by her.
G. Calabrese for the plaintiff.
A. Brown (Andrew G. Fanno also present) for the defendant.
Present: Green, C.J., Agnes, & Desmond, JJ.
appeal arises out of actions taken by the defendant, the city
of Chelsea (city), to order the demolition of a dangerous and
unsafe building. General Laws c. 143, § 6, requires
local building inspectors to inspect any unsafe structure
that is reported to them or of which they become aware, and
to notify property owners of steps they must take "to
remove [the structure] or make it safe." If an owner
fails to respond to proper notice within the required
timeframe, the municipality is authorized to demolish the
unsafe structure. G. L. c. 143, §§ 7 &
case before us, the plaintiff, Rocco Vigorito, to whom the
relevant property had been sold after demolition had been
ordered, appeals from a Superior Court judgment entered after
the allowance of the city's motion to dismiss under Mass.
R. Civ. P. 12 (b) (6), 365 Mass. 754 (1974), and the denial
of Vigorito's cross motion for leave to file a
supplemental verified complaint. For the following reasons,
structure involved in this case is an abandoned and
deteriorating former gas station located at 553-A Washington
Avenue, Chelsea. On September 17, 2015, the city issued an
order to demolish or make safe, pursuant to G. L. c. 143,
§ 6, to seven "Owner(s)/Potential Interested
Parties" (the estate), the then-owners of the
property. No notice was sent to Vigorito, who did
not have an ownership interest in the property at that time.
Approximately nine months later, on or around June 9, 2016,
the estate entered into a purchase and sale agreement with
Vigorito for the conveyance of the property, including the
former gas station. On August 4, 2016, the estate conveyed
the property to Vigorito by deed, which was recorded in the
Suffolk Registry of Deeds on August 8.
on or about August 8, 2016, the estate brought an action to
enjoin the city's demolition of the structure, believing
it would interfere with the impending sale to Vigorito (who
was not a party to that action). That action was dismissed
with prejudice by stipulation on or around August 15. On
August 18, 2016, the city served Vigorito with a copy of the
September 2015 notice to demolish.
filed this action in Superior Court on August 22,
2016. He also filed a motion for an ex parte
temporary restraining order on August 22 and an emergency
motion for injunctive relief on August 23. Both motions were
denied following a hearing on August 24, and the city
demolished the structure the following day. Vigorito took no
additional action. Nearly eleven months later, on July 11,
2017, the city filed a motion to dismiss for failure to state
a claim upon which relief could be granted, arguing that
Vigorito's claims were rendered moot with the demolition
of the structure.Vigorito then filed a cross motion for
leave to file a supplemental verified complaint on July 14,
2017, adding new claims for relief including, for the first
time, a claim for monetary relief. Following a hearing on
September 28, 2017, the judge allowed the city's motion
to dismiss, denied Vigorito's motion for leave to file a
supplemental verified complaint, and dismissed his verified
complaint on October 4, 2017.
appeal, Vigorito argues that the judge erred in dismissing
his verified complaint. In reviewing a decision dismissing a
complaint under rule 12 (b) (6), we accept all allegations as
true, and draw all reasonable inferences in the
plaintiff's favor. See, e.g., Blank v.
Chelmsford Ob/Gyn, P.C., 420 Mass. 404, 407 (1995). To
survive a motion to dismiss, the factual allegations must
plausibly suggest an entitlement to relief. See