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Vigorito v. City of Chelsea

Appeals Court of Massachusetts, Suffolk

May 9, 2019

ROCCO VIGORITO
v.
CITY OF CHELSEA.

          Heard: February 8, 2019.

          Civil 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.

          Peter G. Calabrese for the plaintiff.

          Peter A. Brown (Andrew G. Fanno also present) for the defendant.

          Present: Green, C.J., Agnes, & Desmond, JJ.

          AGNES, J.

         This 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 & 9.[1]

         In the 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, we affirm.

         Background.

         The 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.[2] 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.

         Meanwhile, 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.

         Vigorito filed this action in Superior Court on August 22, 2016.[3] 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.[4]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.

         Discussion.

         On 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 ...


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