LEO J. MOTSIS, trustee, 
MING'S SUPERMARKET, INC.
Heard: July 12, 2019.
ACTION commenced in the Superior Court Department on August
25, 2015. Summary Process. Complaint filed in the Superior
Court Department on November 22, 2016.
consolidation, the case was tried before Paul D. Wilson, J.,
and a motion for a new trial was considered by him.
Alan Curhan for the plaintiff.
E. Gentilli for the defendant.
case presents the question whether a lessor's material
breach of a commercial lease permits the lessee both to
recover lost profits due to lost use of the premises and to
obtain an order for specific performance of the lease
provision requiring the lessor to make structural repairs.
After a Superior Court jury trial and the judge's
resolution of the parties' G. L. c. 93A claims, a
judgment awarding both forms of relief entered for the
lessee, the defendant and plaintiff in counterclaim,
Ming's Supermarket, Inc. (Ming's), against the
lessor, the plaintiff and defendant in counterclaim, Leo J.
Motsis, as trustee of a realty trust (Motsis). We conclude
that, in the circumstances of this case, such relief was
proper. We also reject Motsis's challenge to the
judge's findings in favor of Ming's under G. L. c.
93A, and we see no merit in Motsis's various claims of
trial error. We thus affirm the judgment.
jury could have found that Motsis owned the premises in
question, a four-story warehouse on East Berkeley Street in
Boston. Ming's operated a specialty supermarket, selling
Asian food, on Washington Street in Boston; the rear portion
of the supermarket building connected directly to the
warehouse. In 1999, the parties signed a lease of the
premises to Ming's for a term of ten years and five
months, effective January 1, 2000, with two extension options
of ten years each.
lease provided, with exceptions not relevant here, that
Motsis was "responsible for making all structural
repairs and replacements to the foundation, walls and roof of
the building on the leased premises. The cost of such
structural repairs and replacements will be charged to
[Ming's] as additional rent if they are necessitated by
the fault or negligence of [Ming's] . . . ." Other
repairs and maintenance were Ming's responsibility. The
lease also provided that if a "casualty . . . renders
the leased premises substantially unsuitable for their
intended use, a just and proportionate abatement of rent
shall be made, and [Ming's] may elect to terminate this
lease" if certain conditions were met. The lease
required that in any situation where Motsis's consent was
required, Motsis could not unreasonably withhold or delay it.
Finally, the lease gave Ming's a right of first refusal
if Motsis received any offers to purchase the premises.
premises had previously been used to store and repair motor
vehicles, and the city had issued a permit for that purpose.
intended to use the space to store food and grocery items.
That use was not allowed under the existing permit and,
because of zoning regulations, required what the parties
refer to as a conditional use permit from the city's
zoning board of appeals.  Precisely when Ming's became aware
that it needed such a permit was an issue at trial.
Nevertheless, even without that permit, Ming's used the
premises for food and grocery storage into 2010 and, under a
lease extension, until early 2015.
February 2015, a sprinkler pipe froze and burst which, among
other things, led the city's inspectional services
division (ISD) to pay a visit. ISD issued citations for
numerous building code violations, including unsafe
structural conditions such as a fractured fourth-floor
ceiling with delaminating concrete, a fracturing concrete
beam, and fractures in the staircases.  ISD also found
violations concerning the mechanical systems, elevators, and
sprinklers. Finally, ISD issued a citation for failure to
have a permit to use the premises for food storage. ISD told
the administrative manager of Ming's that Ming's
could not use the building because of its structural problems
and the lack of a proper permit.
moved its stored food and grocery supplies out of the
premises but continued to pay rent through April 2015.
Ming's made some of the internal repairs, but took the
position that the elevator repairs could not be completed
until the premises were made structurally sound. Ming's
and Motsis both understood that Ming's could not apply
for the conditional use permit until the structural repairs,
or at least the plans for such repairs, were complete.
Ming's needed Motsis's cooperation in the permit
application process. Ming's asked Motsis to make the
structural repairs (their cost was later estimated at
approximately $500,000), but Motsis did not do so, asserting
that at least some of them were the responsibility of
stopped paying rent in May 2015,  because it could not use the
premises, Motsis was not making the structural repairs,
and Ming's could not yet seek the conditional use permit.
In August 2015, Ming's agreed to undertake the permit
application process if the parties could cooperate to resolve
the repair issues. Ming's stated, "If on the other
hand the owner wants [Ming's] out and will attempt to
terminate the lease at all costs, then we might as well know
that now." Motsis replied that he would not allow
Ming's back on the premises until Ming's paid for the
structural damage it allegedly had caused, obtained the
permit, and paid all back rent. Motsis then commenced this
action in the Superior Court.
complaint  asserted material violations of the lease,
breach of contract, and a variety of other claims; Motsis
requested damages and declaratory relief. Motsis's
theory, stated briefly, was that Ming's had stopped
paying rent in order to pressure Motsis either to sell the
premises to Ming's at below-market value or to buy out
the lease. Motsis sought a declaration that the violations by
Ming's rendered the lease of no further effect.
counterclaimed for breach of the lease, breach of the implied
covenant of good faith and fair dealing, and violations of G.
L. c. 93A. As relief, Ming's sought damages (including
lost profits from decreased sales), a declaration that it had
been constructively evicted and thus had no duty to pay rent,
and an order for specific performance of the lease provisions
requiring Motsis to make structural repairs and to cooperate
with Ming's in obtaining a conditional use permit.
essence, Ming's proceeded on the theory that, because the
rent specified in the lease was substantially below market