Housing Court Cases - Judge Jeffrey Winik, Boston Division

HOUSING COURT

KERMIT HAMILTON, JR. AND SHIRLEY BROWN VS. DUSTIN THAI, JULIE THAI, HO NGUYEN, AND MARYANNE DAO

BOSTON DIVISION CIVIL ACTION

Docket # 04-CV-00191

Parties: KERMIT HAMILTON, JR. AND SHIRLEY BROWN VS. DUSTIN THAI, JULIE THAI, HO NGUYEN, AND MARYANNE DAO

Judge: /s/ JEFFREY M. WINIK

FIRST JUSTICE

Date: January 5, 2007

ORDER

This matter is before the Court on the plaintiffs’ Motion to Dismiss and/or For Judgment on the Pleadings on Defendants’ Counterclaims for Deceit, Unjust Enrichment, Misrepresentation and Abuse of Process. The plaintiffs are seeking the dismissal of the defendants’ deceit (Count Two), misrepresentation (Count Four) and abuse of process (Count Five) counterclaims pursuant to G.L. c. 231, s. 59H (Anti-SLAPP law). Alternatively, the plaintiffs are seeking judgment on the pleadings pursuant to M.R.Civ.P., Rule 12(c) with respect to the defendants’ deceit, misrepresentation and unjust enrichment (Count Three) counterclaims. Finally, the plaintiffs are seeking the dismissal of the defendants’ deceit and misrepresentation counterclaims for want of specificity.

The defendants did not file a written opposition or appear at the motion hearing on January 3, 2007.

Special Motion to Dismiss Pursuant to G.L. c. 231, s. 59H. The plaintiffs allege in their amended complaint against the defendants that: they occupied 92 Maple Street, Dorchester (“the premises”) as residential tenants; the defendants were their landlords; the plaintiffs stored their personal property (listed in p.9 of the Amended Complaint) in the basement of 92 Maple Street; that the defendants wrongfully seized and discarded that personal property. Based upon these

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facts the plaintiffs asserted claims against the defendants for conversion, interference with quiet enjoyment, retaliation and infliction of emotional distress.

The defendants filed a written answer in which they denied the factual allegations and legal claims set forth in the plaintiffs’ amended complaint. The defendants in their answer asserted six counterclaims against the plaintiffs.[1] The second counterclaim, common law deceit, alleges that the plaintiffs never owned,

possessed or controlled the personal property they claim the defendants’ wrongfully seized and discarded. The fourth counterclaim, common law misrepresentation, alleges that the plaintiffs intentionally misrepresented to the Court that they owned that personal property. The fifth counterclaim, abuse of process, alleges that the plaintiffs have no legitimate claims against the defendants and filed their amended complaint “solely as a means to harass and injure defendants.” In essence, the defendants’ second, fourth and fifth counterclaims rest entirely on the assertion that the allegations set forth in the plaintiffs’ amended complaint are false. The plaintiffs filed an answer denying the allegations set forth in the counterclaims.

G.L. c. 231, s. 59H provides in relevant part that,

In any case in which a party asserts that the . . . counterclaims .. . against said party are based on said party’s exercise of its right of petition under the constitution of the United States, said party may bring a special motion to dismiss. The court shall grant such special motion, unless the party against whom such special motion is made shows that: (1) the moving party’s exercise of its right to petition was devoid of any reasonable factual support or any arguable basis in law and (2) the moving party’s acts caused actual injury to the responding party.

To prevail on a special motion to dismiss, the moving party “must make a threshold showing through special pleadings and affidavits that the claim is `based on’ the special movant’s protected petitioning activities alone and has no other `substantial basis.’ Adams v. Whitman, 62 Mass. App. Ct. 850, 852-3 (2005), citing to Duracraft Corp. v. Holmes Prods. Corp., 427 Mass. 156, 167-8 (1998). If the movant makes this threshold showing, the burden shifts to the non-moving party to show by a preponderance of the evidence based on the pleadings and

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[1] The plaintiffs are not seeking judgment on or the dismissal of the defendants’ trespass counterclaim (Count One), or their intentional infliction of emotional distress counterclaim (Count Six).

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affidavits that the movant’s claims are “devoid of any reasonable factual support or any arguable basis in law” and that the movant’s acts “caused actual injury” to the non-moving party. Id.

First, it is obvious that by asserting claims in this civil action for damages arising from the loss of their property the plaintiffs are engaging in petitioning activity within the meaning of G.L. c. 231, s. 59H. Second, the plaintiffs have made a

threshold showing that the defendants’ deceit, misrepresentation and abuse of process counterclaims are solely based on the assertions set forth in p.9 of the plaintiffs’ petition to the Court (the amended complaint) that the defendants wrongfully seized and discarded the plaintiffs’ personal property. The defendants have not alleged that the plaintiffs engaged in any other conduct or activity that would constitute deceit, misrepresentation or abuse of process. Finally, the defendants (who have not filed any written opposition to the special motion) have not shown by a preponderance of the evidence that the plaintiffs’ damages claims are “devoid of any reasonable factual support or any arguable basis in law” and that the plaintiffs’ acts or conduct caused the defendants any actual injury.

For these reasons, the plaintiffs are entitled to dismissal of the defendants’ deceit (Count Two), misrepresentation (Count Four) and abuse of process (Count Five) counterclaims upon special motion to dismiss pursuant to G.L. c. 231, s. 59H.

Motion for Judgment on the Pleadings. The plaintiffs are entitled to judgment on the pleadings pursuant to M.R.Civ.P., Rule 12(c) with respect to the defendants’ deceit, misrepresentation and unjust enrichment counterclaims.[2]

To state a claim for common law misrepresentation, the defendants must allege that the plaintiffs (1) made a false statement of material fact, (2) to induce the defendants to act, (3) that the defendants relied on the false statement to their detriment, and (4) the defendants were damaged. See, McEneany v. Chestnut Hill Realty Corp., 38 Mass. App. Ct. 573, 575 (1995). Here, the defendants have not alleged that any false statements the plaintiffs may have made were intended to induce the defendants to act in any manner. Further, and importantly, the defendants have not alleged that they relied on such false statement to their detriment. The defendants allege only that such false statements “were intentional and made for the purpose of harassing and causing injury to defendants.” p.17 of counterclaim.

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[2] The plaintiffs’ motion to dismiss the defendants’ deceit and misrepresentation counterclaims pursuant to M.R.Civ.P., Rule 9 is denied.

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A claim for common law deceit requires proof that (1) the defendants made a misrepresentation of fact, (2) with knowledge that it was untrue, (3) with the intention to induce the plaintiffs to act on that misrepresentation, (4) that the plaintiffs did act based upon the misrepresentation, and (5) were damaged. Graphic Arts Finishers, Inc. v. Boston Redevelopment Authority, 357 Mass. 40, 44 (1970); Equipment & Systems for Industry, Inc. v. Northmeadows Construction, Inc., 59 Mass. App. Ct. 931 (2003). Here, the defendants have not alleged that the defendants acted or changed their position based upon any misrepresentation of fact made by the plaintiffs. See, p.5 – 9 of counterclaim.

Finally, with respect to the unjust enrichment counterclaim, the defendants have failed to allege that the plaintiffs have been unjustly enriched at the expense of the defendants. The gravaman of their claim is that the plaintiffs never owned the property the plaintiffs’ claim was wrongfully discarded. Simply, if the plaintiffs prove their claim then the damages awarded cannot as a matter of law constitute unjust enrichment. If the plaintiffs fail to prove their claim then they will be awarded nothing. The unjust enrichment claim fails because the plaintiffs have not as yet received anything of value at the defendants’ expense.

IT IS ORDERED that:

The plaintiffs’ special motion to dismiss the defendants’ deceit (Count Two), misrepresentation (Count Four) and abuse of process (Count Five) counterclaims is ALLOWED pursuant to G.L. c. 231, s. 59H. Within ten (10) days from the date of this Order, the plaintiffs’ counsel may file with this Court a Motion for Counsel Fees, Costs and Expenses pursuant to G.L. c. 231, s. 59H and in accordance with the procedure prescribed in Yorke Mgmt. v. Castro, 406 Mass. 17, 20 (1989).

The plaintiffs’ motion for judgment on the pleadings is ALLOWED as to the defendants’ deceit (Count Two), misrepresentation (Count Four) and unjust enrichment (Count Three) counterclaims.

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cc: David Grossman, Esq.

Esme Caramello, Esq.

Legal Services Center

122 Boylston Street

Jamaica Plain, MA 02130

Anthony M. Lombardi, Esq.

Law Office of Robert L. Allen, Jr. LLP

300 Washington Street, 2nd Floor

Brookline, MA 02445

Roland A. H. Pham, Esq. Pham & Associates

1453 Dorchester Avenue

Dorchester, MA 02122

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End Of Decision

HOUSING COURT

CHRISTINE NGUYEN, by her mother and next friend, MARILYNN NGUYEN VS. SUPERIOR HOME INSPECTIONS, Defendant/Third-Party Plaintiff VS. KINH VAN PRAM, KHI THI PRAM, THONG VAN NGUYEN AND KIMSINH T. HOANG, Third-Party Defendants

BOSTON DIVISION

Docket # CIVIL ACTION NO. 05-CV-00442

Parties: CHRISTINE NGUYEN, by her mother and next friend, MARILYNN NGUYEN VS. SUPERIOR HOME INSPECTIONS, Defendant/Third-Party Plaintiff VS. KINH VAN PRAM, KHI THI PRAM, THONG VAN NGUYEN AND KIMSINH T. HOANG, Third-Party Defendants

Judge: /s/Jeffrey M. Winik

First Justice

Date: February 15, 2007

MEMORANDUM OF DECISION ON DEFENDANT’S MOTION FOR SUMMARY

JUDGMENT, AND ORDER FOR ENTRY OF JUDGMENT

This matter is before the Court on the defendant’s Motion for Summary Judgment. The defendant has moved for summary judgment on all claims set forth in the plaintiff’s Complaint. The defendant filed a supporting memorandum of law, affidavit and exhibits along with its motion. The plaintiff filed a written opposition to the motion and a supplemental opposition, both with supporting exhibits.[1] At the time of the purportedly negligent lead

inspection the building was owned by the third-party defendants. The minor plaintiff’s parents were not tenants living at the building at that time. The minor plaintiff was not born until more than four years after the lead inspection. In her complaint, the minor plaintiff asserts claims against the defendant for negligence (First Claim), breach of warranty (Second Claim) and violation of G.L. c. 93A (Third and Fourth Claims). The defendant denies the allegations.[2]

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[1] The minor plaintiff’s mother, Marilynn Nguyen, is her next friend.

[2] The defendant filed a third-party complaint seeking contribution from the persons who owned the building at the time the defendant performed the lead inspection. None of the third-party defendants have appeared or filed an answer to the third-party complaint.

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For the reasons stated in this memorandum, the defendant’s motion for summary judgment is ALLOWED as to all claims set forth in the plaintiffs complaint.

Undisputed Facts

The following facts are not in dispute.

The residential property at issue is located at 18 Sudan Street, in the Dorchester section of Boston (“building”). The three-story building contains three apartments, one on each floor. The third-party defendants owned the building in June 1988.[3] In 1988, Henry J. Leary was the sole owner and proprietor of a business known as Superior Home Inspections.[4] In June 1988, one of the third-party defendants hired Leary to conduct a lead paint inspection at the building. The only evidence in the summary judgment record as to the scope and conduct of the inspection is the undisputed statements of Leary set forth in his affidavit dated March 8, 2006. On June 6, 1988, Leary conducted a spot lead inspection at the building. The building was vacant of tenants. Workers were engaged in repair or renovation work on the second and third floors. The owner, third-party defendant Thong Van Nguyen, was present at the time of the inspection. Leary inspected the exterior of the building and the first floor apartment. He found numerous traces of lead paint on the exterior windowsills and baseboards in the first floor apartment. When Leary started up the stairs to the second floor, the owner told Leary that he was having the second and third floors sanded and painted, and therefore it was not necessary to inspect them. Leary observed men working on the second floor. At Nguyen’s direction, Leary did not inspect the second or third floor of the building. Before he left the property, Leary told Nguyen that there was lead paint in the building and recommended to him that he correct that unlawful condition. Leary prepared a handwritten one-page report that he gave to Nguyen. The report is consistent with what Leary saw and what he told Nguyen. The report states that there was lead paint found on the exterior

and first floor of the building. The report states that on the second and third floors all painted surfaces were sanded down to “wood & painting.” Since the third-party defendants told Leary not to inspect the upper two floors, the report does not address whether lead was present on the second or third floors. Consistent with the fact that he found

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[3] The third-party defendants are Kinh Van Pham, Khi Thi Pham, Thong Van Nguyen and Kimsinh T. Hoang.

[4] The plaintiff s complaint does not name Henry J. Leary as a defendant. The plaintiff’s claims are brought against an entity known as Superior Home Inspections. It appears that Superior Home Inspections does not exist as a person subject to suit.

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lead on the first floor (and did not inspect for lead on the second or third floors), Leary did not prepare or issue a letter of full compliance for the building under the provisions of G.L. c. 111, s. 197 (c).

Leary had no further contact with the third-party defendants or anyone else who owned or occupied the building after June 6, 1998.

The third-party defendants sold the building to Tam Van Tran and Thom Thi Tran (collectively “Tran”) sometime after Leary’s inspection in 1988. There is no evidence in the summary judgment record that the third-party defendants ever told Leary they intended to sell the building to Tran or anyone else. Tran stated in his deposition that at the request of his lending bank, he paid to have the property inspected by a structural inspector; however, Tran did not hire a lead inspector to inspect the building for lead. Tran stated that the third-party defendants had the building inspected for lead.[5] There is no evidence in the summary judgment record that Tran ever spoke with Leary before, during or after the inspection. Tran was not present at 18 Sudan Street when Leary inspected the building. Any information Tran had regarding the status of lead paint at the building before he purchased it came from one of the third-party defendants and Leary’s one-page report. Tran stated that he read the report.[6] However, even though the report indicated there was lead in the building, Tran never contacted Leary to seek further information about his inspection. There is no evidence that after he purchased the building Tran ever hired a lead inspector to conduct a further inspection or hired a contractor to remove the lead.

There is no evidence in the summary judgment record that the third-party defendants or Tran ever requested that Leary provide a letter of full compliance for the building. There is no evidence that Tran ever requested or received a letter of full compliance for the building from a licensed lead inspector.

The plaintiffs family was not living at the building when Leary performed his inspection in June 1988. The plaintiff’s family first moved into the third-floor apartment at the building sometime after July 1, 1990. The plaintiffs family never had a landlord/tenant relationship with the third-party defendants. The

minor plaintiffs family never had any contact or communication with Leary.

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[5] Tran could not remember whether he requested that the third-party defendants inspect the building for lead.

[6] Tran works as an engineer.

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The summary judgment record shows that the minor plaintiff, Christine Nguyen, was born on July 18, 1992. This is more than four years after Leary performed his inspection of the building. The minor plaintiff lived with her family at 18 Sudan Street, Apartment 3, from July 18, 1992 until September 1994.

In July 1993, a city inspector determined that the third-floor apartment at 18 Sudan Street had lead violations. In July 1993, the minor plaintiff was first diagnosed with lead poisoning.

The minor plaintiff commenced a civil action against her landlords, Tam Van Tran and Thom Thi Tran, in 1999 (99-CV-00527).[7] She commenced a civil action against Superior Home Inspections in July 2005 (seventeen years after Leary inspected the building).

Discussion

To prevail on a summary judgment motion, the moving party must demonstrate with admissible evidence, based upon the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits, that there are no genuine issues as to any material facts, and that the moving party is entitled to a judgment as a matter of law. Mass. R. Civ. P. 56(c); Community National Bank v. Dawes, 369 Mass. 550, 553-56 (1976). Once the moving party meets its initial burden of proof, the burden shifts to the non-moving party “to show with admissible evidence the existence of a dispute as to material facts.” Godbout v. Cousens, 396 Mass. 254, 261 (1985). “A party moving for summary judgment in a case in which the opposing party will have the burden of proof at trial is entitled to summary judgment if he demonstrates, by reference to material described in Mass. R. Civ. P. 56(c), unmet by countervailing materials, that the party opposing the motion has no reasonable expectation of proving an essential element of that party’s case.” Kourouvacilis v. General Motors Corp, 410 Mass. 706, 716 (1991).

The defendant argues that there is no evidence in the summary judgment record from which a rational fact finder could conclude that he breached any duty of care owed to the third-party defendants (the first owners), Tran (the second owners) or the minor plaintiff (who was not born until more than four years from the date of the inspection). I agree.

Negligence is the failure of a person to exercise that degree of care that a reasonable person of ordinary prudence would exercise in similar circumstances. “Before liability for negligence can be imposed, there must first be a legal duty owed by the defendant to the

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[7] That case settled in June 2005.

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plaintiff, and a breach of that duty proximately resulting in injury. [citations omitted]. Whether such a duty exists is a question of law. [citations omitted].” Davis v. Westwood Group, 420 Mass. 739, 742-743 (1995).

The plaintiff argues that Leary “in failing to inspect the second and third floors of [the building], and then by providing the then buyer of the premises with a report which indicates solely that the second and third floors were `sanded down to wood and painted,’ constitutes negligence which proximately caused the minor plaintiff’s injuries as a result of lead paint poisoning.”[8]

There is no credible evidence from which a jury could reasonably find that Leary owed a duty to anyone to inspect the second and third floors of the building in June 1988. The plaintiff is incorrect that there exists any disputed issue of fact regarding what Leary was hired to do. The plaintiff points to Tran’s interrogatory answer (in 99-CV-00527) where he states that “prior to purchasing the property we asked the owners to have the property inspected for lead . . .” The hearsay statement regarding what Tran may have said to the third-party defendants (or what the third-party defendants may have said to Tran) is of no relevance in determining whether a factual issue exists as to what the third-party defendants hired Leary to do. Tran never had any contact with Leary. The undisputed evidence in the summary judgment record is that the third-party defendants hired Leary to conduct a lead inspection at 18 Sudan Street, and that during the inspection the third-party defendants instructed Leary to inspect only the first floor of the building for lead. This was because the second and third floors were being renovated with workers present at the time of the inspection. Leary inspected exactly what he was told to inspect by the property owners who hired him.

Leary’s short one page handwritten report is concise and readily understandable by any person of average intelligence. He states that he found traces of lead on the exterior and on the first floor of the building. He further states that the second and third floors were being sanded and painted (work was ongoing at the time of Leary’s inspection). There is no evidence that the third-party defendants told Leary that they were selling the building, that Tran was the prospective buyer or that his report would be given to a prospective buyer. In any event, no rational fact finder could conclude that a prospective buyer of average intelligence would

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[8] Plaintiff’s memorandum, page 3. The plaintiff misquoted the language in Leary’s report. Leary used the word “painting” not “painted.”

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reasonably rely on Leary’s one-page report for the proposition that the building did not contain unlawful amounts of lead. Most telling is the fact that neither the third-party defendants nor Tran asked Leary to prepare and issue a letter of full compliance under G.L. c. 111, s. 197 (c).[9] Finally, Leary made no written or oral representations to anyone that the building was free of any lead. Leary never issued a letter of full compliance.

The duty of care that Leary may have owed to the prospective purchaser of the building (and perhaps to that purchaser’s tenants) is measured and limited by the scope of the inspection he performed at the seller’s request. No reasonably prudent inspector in Leary’s position could be expected to have foreseen that a prospective purchaser (and the purchaser’s future unknown tenants) would conclude from the cursory statements set forth in his limited inspection report that the building was in compliance with the requirements of the statutes and regulations governing lead paint – especially since the report stated that lead was present in the building. Tran states that he received (apparently from the third-party defendants) a copy of Leary’s report. However, even though the report states that Leary found traces of lead, Tran – an engineer by training – never had the building re-inspected to determine how much lead was present. Tran never had the building de-leaded. He never obtained a letter of full compliance from a licensed lead inspector.

The undisputed evidence in the summary judgment record is that Leary told the third-party defendants that there was lead paint in the building and that they should have the lead removed. Leary complied with the duty of care he owed to the persons who hired him to conduct the inspection. He owed no greater duty to unknown prospective buyers or unknown prospective tenants.

The minor plaintiff’s family did not move into the third-floor apartment at the building until after July 1, 1990. This was more than two years after Leary inspected the building. The minor plaintiff was born more than four years after Leary’s inspection. Tran owned the building for more than four years before the minor plaintiff was born. In the intervening period, Tran did nothing to ascertain whether the building contained lead. There is nothing that connects Leary to the minor plaintiff or her family. Leary neither said nor wrote anything about the absence of lead at the building that Tran could have reasonably relied upon. Therefore, anything that Tran might have said to the minor plaintiff’s family about the absence of lead in the building cannot be

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[9] G.L. c. 111, s. 197 (c) states in relevant part, “Upon the determination of a licensed inspector that the premises fully comply with the requirements of this subsection, said inspector shall issue a letter of full compliance for said premises.”

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attributed to anything that Leary said or wrote. Under the undisputed facts set forth in this summary judgment record, Leary owed no duty of care to the prospective buyer or to the prospective buyer’s prospective tenants. Even if it was foreseeable that a

prospective owner would rely on a lead report prepared by a lead inspector at the seller’s request, and thus Leary owed a duty of care to the prospective purchaser (Tran), the undisputed evidence establishes that Leary did not breach such duty of care. Since Leary did not breach any duty of care he may have owed to Tran, it follows, a fortiori, that he did not breach any duty of care he may have owed to the prospective purchaser’s future tenants, including the minor plaintiff.

Accordingly, the defendant is entitled to summary judgment on the minor plaintiff’s negligence claim.

The minor plaintiff’s second claim alleges that she was injured as a result of the defendant’s breach of express and implied warranties in the execution of his inspection contract with the third-party defendants. The minor plaintiff claims that she was a third-party beneficiary to that contract.

A cause of action for breach of express or implied warranty under Article 2 of the Uniform Commercial Code does not lie where, as is the case here, the contract at issue involved only the rendition of personal services by the defendant to the third-party defendants. The warranty must relate to the provision of “goods” as opposed to the provisions of “personal services.” See, G.L. c. 106, s.s.s. 2-102, 2-105(1), 2-318; White v. Peabody Construction Co., Inc., 386 Mass. 121, 132 (1982); Mattoon v. City of Pittsfield, 56 Mass. App. Ct. 124, 141 (2002). The undisputed evidence in the summary judgment record establishes that Leary did not provide any “goods” under the terms of his contract with the third-party defendants. Since Leary did not provide or furnish any goods to the third-party defendants in the course of inspecting the building, the minor plaintiff cannot as a matter of law assert a claim for breach of warranty under Article 2 of the Uniform Commercial Code.

“Obligations created by contract can provide a basis for an action in tort.” O’Brien v. Christensen, 422 Mass. 281 (1986). If the minor plaintiff’s second claim is considered as a traditional negligence claim based upon Leary’s breach of the inspection contract with the third-party defendants, the legal issue is whether the minor plaintiff was an intended third-party beneficiary to that contract.

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The Supreme Judicial Court, in the case of Rae v. Air-Speed, Inc., 386 Mass. 187, 194-5 (1982), adopted the rule set forth in Section 302 of the Restatement (Second) of Contracts, with regard to intended third-party beneficiaries.[10] The rule announced by the Court in adopting Section 302 is that “when one person, for a valuable consideration, engages another, by simple contract, to do some act for the benefit of a third, the latter, who would enjoy the benefit of the act, may maintain an action for the breach of such engagement.”

To prevail on her assertion that as a third-party beneficiary she can bring a direct claim against Leary, the minor plaintiff must show that Leary and the third-party defendants intended to give her the benefit of the promised performance under the terms of the inspection contract. Anderson v. Fox Hill Village Homeowners Corporation, 424 Mass. 365, 366 (1997). The expressed intent must be clear and definite; otherwise the third-party is no more than an

incidental beneficiary without authority to assert any claims arising from the breach of the contract. Id.; see, Choate, Hall & Stewart v. SCA Servs., Inc., 378 Mass. 535, 545-547 (1979); Harvard Law Sch. Coalition for Civil Rights v. President & Fellows of Harvard College, 413 Mass. 66, 71 (1992); Plymouth Housing Authority v. Town of Plymouth, 401 Mass. 503, 505 (1988).

At the time of the inspection there were no tenants living at the building. The minor plaintiff was not born until more than four years after Leary entered into the inspection contract with the third-party defendants. Her parents did not move into the building until more than two years after the inspection was conducted. There is no evidence in the summary judgment record that Leary or the third-party defendants had any intent to afford the minor plaintiff (or other unidentified future building occupants) any benefit from Leary’s performance under the terms of the contract. Even if it were possible to glean some such intent from the evidence in the record, I rule as a matter of law that such intent was neither clear nor definite. At best, unidentified future building occupants, including the minor plaintiff, were incidental beneficiaries and cannot assert claims arising from any alleged breach of the inspection contract. For this reason, I rule that the minor plaintiff is not an intended third-party beneficiary to the inspection contract.

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[10] Section 302 (1) states in relevant part, “Unless otherwise agreed between promisor and promisee, a beneficiary of a promise is an intended beneficiary if recognition of a right to performance in the beneficiary is appropriate to effectuate the intention of the parties and . . . (b) the circumstances indicate that the promisee intends to give the beneficiary the benefit of the promised performance.” All other third-party beneficiaries are deemed “incidental beneficiaries,” and cannot sue to enforce such contracts or for breach of such contracts. Section 302 (2).

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In any event, the undisputed evidence in this summary judgment record establishes that Leary did not breach any obligation to perform under the terms of the inspection contract and did not breach any duty of care or breach any express or implied warranty with respect to his inspection of the building in June 1988.

Accordingly, the defendant is entitled to summary judgment on the minor plaintiff’s second claim arising from the alleged breach of the inspection contract.

The minor plaintiff’s third and fourth claims allege violations of G.L. c. 93A. The Chapter 93A claims arise from the same facts and are derivative of her negligence and contract/warranty claims. Therefore, the defendant is entitled to summary judgment on the minor plaintiff’s G.L. c. 93A claims.

Conclusion and Order

For these reasons, the defendant’s Motion for Summary Judgment is ALLOWED.

It is ORDERED that judgment enter for the defendant on the minor plaintiff’s First Claim: negligence, Second Claim: breach of warranty and Third and Fourth Claims: violation of Chapter 93A.”

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[11] Upon entry of summary judgment for the defendant on all of the minor plaintiff’s claims, the court will direct judgment to enter dismissing the defendant’s contribution claims against all third-party defendants as set forth in his amended third-party complaint.

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End Of Decision

HOUSING COURT

MARIAN OMORODION, Plaintiff VS. ISABEL COMPERE, Defendant

BOSTON DIVISION

Docket # 06-SP-04198

Parties: MARIAN OMORODION, Plaintiff VS. ISABEL COMPERE, Defendant

Judge: /s/ JEFFREY M. WINIK

FIRST JUSTICE

Date: February 12, 2007

FINDINGS OF FACT, RULINGS OF LAW AND ORDER OF JUDGMENT

Based upon all the credible testimony and evidence presented at trial, and the reasonable inferences drawn therefrom, the Court finds as follows:

The plaintiff, Marian Omorodion, owns and manages the three-family dwelling at 79 Topliff Street, in the Dorchester section of Boston, as an investment property. The plaintiff has owned the property since December 7, 2005. She is engaged in trade or commerce with respect to the rental of residential property. The defendant, Isabel Compere, resides at 79 Topliff Street, Apartment 1, as a tenant at will. She has occupied the premises since August 2004. The defendant’s tenancy at will continued after the plaintiff purchased the property. The monthly rent is $1,000.00 due on the first day of each month.[1] I find that the defendant paid her rent in full from December 2005 through September 2006. The defendant has not paid rent from October

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[1] In 2006, the plaintiff attempted to increase the defendant’s rent to $1,500.00 per month. The defendant never agreed to pay this proposed new rent. A landlord cannot unilaterally implement a rent increase.

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2006 to February 2007. She currently owes a total of $5,000.00 in

unpaid rent.[2] On October 31, 2006, the plaintiff served the defendant with a legally sufficient fourteen (14) day notice to quit for non-payment of rent.

The defendant has asserted affirmative defenses and counterclaims arising from purportedly defective conditions in her apartment.

I find that the following defective conditions existed at the premises at the time the plaintiff became the owner in December 2005 and have continued to February 2007: cross-metering of electricity (first floor common area lights on defendant’s electric meter); front and rear doors to building not weathertight; front door to apartment has gap at threshold; mold and loose, peeling paint in bathroom; defective bathroom door; loose, peeling paint in apartment hallway; defective ceiling light in rear bedroom; no smoke detectors in front and rear common hallways. The plaintiff knew or should have known of these conditions as of the date she became the owner. The plaintiff attempted to make certain repairs; however, I find that she never successfully corrected the problems.

I find that the following additional condition existed at the premises as of October 2006 and have continued to the present: defective heating system.[3] The defendant complained to the plaintiff about the lack of heat beginning in October 2006. The plaintiff never corrected the problem.

On at least two occasions in 2006 (June and August), the Boston Water and Sewer Commission threatened to terminate water service to 79 Topliff Street because the plaintiff had failed to pay the water bill. The plaintiff knew that the water bill had not been paid and that continued water service was endangered. Despite this knowledge, she did not pay the bills when due. On both occasions the defendant had to pay a portion of the water bill ($338.31 on June 21 and $284.00 on August 29) in order to maintain water service to the building.

A. Breach of Implied Warranty of Habitability. There exists with respect to every residential tenancy an implied warranty of habitability that the premises are fit for human habitation. A landlord is in breach of this warranty where there exist defects that may materially

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[2] On January 19, 2007, the defendant deposited $3,000.00 with the Housing Court Clerk (to be held in an escrow account). This was a condition imposed by the Court in allowing the defendant’s motion to vacate a default.

[3] All of the conditions are set forth in a report from the City of Boston Housing Inspection Department (“ISD”) dated January 17, 2007.

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affect the health or safety of occupants. Boston Housing Authority v. Hemingway, 363 Mass. 184, 199 (1973). A breach of the implied warranty of habitability occurs from the point in time when a landlord had notice or should have known of a substantial defect or substantial Sanitary Code violation in the apartment. For purposes

of strict liability, a landlord is presumed to have knowledge of such defect or violation if it existed at the inception of the tenancy (or as of the date the landlord became the owner). The breach continues until the defect or violation is remedied. Berman & Sons, Inc. v. Jefferson, 379 Mass. 196 (1979) [landlord in breach of warranty from first notice of substantial Sanitary Code violations that recurred over time despite the landlord’s efforts to repair].

Under this strict liability standard, I rule that the existence of the above-identified defective conditions in the defendant’s apartment, constituted a material breach of the implied warranty of habitability.

The fair rental value of the premises free of defects is the contract rent of $1,000.00 per month ($15,000.00 for period from December 2005 to February 2007). I find that because of the defective conditions, the fair rental value of the premises was diminished by fifteen (15%) percent from December 2005 to September 2006 (ten months). I find that the fair rental value of the premises was diminished by thirty (30%) percent from October 2006 to February 2007 (five months). Accordingly, the fair rental value of the premises was as follows: $850.00 per month from December 2005 to September 2006; and $700.00 from October 2006 to February 2007. The difference between the fair rental value free of defects and the value given the defects that existed from December 2005 to February 2007 totals $3,000.00.

B. Quiet Enjoyment and Chapter 93A Counterclaims. G.L. c. 186, s.14 (statutory covenant of quiet enjoyment) provides that any landlord who “willfully or intentionally” fails to furnish water or “directly or indirectly interferes with the quiet enjoyment of any residential premises” shall be liable for “actual or consequential damages or three month’s rent, whichever is greater . . .” The statute imposes liability where the landlord’s conduct causes a serious interference with the tenant’s quiet enjoyment of the premises. A serious interference is an act or

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omission that impairs the character and value of the leased premises. Doe v. New Bedford Housing Authority, 417 Mass. 273, 284-285 (1994); Lowery v. Robinson, 13 Mass. App. Ct. 982 (1982). A landlord violates G.L. c. 186, s.14 and Chapter 93A where he had notice or reason to know of the serious conditions in a tenant’s apartment, and failed to take appropriate corrective measures. Al Ziab v. Mourgis, 424 Mass. 847, 850-851 (1997); Cruz Management Co. v. Thomas, 417 Mass. 782 (1994). 940 CMR 3.17(1)(i) provides that it shall be an unfair or deceptive act or practice for an owner to “fail to comply with the State Sanitary Code or any other law applicable to the conditions of a dwelling unit within a reasonable time after notice of a violation of such code or law from the tenant or agency.” Further, 940 CMR s.3.17(6)(f) provides that, “it

shall be an unfair and deceptive practice for an owner to . . . violate willfully any provisions of G.L. c. 186, s. 14.”

I rule that the plaintiff’s failure to repair the defective conditions in the defendant’s apartment and common areas over a period of more than a year, and her willful failure to pay for water service, constituted a violation of G.L. c. 186, s.14 and G.L. c. 93A. The actual damages under both statutes total $3,622.31 (the diminished value of the premises plus the water bill expenses incurred by the defendant).

Under G.L. c. 186, s.14, the actual damages ($3,622.31) are greater than the statutory damages ($3,000.00).

Under Chapter 93A, the prevailing party may recover “actual damages or twenty-five dollars, whichever is greater; or up to three but not less than two times such amount if the court finds that the use or employment of the act or practice was a willful or knowing violation” of the act. Where the tenant has withheld rent, the total amount of withheld rent is then deducted from this amount. The resulting figure is the final award of damages. Wolf berg v. Hunter, 385 Mass. 390 (1982). I find that the plaintiff’s failure within a reasonable period to correct the defective conditions and her actions in failing to pay for water service constituted willful and knowing violations of Chapter 93A. Accordingly, I shall double the actual damages to $7,244.62. From this amount shall be deducted the unpaid rent of $5,000.00. The final amount of damages due the defendant under Chapter 93A is $2,244.62.[4]

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[4] Since the unpaid rent has been deducted in calculating the Chapter 93A damages, the defendant is entitled to the return of the back rent ($3,000.00) she deposited with the Housing Court Clerk on January 19, 2007.

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C. No Cumulative Damages. The defendant is not entitled to cumulative damages arising from the same operative facts. Wofberg v. Hunter, 385 Mass. 390 (1982). The defendant’s warranty, quiet enjoyment and consumer protection act claims arose from the same operative facts. Accordingly, I shall award the defendant damages under G.L. c. 93A since that provides her with the largest net recovery (taking into account that the unpaid rent was set off and deducted from the actual damages to arrive at the final damages awarded under Chapter 93A).

D. G.L c. 239, & 8A Affirmative Defense. The plaintiff knew or should have known of the defective conditions at the premises before the defendant was first in arrears in her rent. Accordingly, the defendant has established an affirmative defense to possession pursuant to G.L c. 239, s.8A. The amount due the defendant is greater than the amount of due the plaintiff.

E. Retaliation Defense and Counterclaim

A tenant has a defense to the landlord’s claim for possession under G.L. c. 239, s.2A and a claim for damages under G.L. c. 186, s.18 if the landlord’s act of commencing the summary process action or serving the tenant with a notice of termination upon which the

action is based, was in retaliation for, among other things, the tenant’s reporting a violation or suspected violation of law to a health or building department, or reporting a violation or suspected violation of law in writing to the landlord as provided in G.L. c. 186, s.18.

There is no evidence that the defendant contacted ISD or reported a suspected violation to the plaintiff in writing before the plaintiff commenced this eviction action. The defendant has not proved that the plaintiff retaliated against her by bringing this eviction action. The plaintiff commenced this eviction action because the defendant had not paid rent after September 2006.

The defendant has not established a defense to possession under Section 2A or a claim for damages under Section 18.

ORDER FOR JUDGMENT

Based upon all the credible testimony and evidence presented at trial in light of the governing law, it is ORDERED that:

1. Judgment enters for the defendant on the plaintiff’s claim for possession pursuant to G.L. c. 239, s.8A.

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2. Judgment enters for the defendant on the plaintiff’s claim for unpaid rent;[5]

3. Judgment enters for the defendant on her counterclaims for breach of implied warranty of habitability, violation of G.L. c. 186, s.14 and violation of G.L. c. 93A, with damages awarded under G.L. c. 93A in the net amount of $2,244.62 (after deduction of unpaid rent).

4. Judgment enters for the plaintiff on the defendant’s G.L. c. 186, s.18 counterclaim.

5. Execution shall issue in favor of the defendant ten (10) days from the date that judgment enters.

6. The Housing Court Clerk shall release the escrowed funds ($3,000.00) to the defendant once the judgment becomes final.

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[5] The unpaid rent of $5,000.00 was deducted from the actual damages awarded to the defendant in calculating the net amount of damages on the defendant’s G.L. c. 93A counterclaim.

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End Of Decision

HOUSING COURT

DENICE BADGETT, Plaintiff VS. DIANE RAYFORD, LOUIS JOSEPH AND PIERRE JOSEPH, Defendants

BOSTON DIVISION

Docket # CIVIL ACTION NO.05-CV-00430

Parties: DENICE BADGETT, Plaintiff VS. DIANE RAYFORD, LOUIS JOSEPH AND PIERRE JOSEPH, Defendants

Judge: /s/ JEFFREY M. WINIK

FIRST JUSTICE

Date: January 31, 2007

ASSESSMENT OF DAMAGES AND ORDER FOR JUDGMENT

Defendants Louis Joseph and Pierre Joseph were defaulted on October 5, 2005. This matter is before the Court on the plaintiff’s motion to assess and award damages.

After hearing (at which the defendants did not appear), and based upon the undisputed facts set forth in the plaintiff’s affidavit dated January 31, 2007, the Court assesses damages in favor of the plaintiff, Denice Badgett, and against the defendants, Louis Joseph and Pierre Joseph, in the amount of $10,000.00 trebled to $30,000.00 pursuant to G.L. c. 93A.[1]

ORDER FOR JUDGMENT

Based upon all the credible evidence presented at the assessment of damages hearing in light of the governing law, it is ORDERED that:

1. Judgment enters for the plaintiff on her claims for breach of implied warranty of habitability, infliction of emotional distress, violation of G.L. c. 186, s. 14, and

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[1] The claims asserted by the plaintiff arise from the same tenancy and the same operative facts. The plaintiff is not entitled to recover cumulative damages arising from the same facts under every theory of recovery, but she entitled to recover damages under the theory, which results in the largest award of damages. Wolfberg v. Hunter, 385 Mass. 390 (1982). I shall award damages under G.L. c. 93A since that statute provides the plaintiff with the largest recovery.

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violation of G.L. c. 93A, with damages awarded under G.L. c. 93A in the amount of $30,000.00.

2. Execution shall issue ten (10) days from the date that judgment enters.

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End Of Decision

HOUSING COURT

GREG LUONGO AND TACEY LUONGO VS. LINDA ANN FORTIN

BOSTON DIVISION

Docket # SUMMARY PROCESS NO. 06-SP-02568

Parties: GREG LUONGO AND TACEY LUONGO VS. LINDA ANN FORTIN

Judge: /s/Jeffrey M. Winik

First Justice

Date: January 25, 2007

POST-JUDGMENT ORDER

This matter is before the Court on defendant Linda Ann Fortin’s (1) Motion for Judgment Notwithstanding the Verdict of the Jury or, in the Alternative, for a New Trial, and (2) Motion for Relief from Forfeiture or to Amend/Alter the Judgment.

After a four-day trial, a jury returned a verdict in favor of plaintiffs Greg and Tacey Luongo against defendant Linda Ann Fortin on the plaintiffs’ claim for possession of residential premises. The plaintiffs alleged that the defendant kept her apartment in a condition that constituted a serious and repeated violation of her lease. The defendant denied that allegation and asserted as an affirmative defense that the plaintiffs failed to afford her a reasonable accommodation to which she claims she was entitled under the provisions of state and federal anti-discrimination statutes. The jury answered eight special questions. The jury determined that the defendant failed to maintain her apartment in a clean and sanitary condition, and that such conduct constituted a serious and repeated violation of her lease. The jury rejected the defendant’s affirmative defense that the plaintiffs had discriminated against her because of a physical and/or mental handicap by failing to make a reasonable accommodation that she claimed would have enabled her to maintain her apartment free of clutter. Specifically, the jury determined in answer to special question no. 8 that the accommodation the defendant requested from the plaintiffs was not reasonable.

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After judgment entered on the jury verdict, the defendant

filed a timely motion for judgment notwithstanding the verdict under M.R.Civ.P., Rule 50(b).[1] The motion included a request for a new trial under M.R.Civ.P., Rule 59. The defendant also filed a separate motion seeking equitable relief pursuant to the anti-forfeiture doctrine and/or to amend or alter the judgment pursuant to M.R.Civ.P., Rule 60.

Defendant’s Judgment Notwithstanding the Verdict (N.O.V.) Motion. The test applied to a motion for judgment notwithstanding the verdict (“N.O.V.”) is the same as that applied to a motion for directed verdict. The Court must determine whether, “anywhere in the evidence, from whatever source derived, any combination of circumstances could be found from which a reasonable inference could be drawn in favor of the [prevailing party].” Turnpike Motors, Inc. v. Newbury Group, Inc., 413 Mass. 119, 121 (1992), quoting Dobos v. Driscoll, 404 Mass. 634, 656 (1978), quoting Poirier v. Plymouth, 374 Mass. 206, 212 (1978).

Considering the evidence in the light most favorable to the plaintiffs, there was competent evidence presented at trial to support the jury’s factual determinations that (1) the plaintiffs sent a copy of the notice to quit to the Section 8 administrator, Metropolitan Boston Housing Partnership (“MBHP”), (2) the defendant failed to maintain her apartment in a clean and sanitary condition, and (3) that the defendant’s requested accommodation was not reasonable.

First, the jury could reasonably infer from the writing on the notice to quit (that was placed in evidence without objection) that a copy of the notice was sent to MBHP at or near the time it was served on the defendant.[2]

Second, there was sufficient evidence presented at trial from which the jury could reasonably conclude that (1) the defendant had a serious “hoarding” problem that resulted in her apartment being dangerously cluttered with her personal belongings and other things, (2) that the cluttered condition created significant safety issues in her apartment and the common areas immediately adjacent to her apartment, and (3) the cluttered condition constituted a serious and repeated violation of her lease.

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[1] The defendant moved for a directed verdict after the plaintiffs rested as to their claim for possession. The Court denied the motion.

[2] Evidence was presented at trial sufficient to allow the jury to infer that MBHP had actual knowledge of the defendant’s “hoarding” problem and of the plaintiffs’ concerns regarding the condition in which the defendant maintained her apartment.

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Third, the “reasonable accommodation” requested by the defendant was that the plaintiffs forebear or stay the eviction action for an indeterminate period to give the defendant time to address her “hoarding” problem. However, the defendant’s expert witness, Cristina M. Sorrentino, Ph.D., MSW (she is the Project Director of the Psychopathology and Treatment of Compulsive Hoarding Project at the Boston University School of Social Work),

testified that as of December 4, 2006 (the third day of trial), she had not completed her clinical assessment of the defendant. She had not determined whether there was any reasonable probability that a treatment plan to address the defendant’s hoarding problem would work or, even if a treatment plan might work, how long it would take before there would be any significant reduction in the amount of clutter in the defendant’s apartment. Because Dr. Sorrentino had not completed her clinical assessment, she was not competent to render an expert opinion as to what clinical action might be taken to treat the defendant’s underlying hoarding problem, whether such action could reasonably be expected to result in the removal of the clutter from the defendant’s apartment at some point in the reasonably foreseeable future, and whether such action could reasonably be expected to prevent the hoarding problem from recurring. The defendant had the burden of proof with respect to her affirmative defense.

Considering the evidence and the inferences that could be drawn in the light most favorable to the plaintiffs, the jury could reasonably conclude that the defendant’s proposed accommodation (indeterminate as to duration and silent on the issue of whether the requested forbearance would result in any significant short and long term change in the defendant’s hoarding problem) was not reasonable.

Defendant’s New Trial Motion. Under M.R.Civ.P. 59, “the judge should only set aside the verdict if satisfied that the jury `failed to exercise an honest and reasoned judgment in accordance with the controlling principles of law.’ Turnpike Motors, Inc. v. Newbury Group, Inc., 413 Mass. 119, 127 (1992), quoting Robertson v. Gaston Snow & Ely Bartlett, 404 Mass. 515, 520 (1989). A judge should set aside the verdict only when it “is so greatly against the weight of the evidence as to induce in his mind the strong belief that it was not due to a careful consideration of the evidence, but that it was the product of bias, misapprehension or prejudice.” Turnpike Motors, Inc., supra. At 127, quoting Scannell v. Boston Elevated By., 208 Mass. 513, 514 (1911).

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For the same reasons set forth above in my rulings on the defendant’s N.O.V. motion, I conclude that there was sufficient evidence presented at trial to (1) support the jury’s verdict on the plaintiffs’ claim for possession, and (2) overcome any suggestion that the verdict was the product of the jury’s bias, misapprehension or prejudice.

Defendant’s Rule 60 and Request for Relief from Forfeiture Motion. The plaintiffs have not presented sufficient reasons at law or in equity to warrant the allowance of their motions that the Court amend, modify or disregard the jury’s verdict or grant equitable relief from the judgment for possession under the anti-forfeiture doctrine.

The defendant argues that as a matter of law or equity the verdict should be set aside because the plaintiffs refused to engage in an “interactive process” or any process with respect to the defendant’s request for a reasonable accommodation. As a matter of Massachusetts law, landlords are not required to engage in an “interactive process” when a tenant requests a reasonable

accommodation under the provisions of the anti-discrimination statutes. Andover Housing Authority v. Shkolnik, 443 Mass. 300, 308 (2005). Here, the plaintiffs and defendant characterize their reasonable accommodation discussions differently. The defendant says that the plaintiffs failed to engage in an “interactive process” on the issue of reasonable accommodation and that the plaintiffs were unwilling to consider any accommodation that would allow the defendant to remain as a tenant. The plaintiffs say that they did engage the defendant (through her counsel) in such discussions, but that the defendant would not consider any accommodation (such as time to search for alternative housing) that would require her to relocate to another apartment. Whichever view most accurately reflects the discussions that occurred, the fact that the parties could not bridge the gap that existed is the reason the case proceeded to trial. The defendant requested that a jury decide all factual issues. Therefore, whether the proposed accommodation was reasonable was for the jury to decide. It decided that issue adverse to the defendant. Although it is considered “the optimal way” to consider accommodation issues, id., the fact that the parties may not have engaged in an “interactive process” is not grounds for setting aside a jury verdict.

For the reasons set forth above, there was evidence sufficient to support the jury’s conclusion that the proposed accommodation was not reasonable.

The Court’s evidentiary rulings regarding the scope of Dr. Sorrentino’s testimony and her ability to render an opinion were correct. Further, the Court will not set aside the jury verdict

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based upon a proposed reasonable accommodation plan that was not presented to the jury and in fact was not completed until weeks after the jury rendered its verdict.[3]

It is an old common law principle that equity does not favor the forfeiture of a leasehold. See, Mactier v. Osborn, 146 Mass. 399, 402 (1888); Eno Systems, Inc. v. Eno, 311 Mass. 334 (1942). Equitable relief is appropriate where the specific facts and circumstances of the case suggest that a remedy less drastic than eviction can be fashioned that will prevent a continuance of the conduct that gave rise to the lease violations. See, Howard D. Johnson Co. v. Madigan, 361 Mass. 454 (1972). In such instances the court should enjoin the forfeiture of the tenancy only upon terms and conditions that will place the landlord in the same condition as if the breach had not occurred. Mactier v. Osborn, Id. A judge should invoke this doctrine with care, especially in situations where the parties have submitted their factual dispute to a jury for its consideration and verdict.

I am satisfied that the jury gave the defendant’s reasonable accommodation defense careful and deliberate consideration. In light of the evidence presented at trial, even if I might have reached a different conclusion, I am not prepared to substitute my judgment for that rendered by the jury. I cannot say with any confidence that even if the defendant were given more time she would be able to overcome her hoarding problem on a permanent basis.

Conclusion

For these reasons, the defendant’s (1) Motion for Judgment Notwithstanding the Verdict of the Jury or, in the Alternative, for a New Trial, and (2) Motion for Relief from Forfeiture or to Amend/Alter the Judgment are DENIED.

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[3] See December 15, 2006 plan attached to Sorrentino Affidavit date December 18, 2006.

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End Of Decision

HOUSING COURT

MIGUELINA MEJIA VS. CARLOS AGOSTA and MINERVA GRACIA

Docket # NO.05-C V-00397

Parties: MIGUELINA MEJIA VS. CARLOS AGOSTA and MINERVA GRACIA

Judge: /s/Jeffrey M. Winik, First Justice

Date: March 14, 2007

ORDER FOR AWARD OF STATUTORY ATTORNEY’S FEE AND COSTS

This matter is before the Court on a Motion for Attorney’s Fees and Costs filed by

Plaintiff Miguelina Mejia. The Plaintiff prevailed only on her statutory security deposit claim

under G.L. c. 186, s. 15B (Count I). Under the provisions of G.L. c. 186, s. 15B the prevailing

party is entitled to recover reasonable attorney’s fees and costs.

The plaintiff’s attorney, Rafael Mares, is a supervising attorney in the Housing Unit of the Hale and Don Legal Services Center of Harvard Law School. He supervised the work performed by three law students who each filed an affidavit that sets forth the time spent on legal work attributable to the security deposit claim. The fee petition seeks compensation calculated as follows: 14.5 hours for Attorney Mares and 92.45 hours for the three law students. The plaintiff seeks $8,421.00 in attorney’s fees, and $129.00 for costs and expenses. At oral argument the defendants’ attorney acknowledged that the plaintiff is entitled to an award of statutory attorney’s fees, but argues that the award should be in an amount significantly less than that requested by the plaintiff. The defendants argue that the attorney’s fee award should not exceed twenty (20%) percent of the amount requested by the plaintiff.

The Court should normally use the “lodstar” method to calculate the amount of a statutory award of attorney’s fees. Under the “lodstar” method, “[a] fair market rate for time reasonably spent in litigating a case is the basic measure of a reasonable attorney’s fee under

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State law as well as Federal law.” Fontaine v. Ebtec Corp., 415 Mass. 309, 325-26 (1993). However, the actual amount of the attorney’s fee is largely discretionary with the Trial Court judge. Linthicum v. Archambault, 379 Mass. at 388. An evidentiary hearing is not required. Heller v. Silverbranch Cons’. Corp., 376 Mass. 621, 630-631 (1978). In determining an award of attorney’s fees, the Court must consider “the nature of the case and the issues presented, the time and labor required, the amount of the damages involved, the result obtained, the experience, reputation and ability of the attorney, the usual price charged for similar services by other attorneys in the same area, and the amount of awards in similar cases. Linthicum v. Archambault, supra. at 381. 388-9. See Heller v. Silverbranch Const. Corp., supra. at 629 (“the standard of reasonableness depends not on what the attorney usually charges but, rather, on what his services were objectively worth . . . Absent specific direction from the Legislature, the crucial factors in making such a determination are: (1) how long the trial lasted, (2) the difficulty of the legal and factual issues involved, and (3) the degree of competence demonstrated by the attorney”). The prevailing party is entitled to recover fees and costs for the statutory claims on which he was successful. “As a rule, where a single chain of events gives rise to both a common law and a [statutory] claim, apportionment of legal effort between the two claims is not necessary . . . [Nonetheless], effort

expended on an unsuccessful common law claim brought in concert with a successful [statutory] claim should not be compensated.” Hanover Insurance Company v. Sutton, 46 Mass. App. Ct. 153, 176-77 (1999), quoting from Industrial Gen. Corp. v. Sequsia Pac. Sys. Corp., 849 F. supp. 820, 826 (D. Mass. 1994).

I have reviewed the affidavit and time records submitted by Attorney Mares and his student attorneys. Attorney Mares and the student attorneys represented their client with competence. However, they prevailed on only one claim (out of four) at trial. A significant amount of trial preparation and trial time was allocated to claims on which the plaintiff did not prevail. The security deposit claim involved one simple factual issue and one legal issue (whether the security deposit was placed in a proper segregated account, and whether the plaintiffs acceptance of a partial tender constituted an accord and satisfaction of the security deposit claim). The damages awarded on the security deposit claim totaled $2,850.00 (treble the amount of the deposit) plus $241.46 interest.

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I find that Attorney Mares’s time should be compensated at his requested reasonable hourly rate of $200.00, and that the time spent by the student attorneys should be compensated at the hourly rate of $60.00.[1]

The plaintiff may not recover attorney’s fees for time spent on claims upon which she did not prevail. I find that the time Attorney Mares and the student attorneys have allocated (totaling 106.95 hours) to the security deposit claim is excessive. I conclude that the fee award should be based upon the following reasonable hours: Attorney Mares – 6 hours, and student attorneys – 23 hours.

The plaintiff is not entitled to recover costs. I have reviewed Attorney Mares’s affidavit. The plaintiff seeks to recover the cost of serving subpoenas upon witnesses who did not present testimony relevant to the security deposit claim.

After considering all of the factors set forth above, I award the Plaintiff reasonable attorneys’ fees in the amount of $2,580.00.[2]

The award of attorney’s fees is without interest. See, Patry v. Liberty Mobilehome Sales, Inc., 394 Mass. 270, 272 (1985).

ORDER FOR JUDGMENT

Based upon all the credible testimony and evidence presented at trial in light of the governing law, it is ORDERED that:

1. Judgment enters for the Plaintiff on her G.L. c. 186, s. 15B security deposit claim (Count One) in the amount of $2,850.00 (three times the security deposit) plus $241.46 (5% statutory interest from November 2001 through December 2006), and statutory attorney’s fees of $2,580.00;

2. Judgment enters for the Defendants on the Plaintiff’s

implied warranty of habitability claim (Count Two);

3. Judgment enters for the Defendants on the Plaintiff’s interference with quiet enjoyment claim (Count Three);

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[1] The defendants do not contest the reasonableness of these hourly rates.

[2] 6 hrs x $200.00 = $1,200.00; 23 hrs x $60.00 = $1,380.00

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4. Judgment enters for the Defendants on the Plaintiff’s consumer protect act claim (Count Four);

5. Judgment enters for the Defendants on their breach of tenancy counterclaim (Count I) for unpaid rent in the amount of $733.00 and property damage in the amount of $450.00;

6. Judgment enters for the Plaintiff on the Defendants’ breach of implied covenant of good faith and fair dealing counterclaim (Count II);

7. Judgment enters for the Plaintiff on the Defendants’ fraud counterclaim (Count III); and

8. Judgment enters for the Plaintiff on the Defendants’ consumer protection act counterclaim (Count IV).

cc: Rafael Mares, Esq.

Legal Services Center

122 Boylston Street

Jamaica Plain, MA 02130

Stewart A. Engel, Esq.

171 Milk Street, Suite 400

Boston, MA 02109

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End Of Decision

HOUSING COURT

THE RITZ-CARLTON HOTEL COMPANY, LLC D/B/A THE RITZ-CARLTON BOSTON COMMON, Plaintiff VS. MARILYN B. HOFFMAN, Defendant

CITY OF BOSTON DIVISION

Docket # CIVIL ACTION NO.06-C V-00567

Parties: THE RITZ-CARLTON HOTEL COMPANY, LLC D/B/A THE RITZ-CARLTON BOSTON COMMON, Plaintiff VS. MARILYN B. HOFFMAN, Defendant

Judge: /s/JEFFREY M. WINIK

FIRST JUSTICE

Date: May 2, 2007

ORDER

This matter is before the Court on the plaintiff’s Motion to Strike Defendant’s Defenses and Counterclaims. The plaintiff is seeking relief because the defendant has failed to respond to the plaintiff’s discovery requests (interrogatories and request for documents) for information pertaining to the defendant’s discrimination-based defenses and counterclaim (alleging failure to accommodate the defendant’s disability).

The Court heard the motion on May 1, 2007. The plaintiff was represented by its attorney. The defendant appeared on her own behalf, pro se.

The plaintiff, The Ritz-Carlton Hotel Company, L.L.C. (the “Hotel”), is a limited liability company, authorized and registered to do business in the Commonwealth of Massachusetts. The Hotel is licensed to operate a luxury hotel known as The Ritz-Carlton Boston Common Hotel (the “Ritz”) located at 10 Avery Street, Boston.[1] The Ritz contains 193 hotel rooms and suites.

On March 10, 2006, the defendant, Marilyn Hoffman (“Hoffman”), registered at the Ritz as a guest.

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[1]The Ritz-Carlton Boston Common Hotel opened in 2001. The Ritz-Carlton Boston Hotel is a different hotel located at the corner of Arlington and Newberry Streets.

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By letter dated September 1, 2006, the Hotel requested that Hoffman end her stay at the Ritz and vacate her room by September 5, 2006.[2] Hoffman refused to vacate her room and leave the Ritz.

On September 15, 2006, the Hotel commenced this civil action seeking declaratory and injunctive relief against Hoffman. Count I of the verified complaint seeks a declaratory judgment that Hoffman is a licensee, that the license authorizing her to remain at the hotel was revoked on September 1, 2006, and that she has no right to remain on the Hotel premises. Count II of the verified complaint seeks an order directing Hoffman to vacate her hotel room and an injunction to enjoin the defendant from trespassing on the Hotel premises.

By agreement of the parties, Hoffman filed an answer that addressed only Count I of the Hotel’s complaint. Hoffman in her answer denied the allegations. The parties agreed that the Court would determine first whether Hoffman was a tenant or licensee (and if a licensee, whether the license had been properly revoked). For that purpose, the parties filed cross motions for summary judgment as to Count I.

In an Order dated January 17, 2007, this Court granted summary judgment to the Hotel as to Count I of the complaint. The Court declared that Hoffman “has at all times between March 10, 2006 and the present occupied Room 1134 at the Ritz-Carlton Boston Common Hotel as a licensee” of the Hotel. Further, the Court declared that “the September 1, 2006 notice from [the Hotel] to [Hoffman] was sufficient as a matter of law to revoke, effective September 5, 2006, the license granted by the plaintiff to the defendant to occupy her hotel room at the Ritz-Carlton Boston Common Hotel.”

With the Court’s summary judgment ruling, the Hotel established as a matter of law its prima facie case to recover possession on its trespass claim set forth in Count II of the

complaint. However, in her amended answer (which by agreement, Hoffman filed after the summary judgment decision was issued), she asserted an affirmative defense to the Hotel’s claim for possession and counterclaims. Hoffman alleges that she is a qualified handicapped person under the provisions of state and federal law, that she requested that the Hotel provide a reasonable accommodation to address her handicap, and that the Hotel failed to provide such reasonable

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[2] The Hotel has alleged in its complaint that Hoffman “has inundated the Hotel staff with demands for extraordinary treatment not offered to other Ritz-Carlton guests . . . often dominates the Hotel stars time with unreasonable requests . . . has been consistently belligerent and abusive with Hotel staff . . . consistently insults, humiliates and harasses the Hotel staff . . .” Hoffman has denied these allegations.

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accommodation. Hoffman further alleges that the Hotel retaliated against her in response to her requests for a reasonable accommodation.[3]

On February 9, 2007, with the assent of all parties, the Court issued an Amended Tracking Order. The Order provided that all written discovery requests were to be filed by February 23, 2007, and all discovery responses were to be filed by March 16, 2007.[4] On February 21, 2007, the Court scheduled a two-day jury trial to commence on June 19, 2007. By February 23, 2007, the parties exchanged discovery requests (interrogatories and document requests) focused on Hoffman’s discrimination affirmative defense and counterclaims.

On February 21, 2007, Mark D. Stern, Esq. filed a motion to withdraw his appearance as Hoffman’s attorney.[5] Mr. Stern asked that the motion hearing be scheduled before the date on which Hoffman’s discovery responses were due. He represented that because of his disagreement with Hoffman he would be unable to comply with the discovery response deadline set forth in the first Amended Tracking Order. At the March 6, 2007 motion hearing, I allowed Mr. Stem to withdraw as Hoffman’s attorney. I told Hoffman that the June 19, 2007 trial date would not be changed, but that I would give her additional time to comply with her discovery obligations. I also told her that if she did not retain a new attorney, she would have to represent herself.

On March 7, 2007, I issued a second Amended Tracking Order.[6] The Tracking Order provided that all responses to discovery were to be filed by April 13, 2007.[7] On April 13, 2007, the Hotel provided Hoffman with responses to Hoffman’s discovery requests. Hoffman did not provide the Hotel with any responses to its interrogatories or requests for documents.

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[3] The counterclaim does not identify Hoffman’s alleged handicap or disability; however, in the course of these

proceedings, Hoffman referred to her “multiple chemical sensitivity.”

[4] The first Amended Tracking Order also provided that Hoffman would disclose her experts by March 2, 2007, and that the Hotel would disclose its experts by March 16, 2007. All depositions were to be noticed by March 30 and completed by May 4, 2007, and requests for admissions were to be answered by May 11, 2007.

[5] In his motion, Attorney Stern alleges that Hoffman refused to pay for legal work he performed on her behalf, and that he “has been instructed by the client to take actions he cannot lawfully take in pursuit of her claims.” At the motion hearing, Hoffman denied these allegations. The Court did not conduct an evidentiary hearing and did not make any findings of fact as to these allegations.

[6] The Clerk sent a copy of the second Amended Tracking Order to Hoffman.

[7]The second Amended Order also provided that Hoffman would disclose her experts by April 30, 2007, and that the Hotel would disclose its experts by May 14, 2007. All depositions were to be noticed by May 11 and completed by May 31, 2007, and requests for admissions were to be answered by June 8, 2007.

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On April 18, 2007, the Hotel filed its motion to strike Hoffman’s defenses and counterclaims. The parties appeared in Court on May 1, 2007 for the motion hearing. As of that date, Hoffman had still not provided the Hotel with a single answer to any of the interrogatories or a single document responsive to the Hotel’s document request. She had not provided any medical records pertaining to her alleged handicap or a signed medical record release form that would allow the Hotel to obtain those documents directly from the medical providers, if any. Stated simply, with a jury-trial scheduled to commence on June 19, 2007, Hoffman has not provided the Hotel with a scintilla of evidence on the only trial issues that remain – whether Hoffman has a significant handicap that would bring her within the zone of protection provided under state and federal disability laws, and if the answer is yes, whether Hoffman’s requested accommodations are reasonable (including whether there is a nexus between her handicap and the requested accommodations).

The Hotel has requested, pursuant to Rule 37 (2) (C) of the Massachusetts Rules of Civil Procedure, that this Court strike Hoffman’s defenses and counterclaims as a sanction for her failure to provide discovery responses by the date set forth in the second Amended Tracking Order. The sanction requested by the Hotel is available where a party “fails to obey an order to provide” discovery. The second Amended Tracking Order was a clear and specific judicial order that required Hoffman (and the Hotel) to provide discovery responses by April 13, 2007.. Hoffman did not

comply with that Order. She has not provided a credible explanation or excuse to justify her failure to comply with the Discovery Order.

Nonetheless, I will afford Hoffman one last opportunity to comply with the Discovery Order. The Hotel’s Motion to Strike Defendant’s Defenses and Counterclaims is continued for further hearing to May 11, 2007 at 2 p.m. Hoffman shall have until the commencement of that hearing to provide the Hotel with (1) full and complete written answers (without objection) to the interrogatories propounded by the Hotel,[8] and (2) copies of all documents requested by the Hotel, including medical records, that are in her possession, custody or control.[9]

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[8] The interrogatory answers must be signed by Hoffman under the pains and penalties of perjury.

[9] With respect to medical records or doctors’ reports that are not in Hoffman’s possession, she must: 1) identify each hospital where she was examined, evaluated, diagnosed or treated and each doctor that examined, evaluated, diagnosed or treated her for any condition directly or indirectly related to her alleged handicap or disability. For each such hospital, doctor or medical provider, she must sign a medical document release form prepared by the Hotel’s attorney.

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If Hoffman complies with this LAST CHANCE opportunity to comply with the Court’s Discovery Order, then the Hotel’s Motion to Strike Defendant’s Defenses and Counterclaims shall be DENIED.

However, if Hoffman does not comply with this LAST CHANCE opportunity to comply with the Court’s Discovery Order, then the Hotel’s Motion to Strike Defendant’s Defenses and Counterclaims shall be ALLOWED. If the motion is allowed, the Court shall strike Hoffman’s defenses and counterclaims, and enter judgment for the Hotel on its claim (Count II) for injunctive relief against Hoffman to recover possession of the hotel room and to enjoin Hoffman from remaining at the Ritz.

cc: Gordon P. Katz, Esq.

Damon P. Hart, Esq.

Holland & Knight LLP

10 St. James Avenue

Boston, MA 02116

Marilyn B. Hoffman

The Ritz-Carlton Boston Common

10 Avery Street, Suite 1134

Boston, MA 02111

Guillermo Garza, Scheduling Clerk

Michael Neville, Chief Housing Specialist

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End Of Decision

HOUSING COURT

JOHN CLAESSENS and MEGHAN BOBERTZ VS. VIRGIL J. AIELLO, TRUSTEE OF VIRGIL AIELLO AND ROBERT AIELLO, 7-17 CHARLES STREET REALTY TRUST

BOSTON DIVISION

Docket # NO.03-CV-00540

Parties: JOHN CLAESSENS and MEGHAN BOBERTZ VS. VIRGIL J. AIELLO, TRUSTEE OF VIRGIL AIELLO AND ROBERT AIELLO, 7-17 CHARLES STREET REALTY TRUST

Judge: /s/Jeffrey M. Winik

First Justice

Date: April 17, 2007

ORDER

This civil action involves a dispute arising from a residential tenancy between the plaintiffs (tenants) and the defendant (owner). The plaintiffs have asserted claims for breach of contract (Count I), breach of the implied warranty of habitability (Count II), interference with quiet enjoyment (Count III), negligence (Count IV), constructive eviction (Count V), wrongful retention of last month’s rent deposit (Count VI), unfair trade practices (Count VII), and intentional infliction of emotional distress (Count VIII). The defendant denied the allegations set forth in the plaintiffs’ complaint and asserted a counterclaim for unpaid rent.

Acting upon a motion for summary judgment, Judge Fein ruled that the tenants were entitled to summary judgment as to liability on the tenants’ breach of contract, breach of implied warranty and G.L. c. 93A claims.[1] Ruling that disputed issues of fact existed, the judge denied summary judgment on the G.L. c. 186, s. 14, constructive eviction, last month’s rent, and the emotional distress claims.

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[1] The judge determined that there was insufficient heat, a defective smoke detector and no water in the sink at various unspecified times during the period from November 2002 to January 2003. These conditions constituted material breaches of the implied warranty of habitability. The breach of the implied warranty in turn constituted a violation of Chapter 93A. These rulings are binding on the trial judge. However, in determining damages, it remains for the trial judge to determine the specific times that the problems existed and the severity of those problems.

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Based upon all the credible testimony and evidence presented at trial, and the reasonable inferences drawn therefrom, the Court finds as follows:

Findings of Fact

Terms of Tenancy. The plaintiffs, Meghan Bobertz and John Claessens (collectively the “tenants”), occupied 9 Charles Street, Apartment 2 (the “apartment”), Boston, from June 15, 2001 until February 4, 2003. The apartment is on the third floor of the building. At the time the tenants moved into the apartment, their landlord was Bartolomeo DiPietro (“DiPietro”), trustee of the Joseph S. DeLuca Revocable Trust. The tenants and DiPietro signed a self-extending standard form apartment lease for a term that ran from June 15, 2001 through August 31, 2002. The monthly rent was $1,650.00 due on the first day of each month. At the inception of their tenancy, the tenants gave DiPietro a pre-paid last month’s rent deposit of $1,650.00. Under the terms of the lease, the landlord was obligated to furnish heat and hot water.

First Lease Term. The tenants were satisfied with the apartment during the first lease term. They had no problems with heat and the apartment was maintained in good repair. At the end of the first lease term, the tenants decided to remain at the apartment for a second year. Under the terms of the self-extending lease, the second lease term was for a period of one year beginning on September 1, 2002 and ending on August 31, 2003.

New Owner. The defendant, Virgil J. Aiello (“Aiello”), is DePietro’s nephew. Aiello has operated DeLuca’s Market on Charles Street for more than forty years. Aiello has maintained an office in the building next door to 9 Charles Street since 1962. Aiello owns and manages residential apartment buildings with approximately 30 apartments. As a residential landlord, Aiello is engaged in trade and commerce within the meaning of G.L. c. 93A. He is a licensed attorney, but he does not maintain an active law practice.

DiPietro died in 2002. On October 4, 2002, Aiello purchased 9 Charles Street from DiPietro’s trust. Aiello holds title to the property as trustee of the Virgil Aiello and Robert Aiello, 7-17 Charles Street Realty Trust. As of October 4, 2002, Aiello became the tenants’ landlord subject to the terms of the existing written lease. The tenants’ last month’s rent deposit was transferred to Aiello at the time of the conveyance.

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Conditions. The tenants did not complain to Aiello about heat between October 4 and November 16, 2002.[2] On November 17, 2002, in response to the tenants’ complaint of insufficient heat, an inspector from the City of Boston Inspectional Services Department (“ISD”) issued an emergency violation notice addressed to Aiello. The ISD notice cited insufficient heat (between 62 and 63 degrees Fahrenheit) and directed Aiello to correct the problem within twenty-four hours. Aiello was given a copy of the violation on November 17, 2002. Aiello promptly called his plumber, Jerry Caldwell, who came to the building the next day to make repairs.

The plumber corrected the heat problem and restored adequate heat to the apartment by November 18, 2002. The ISD inspector returned to the apartment on November 24, and determined that Aiello had corrected the heat violation, and closed the heat case.

During his November 24, 2002 visit, the ISD inspector conducted a full inspection of the apartment and identified one significant and six relatively minor sanitary code violations in the apartment and common areas that required repair. The ISD inspector issued two violation notices dated November 24, 2002. Aiello received copies of both notices. The first notice directed Aiello to replace a missing battery in a common area smoke detector outside the entry door to the apartment. Aiello either installed a battery or replaced the smoke detector. ISD closed the violation case in January 2003. The second notice identified the following sanitary code violations at the apartment: evidence of small leak (water stain and peeling paint) in bathroom ceiling; peeling paint on bathroom wall (above door); loose shower curtain rod; broken sash cord and weather-stripping needed on bedroom window; two additional outlets needed in kitchen; broken baluster in front common hall stairway. Aiello completed the bathroom wall and shower rod repairs by January 19, 2003. The other conditions existed at the time the tenants vacated the premises. With respect to the kitchen outlets, I find that the tenants had used the kitchen without complaint during the first year and a half of their tenancy.’ I find that the kitchen outlet condition, water stained ceiling, loose shower rod and broken baluster were minor

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[2] Bobertz testified that she and Claessens left a telephone message with Aiello that weekend, but that he did not respond. Aiello denies that the tenants tried to contact him. I find that the parties did not speak before the tenants contacted ISD.

[3] Prior to the ISD inspection, the tenants had never complained to Aiello about the outlets or the sufficiency of their electric service. The tenants were able to use an air conditioner in their bedroom without blowing fuses or otherwise adversely affecting their electrical service. The tenants testified that they purchased an electric space heater in November 2002. They said they used that heater in the living room, not in the kitchen. There was no evidence to show that the electric service in the apartment was insufficient to meet the reasonable needs of the tenants.

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conditions that did not interfere with the tenants’ use or diminish the value of the apartment.[4] However, I find that the non-weathertight bedroom window exacerbated the inadequate heat problem that existed during portions of the last two weeks in January 2003.

I find that the tenants did not complain to Aiello about heat

during the remainder of November or December 2002. The tenants brought their December rent to Aiello at his office. They did not complain about heat or any other conditions at that time.[5] The tenants did not contact ISD in December.

The tenants testified that during the first two weeks of January 2003, they tried without success to reach Aiello to complain about inadequate heat. They said they left telephone messages for Aiello but that he did not respond. I do not find their testimony on this point persuasive. Aiello’s office is located in the building next door to the tenants’ building. Aiello was present at his office each workday. Although the tenants knew where Aiello’s office was located and had gone there to meet with him in the past, they did not try to see him in person when they were unable to reach him by telephone.[6] I find that it was not until January 15, 2003, in a letter from Bobertz to Aiello, that the tenants first notified Aiello in 2003 that the heat system was again not working properly.

I find that there was insufficient heat coming through the radiators in the apartment from January 15 through January 28, 2003. On January 19, 2003, an ISD inspector determined that there was insufficient heat in the rear bedroom (63.3 degrees). On January 20, 2003, an ISD inspector determined that there was insufficient heat in the rear bedroom (60.2 degrees) and in the bathroom (60.4 degrees)[7]. On January 24, 2003, ISD issued an order directing the tenants to temporarily vacate the apartment (because of the heat problem). ISD scheduled an administrative hearing for January 28, 2003, to consider whether to condemn the apartment because of the heat problem. The tenants spent two nights (January 25 and 26) at a hotel at a

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[4] Bobertz testified that her real concern was the problem with the heat and that these other minor conditions were of secondary concern to her.

[5] Claessens testified that he and Bobertz were traveling outside Boston for two weeks in December 2002.

[6] The tenants delivered their rent checks to Aiello at his office.

[7] From ISD’s actions, it appears that the heat would fluctuate. ISD closed the January 19 violation notice on January 21. However, the January 20 ISD violation notice remained open until January 28.

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cost of $292.00. The tenants returned to the apartment on January 27. The ISD inspector re-inspected the apartment that day and determined that the heat was still insufficient.

On January 27, 2003, Aiello closed the cold water valve that

provided water to the spigot on the outside of the building (used to provide water for pets). Unbeknownst to Aiello, the valve also closed the cold water line running to the kitchen of the apartment. The tenants notified Aiello of the problem. Aiello corrected the problem and restored cold water to the apartment within minutes. The interruption of cold water for a period of minutes did not diminish the value or seriously interfere with the tenants’ use of the apartment.

Aiello did not take appropriate corrective measures to address the heating problem between January 15 and 27, 2003. Between January 16 and 18, Aiello placed insulation wrap around the heating pipes and increased the temperature setting on the boiler. These “self-help” efforts were ineffective and did not restore sufficient heat to the tenants’ apartment. It was not until January 28, 2003, that Aiello’s plumbing contractor, Jerry Caldwell, came to the building and successfully repaired the heating unit.[8] That same day, prior to the scheduled hearing, the ISD inspector returned to the apartment and determined that the heating system had been repaired and there was sufficient heat.[9]

The ISD condemnation hearing was held on January 28, 2003. The tenants appeared. Aiello testified that he never received notice of the hearing and for that reason did not appear. In any event, ISD determined that there was no cause to condemn the apartment based upon the ISD inspector’s report that the heating system had been repaired and adequate heat had been restored to the apartment.

End of Occupancy. On January 31, 2003, the tenants’ attorney delivered a letter to Aiello informing him that because of existing sanitary code violations, – most importantly the heat violation – the tenants would be vacating the apartment on February 4, 2003.10 The tenants decided to vacate the apartment even though the heating problem had been corrected to ISD’s satisfaction on January 28, 2003. There was no evidence of inadequate heat (or of any other

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[8] The plumber purged air from the heating mains in the basement and from the radiators in the apartment. He then balanced the heating system.

[9] In his report, the ISD inspector identified six minor sanitary code violations. These minor violations did not interfere with the tenants’ use of the apartment and did not diminish the value of the apartment.

[10] While identifying the minor sanitary code violations identified in the ISD notices, the attorney identified inadequate heat as the most serious problem.

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serious sanitary code violation) affecting the tenants’ ability to use the apartment between January 28 and 31, 2003.

The tenants vacated the apartment on February 4, 2003. They

left it clean and without damage.

On March 3, 2003, the tenants’ attorney sent Aiello a letter addressing the tenants’ complaints about their tenancy. The letter included a demand for monetary relief under the provisions of G.L. c. 93A.[11] I find that Aiello never sent the tenants or their attorney a written response to the demand letter.

Remainder of Lease Tenn. The tenants did not pay rent to Aiello for February 2003. Aiello did not return the pre-paid last month’s rent deposit to the tenants. Aiello did not pay the tenants interest on the deposit.

It is undisputed that the tenants did not return to live in the apartment and did not pay rent for the remainder of the lease term (February through August 2003). Aiello retained the pre-paid last month’s rent deposit. Assuming the deposit was applied to cover the rent due for February, Aiello did not present evidence to establish whether he re-let the apartment and received rent in any amount from a new tenant between March and August 2003.

Rulings of Law

Breach of Lease/Breach of Implied Warranty of Habitability Claims. The tenants’ claims for breach of lease and breach of the implied warranty of habitability were established as to liability upon summary judgment. Both claims arose from the defective conditions that have been found to have existed at various periods between November 2002 and January 2003. The G.L. c. 93A claim was based explicitly upon Aiello’s breach of the implied warranty of habitability.

The measure of damages for breach of contract and breach of the implied warranty of habitability is the same. A breach of the implied warranty of habitability (and breach of lease) occurs from the point in time when a landlord had notice or should have known of a substantial

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[11] Claessens testified that he and Bobertz paid $2,500.00 for renting temporary lodging during February until they secured a new apartment beginning in March 2003. He further testified that he was forced to spend $295.00 for food (over and above what he would usually have spent), $60.00 for a mailbox, $27.00 for dry cleaning, $97.00 for a space heater, $68.00 for moving supplies, $49.00 for cleaning supplies, $14.00 for boxes, and $1,697.00 for movers and temporary storage.

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defect or substantial Sanitary Code violation in the apartment. The breach continues until the defect or violation is remedied. Berman & Sons, Inc. v. Jefferson, 379 Mass. 196 (1979) [landlord in breach of warranty from first notice of substantial Sanitary Code violations that recurred over a period of time despite the landlord’s efforts to repair]. The measure of damages for breach of

the implied warranty of habitability (and for breach of lease) is the difference between the fair rental value of the premises free of defects and the fair rental value of the premises during the period that the defective conditions existed. Boston Housing Authority v. Hemingway, 363 Mass. 184 (1973); Haddad v Gonzalez, 410 Mass. 855, 872 (1991).

I find that the fair rental value of the premises free of defects from November 2002 through January 2003 was the contract rent of $1,650.00.

Because of the inadequate heat problems, I rule that the fair rental value of the premises was reduced to zero for the period from November 17 to 18, 2002, and from January 15 to 28, 2003. Accordingly, the tenants have established damages for breach of lease and for breach of the implied warranty of habitability in the amount of $855.00.[12]

Chapter 93A Claim. The tenants’ claim for violation of G.L. c. 93A was established as to liability upon summary judgment. Liability was found explicitly upon the Aiello’s material breach of the implied warranty of habitability at various periods in November 2002 and January 2003.[13]

The tenants’ actual and consequential damages include diminished value of the premises in November 2002 and January 2003 ($855.00) plus the hotel costs for January 25 and 26 ($292.00). The damages total $1,147.00.

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[12] November 2002: $1,650.00 /30 x 2 days = $110.00; January 2003: $1,650.00 /31 x 14 days = $745.00.

[13] A landlord violates G.L. c. 93A where a breach of the implied warranty of habitability is found by the court to be material and substantial. Cruz Management Co. Inc., v. Thomas, 417 Mass. 782 (1994); Dorgan v. Loukas, 19 Mass. App. Ct. 959 (1985).

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I rule that Aiello’s breach of the implied warranty did not constitute a willful or knowing violation of Chapter 93A.

The tenants’ demand letter delivered to Aiello on or about March 3, 2003, constituted a legally sufficient demand for relief pursuant to G.L. c. 93A, s. 9. Aiello never responded in writing or orally to the tenants’ demand for relief. I rule that Aiello’s

failure to make any offer or grant any relief in response to the tenants’ demand letter was made in bad faith with knowledge or reason to know that at least some of the acts or practices complained of were unfair or deceptive in violation of G.L. c. 93A, s. 2. Accordingly, I shall treble the damages to $3,441.00.

Interference With Quiet Enjoyment Claim. The quiet enjoyment statute, G.L. c. 186, s. 14, provides that any landlord who “is required by law or by the express . . . terms of any contract or lease … to furnish heat . . . who willfully or intentionally fails to furnish such heat . . . at any time when the same is necessary to the proper or customary use of such building . . .” or who “directly or indirectly interferes with the quiet enjoyment of any residential premises” or “who willfully or intentionally fails to furnish . . . hot water . . . janitor service . . .” shall be liable for “actual or consequential damages or three month’s rent, whichever is greater …” While the statute does not require that the landlord’s conduct be intentional, Simon v. Solomon, 385 Mass. 91 (1982), it does require proof that the landlord’s conduct caused a serious interference with the tenant’s quiet enjoyment of the premises. A serious interference is an act or omission that impairs the character and value of the leased premises. Doe v. New Bedford Housing Authority, 417 Mass. 273, 284-285 (1994); Lowery v. Robinson, 13 Mass. App. Ct. 982 (1982). A landlord violates G.L. c. 186, s. 14 where he had notice, or reason to know of a serious condition adversely affecting the tenant’s use of the apartment, and failed to take appropriate corrective measures. Al Ziab v. Mourgis, 424 Mass. 847, 850-851 (1997); Cruz Management Co., Inc. v. Thomas, 417 Mass. 782 (1994).

I rule that Aiello did not willfully or intentionally fail to furnish heat to the tenants. However, I rule that Aiello directly or indirectly interfered with the tenants’ quiet use and enjoyment of their premises when he failed to take appropriate corrective measures to address the inadequate heat problem that existed in the apartment between January 15 and 28, 2003. It was not until January 28, 2003, that he finally had a plumber effectively correct the problem.

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The tenants’ actual and consequential damages include diminished value of the apartment in January 2003 ($745.00) plus the hotel costs for January 25 and 26 ($292.00). Since the total actual and consequential damages ($1,037.00) resulting from this G.L. c. 186, s. 14 violation does not exceed three month’s rent, the tenants are entitled to statutory damages of $4,950.00 (three month’s rent) plus costs and a reasonable attorney’s fee.

Intentional Infliction of Emotional Distress Claim. The tenants have failed to present evidence sufficient to establish either of them suffered emotional distress as a result of the condition of their apartment. Even if one or both tenants suffered emotional distress, the tenants failed to present evidence sufficient to establish with respect to the manner in which the apartment was maintained (1) that Aiello ” . . . intended to inflict emotional distress or that he knew or should have known

that emotional distress was the likely result of his conduct . . .”; (2) that Aiello’s “conduct was extreme and outrageous, beyond all possible bounds of decency, and was utterly intolerable in a civilized community . . .”; (3) that Aiello’s actions were the cause of either tenant’s distress; and (4) that either tenant’s distress “was severe and of a nature that no reasonable man could be expected to endure it.” Agis v. Howard Johnson, 371 Mass. 140, 144-145 (1976). Accordingly, the tenants have not established their claim for intentional infliction of emotional distress.

Negligence Claim. The tenants did not suffer any injury to person or property arising from the defective conditions that existed at the apartment in November 2002 or January 2003. Accordingly, the tenants have not established a claim sounding in negligence.

Cumulative Damages. The tenants are not entitled to recover cumulative damages arising from the same facts under every theory of recovery, but they are entitled to recover damages under the theory that results in the largest award of damages. Wolf berg v. Hunter, 385 Mass. 390 (1982).

The tenants conditions-based claims under the breach of the implied warranty, interference with quiet enjoyment and unfair trade practice counts arise from the same facts. I shall award damages under the quiet enjoyment count in the amount of $4,950.00 since that provides the tenants with the largest award (including recovery of attorney’s fees and costs).

Constructive Eviction Claim. Historically, constructive eviction was an affirmative defense to a landlord’s claim for damages (usually unpaid rent and re-rental costs) for breach of lease. The tenant was required to have abandoned the premises in order to assert the defense.

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With the development of the implied warranty of habitability, Boston Housing Authority v. Hemingway, supra., the constructive eviction defense is rarely used in a residential tenancy dispute. However, the tenants have pleaded constructive eviction as an affirmative claim. The tenants’ claim is that they were forced to abandon their apartment because it was unlivable as a result of Aiello’s failure to make repairs. They claim that they incurred substantial moving and relocation related costs attributable to Aiello’s failure to repair the apartment.

To establish a claim of constructive eviction, the tenants must prove that (1) one or more serious defective conditions existed that rendered the premises uninhabitable; (2) the landlord intentionally or wrongfully either created the conditions or failed to correct them; (3) the landlord’s act must be of a character which deprived the tenant permanently or for a substantial time of the enjoyment of the property; and (4) the tenant abandoned the premises because of the defective condition. See, Wesson v. Leone Enterprises, Inc., 437 Mass. 708 (2002); Westland Hous. Corp. v. Scott, 312 Mass. 375 (1942); Tracy v. Long, 295 Mass. 201 (1936); Northern Associates, Inc. v. Kiley, 57 Mass. App. Ct. 878 (2003).

The problem with inadequate heat that existed from January 15

to 28, 2003 was serious. Aiello’s failure to act promptly or effectively to correct the problem rendered the apartment uninhabitable for at least a portion of that fourteen-day period. Nonetheless, Aiello’s plumber repaired the boiler and restored adequate heat to the apartment on January 28, 2003. The tenants learned at the January 28 ISD hearing that ISD was satisfied that Aiello had corrected the heating violation. The tenants’ January 31 written notice stating their intention to abandon the apartment came after the heat had been restored. They decided to move because they believed the problem with inadequate heat was chronic and would recur. However, over the course of their tenancy (that began in 2001) they had problems with their heat only over a two-day period in November 2002 and a fourteen-day period in January 2003. The tenants did not present evidence sufficient to establish that there existed a chronic or permanent heating problem that was likely to recur had they continued to live in their apartment through the end of their lease term.

Accordingly, I rule that the tenants have failed to establish a claim based upon constructive eviction.[14]

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[14] For these reasons, the tenants have not established a constructive eviction affirmative defense to Aiello’s rent claim.

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Unpaid Rent Counterclaim. It is undisputed that the tenants vacated the apartment in February 2003. It is undisputed that the tenants did not pay rent for the remainder of the lease term from February through August 2003. Aiello properly retained the tenants’ pre-paid last month’s rent deposit. After deducting the deposit (that I assume was applied towards the February rent), the remaining amount of rent due under the terms of the lease was $9,900.00. However, Aiello did not present any evidence that he suffered monetary loss resulting from the tenants’ failure to pay rent.

“[A] party cannot recover damages for loss that he could have avoided by [such] reasonable efforts . . . as are appropriate in the circumstances to avoid loss by making substitute arrangements or otherwise.” Brewster Wallcovering Company v. Blue Mountain Wallcoverings, Inc., (Appeals Court No. 05-P-1044, decided April 6, 2007), quoting Restatement (Second) of Contracts s. 350(1) comment b (1981). See Maynard v. Royal Worcester Corset Co., 200 Mass. 1, 6 (1908); Delano Growers’ Coop. Winery v. Supreme Wine Co., 393 Mass. 666, 684 (1985); National Medical Care, Inc. v. Zigelbaum, 18 Mass. App. Ct. 570, 581 (1984). See also Cooney Indus. Trucks, Inc. v. Toyota Motor Sales, U.S.A., Inc., 168 F.3d 545, 546 n.1 (1st Cir. 1999). The tenants, as the parties in breach of the lease, bore the burden of demonstrating that Aiello did not make reasonable efforts to mitigate the damages stemming from the their failure to pay rent. American Mechanical Corp. v. Union Mach. Co. of Lynn, Inc., 21 Mass. App. Ct. 97, 103 (1985). As a person who

owns and manages thirty residential rental apartments, Aiello was in a position to advertise or place the apartment with a broker in an effort to rent it to another tenant. This is sufficient to shift the burden back to Aiello to prove that he made reasonable effort to re-let the apartment in an effort to mitigate his damages. Aiello did not present any evidence to show that he made any reasonable efforts to re-let the apartment. Further, he did not present any evidence to show whether he received rent in any amount for the apartment from a new tenant between March and August 2003.

Accordingly, Aiello has not established his claim for damages resulting from the tenants’ failure to pay rent for the remaining months of the lease.

Last Month’s Rent Claim. G.L. c. 186, s. 15B (2)(a) provides that when a landlord receives rent in advance, the landlord must pay five percent interest (or such lesser amount received from the deposit bank) on the deposit to the tenant each year. The statute provides that “[i]f the lessor fails to pay any interest to which the tenant is then entitled within thirty days after

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the termination of the tenancy, the tenant upon proof of the same . . . shall be awarded damages in an amount equal to three times the amount of interest to which the tenant is entitled, together with court costs and reasonable attorneys fees.”

Aiello applied the last month’s rent deposit (as was his right) to pay the February 2003 rent. In the absence of proof that he suffered monetary loss resulting from unpaid rent after February 2003, Aiello was obligated to pay the tenants the accrued interest. However, despite their written demands, Aiello never paid the tenants interest that accrued from June 15, 2001 through January 31, 2003.[15] The amount of interest due is $134.06.

The tenants have established their claim under G.L. c. 186, s. 15B (2) (a), and they shall be awarded damages of $402.18 (three times the interest due) plus costs and reasonable attorney’s fees.

INTERIM ORDER

Based upon all the credible testimony and evidence presented at trial in light of the governing law, it is ORDERED that:

1. Judgment enter for the plaintiffs on Count I (breach of contract), Count II (breach of implied warranty of habitability), Count III (breach of covenant of quiet enjoyment), and Count VII (violation of consumer protection act) of their complaint, with damages awarded under G.L. c. 186, s. 14 in the amount of $4,950.00 plus costs and a reasonable attorney’s fees.

2. Judgment enters for the plaintiffs on Count VI (violation of G.L. c. 186, s. 15B) of their complaint in the amount of $402.18 plus costs and reasonable attorney’s fees.

3. Judgment enters for the defendant on Count IV (negligence) and Count V (constructive eviction) of the plaintiffs’ complaint.

4. Judgment enters for the plaintiffs on the defendant’s counterclaim (unpaid rent).

5. Within twenty (20) days after the issuance of this Interim Order, the plaintiffs may file with this Court a motion for counsel fees, costs and expenses in accordance with the procedure prescribed in Yorke Mgmt. v. Castro, 406 Mass. 17, 20 (1989).

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[15] G.L. c. 186, s. 15B (2) (a) provides that, “interest shall not accrue for the last month for which rent was paid in advance.” In this case, February 2003 was the last month for which the tenants paid rent in advance.

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6. Final Judgment shall enter after statutory attorney’s fees, costs and expenses are assessed.

cc: Burton A. Nadler, Esq.

Eliza J. Minsch, Esq.

Petrucelly & Nadler, P.C.

1 State Street, Suite 900

Boston, MA 02109

Virgil J. Aiello

7 Charles Street

Boston, MA 02114

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End Of Decision

HOUSING COURT

JUDITH C. PISTORIO, TRUSTEE OF THE HELEN TRUST, ANNE M. PISTORIO, DALE GABRIEL, VITO ASCOLILLO, BARBARA MALDERO and CARMEN COLARUSSO, Plaintiffs VS. CHRISTINE ARAUJO, ANGELO BUONOPANE, PETER CHIN, MICHAEL MONOHAN, ROBERT SHORTSLEEVE, BENITO TAURAR, as they are the members of the ZONING BOARD OF APPEAL and KAREN ROACH as she is the assistant corporation counsel of the CITY OF BOSTON and JOHN CINCOTTI (THE DOGFATHER, LLC), Defendants

CITY OF BOSTON DIVISION

Docket # SUMMARY PROCESS NO. 07-CV-00128

Parties: JUDITH C. PISTORIO, TRUSTEE OF THE HELEN TRUST, ANNE M. PISTORIO, DALE GABRIEL, VITO ASCOLILLO, BARBARA MALDERO and CARMEN COLARUSSO, Plaintiffs VS. CHRISTINE ARAUJO, ANGELO BUONOPANE, PETER CHIN, MICHAEL MONOHAN, ROBERT SHORTSLEEVE, BENITO TAURAR, as they are the members of the ZONING BOARD OF APPEAL and KAREN ROACH as she is the assistant corporation counsel of the CITY OF BOSTON and JOHN CINCOTTI (THE DOGFATHER, LLC), Defendants

Judge: /s/Jeffrey Winik

First Justice

Date: April 11, 2007

ORDER

The plaintiffs’ application for a Preliminary Injunction is DENIED. The plaintiffs at this stage of the proceedings have not shown a reasonable likelihood of success on the merits of their claim. The plaintiffs are not foreclosed from filing a new request for injunctive relief if the operation of the business at issue in this case (a dog grooming and retail pet supply business) is shown to cause serious harm or interference with the abutters’ quiet enjoyment of their homes.

The initial question of law that I must decide is whether the plaintiffs’ zoning appeal was filed in a timely manner. The cased is continued to May 11, 2007 at 2:00 p.m. for a hearing on the Zoning Board of Appeal’s motion to dismiss.

SO ORDERED.

End Of Decision

HOUSING COURT

GREG LUONGO and TACEY LUONGO, Plaintiffs VS. LINDA ANN FORTIN, Defendant

CITY OF BOSTON DIVISION

Docket # CIVIL ACTION NO. 06-CV-00485

Parties: GREG LUONGO and TACEY LUONGO, Plaintiffs VS. LINDA ANN FORTIN, Defendant

Judge: /s/JEFFREY WINIK

FIRST JUSTICE

Date: April 5, 2007

MEMORANDUM OF DECISION ON PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT

Procedural History and Conclusively Established Facts

Plaintiffs Greg and Tacey Luongo commenced an eviction action against defendant Linda Ann Fortin. The plaintiffs alleged as grounds for eviction that the defendant failed to maintain her apartment in a safe and sanitary condition (significant cluttered condition creating structural and significant fire safety hazard) and that her conduct constituted a serious and repeated violation of her Section 8 lease. The defendant filed an answer that included counterclaims. In her answer the defendant asserted as a defense that the plaintiffs did not properly terminate her tenancy because they did not provide the Section 8 administrator (Metropolitan Boston Housing Partnership) with a copy of the notice to quit as is required under the Section 8 lease. She denied that the plaintiffs had good cause to terminate her Section 8 tenancy claiming that she maintained her apartment in a manner that complied with her lease obligations. Pleading in the alternative, the defendant also asserted as an affirmative defense that the plaintiffs failed to afford her a reasonable accommodation (forbearance from proceeding with the eviction for an indeterminate period to give her time to address her “hoarding” problem) to which she claims she was entitled under the provisions of the state anti-discrimination statute. Because the plaintiffs’ possession claim was based upon an allegation of fault (other than non-payment of rent), the defendant was not entitled to raise or

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present evidence pertaining to her counterclaims at the trial of the summary process action. See, G.L. c. 239, s. 8A, p. 1. For this reason, the Court severed the defendant’s counterclaims from the summary process action and transferred them to the civil docket.[1] Although the discrimination counterclaim was severed, the defendant was permitted to present her discrimination affirmative defense (failure to afford reasonable accommodation) at the summary process trial.

The summary process case proceeded to trial. After a three-day trial, a jury returned a verdict in favor of the plaintiffs against the defendant on the plaintiffs’ claim for possession. The jury answered eight special verdict questions.[2] The jury determined that the plaintiffs gave a copy of the notice to quit to MBHP at the same time they served the notice on the defendant (Special Question 1). Further, the jury determined that the defendant failed to maintain her apartment in a clean and sanitary condition, and that such conduct constituted a serious and repeated violation of her lease (Special Questions 2 and 3). Finally, the jury determined that the defendant had a physical or mental impairment, that such impairment was related to her inability to maintain her apartment in a clean and sanitary condition, that she was a “qualified handicapped person,” and that she had requested that the plaintiffs reasonably accommodate her disability (Special Questions 4, 5, 6 and 7). However, the jury rejected the defendant’s discrimination affirmative defense that the plaintiffs had failed to make a reasonable accommodation (forbearance from proceeding with the eviction action) that she claimed would have enabled her to maintain her apartment free of clutter. Specifically, the jury

determined that the accommodation the defendant requested from the plaintiffs was not reasonable (Special Question 8).

The remaining counterclaims (that had been severed from the summary process case and transferred to the civil docket) are the subject of the plaintiffs’ Motion for Summary Judgment.

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[1]The counterclaims are: Case not properly terminated (defective notice to quit or defective service of notice); Interference with quiet enjoyment and violation of privacy; Violation of G.L. c. 93A; Pre-textual eviction; Discrimination (non-specific general claim based upon disability; specific claim based upon failure to make reasonable accommodation); Claim for damages based upon defective conditions (breach of implied warranty of habitability violation of G.L. c. 186, s. 14 and violation of G.L. c. 93A).

[2]The Court takes judicial notice of the jury’s answers to the special verdict questions rendered in the summary process action.

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Discussion

To prevail on a Motion for Summary Judgment, the moving party must demonstrate with admissible evidence, based upon the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits, that there are no genuine issues as to any material facts and that the moving party is entitled to judgment as a matter of law. Mass.R.Civ.P. 56(c). Community National Bank v. Dawes, 369 Mass. 550, 553-556 (1976). Once the moving party meets its initial burden of proof, the burden shifts to the non-moving party “to show with admissible evidence the existence of a dispute as to material facts.” Godbout v. Cousens, 396 Mass. 254, 261 (1985). “A party moving for summary judgment in a case in which the opposing party will have the burden of proof at trial is entitled to summary judgment if he demonstrates, by reference to material described in Mass.R.Civ.P. 56(c), unmet by countervailing materials, that the party opposing the motion has no reasonable expectation of proving an essential element of that party’s case.” Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716, (1991).

The plaintiffs contend that the jury’s verdict (as set forth in their answers to the special verdict questions) resolved all factual issues pertaining to the defendant’s counterclaims, and that under the doctrine of issue preclusion, the defendant is barred from re-litigating any of the issues in this civil action. Claiming that there are no disputed issues of material fact, the plaintiffs argue that they are entitled to judgment as a matter of law on all of the defendant’s counterclaims.

“When an issue of fact or law is actually litigated and determined by a valid and final judgment and the determination is essential to the judgment, the determination is conclusive in a subsequent action between the parties, whether on the same or a different claim.” Fay v. Federal National Mortgage Association, 419

Mass. 782, 789 (1995), quoting Fireside Motors, Inc. v. Nissan Motor Corp. in U.S.A., 395 Mass. 366, 372 (1985), quoting Restatement (Second) of Judgments s. 27 (1982).[3]

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[3]See also, Heacock v. Heacock, 402 Mass. 21, 23, fn 2 (1988) (“Issue preclusion is the modern term for the doctrine traditionally known as `collateral estoppel,’ and prevents relitigation of an issue determined in an earlier action where the same issue arises in a later action, based on a different claim, between the same parties or their privies”).

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The Court addresses each of the counterclaims asserted in the defendant’s answer to determine whether the jury’s verdict in the summary process action determined the issue or issues of fact essential to the counterclaim.

1. Tenancy Not Properly Terminated. The defendant alleges that the plaintiffs did not properly terminate her tenancy by serving a legally sufficient notice to quit, and that their failure to do so constitutes an unfair or deceptive act or practice in violation G.L. c. 93A. The jury’s verdict on the issue of possession resolved all issues essential to determine whether the defendant’s tenancy was terminated in accordance with the terms of the subsidized lease by an adequate and sufficient notice to quit. Accordingly, the jury’s determination on this issue is conclusive and the plaintiffs are entitled to summary judgment on this counterclaim.

2. Discrimination. The defendant alleges in p. 20 of her answer that the plaintiffs discriminated against her as a result of her disability. The defendant did not specify the act or acts that she alleges constituted discriminatory conduct. The defendant also alleges in p. 21 of her answer that the plaintiffs discriminated against her by failing to make a reasonable accommodation to address the “clutter” issue.

The only discrimination issue presented at the summary process trial (raised by the defendant as an affirmative defense) involved the reasonable accommodation claim.4 After finding that the defendant was a “qualified handicapped person,” the jury’s answer to Special Question 8 resolved the remaining issue necessary to decide whether the defendant had established a “reasonable accommodation” defense. The jury determined that the accommodation requested of the plaintiffs by the defendant was not reasonable. This factual determination was essential to the jury’s verdict that the defendant had not established a discrimination affirmative defense. The defendant’s “reasonable accommodation” discrimination counterclaim raises issues of fact identical to those decided by the jury when it considered the defendant’s affirmative defense. An essential element of the affirmative defense and counterclaim that the defendant must prove is that the accommodation she requested was reasonable. The jury’s determination on this issue (that the accommodation requested was not reasonable) is conclusive and the plaintiffs are entitled to summary

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[4]The jury determined that the defendant has a physical or mental impairment that renders her disabled within the meaning of the state anti-discrimination statute.

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judgment on that portion of the discrimination claim based on the failure to afford the defendant a reasonable accommodation.[5]

The doctrine of issue preclusion does not apply to issues that were not litigated in the prior proceeding. The parties did not present and the jury did not consider the defendant’s discrimination claim set forth in p. 20 of her answer to the extent that pleading may be read as an allegation that the plaintiffs engaged in acts (other than those related to the defendant’s reasonable accommodation claim) that would constitute disability-based discrimination under state law.[6] For this reason, the plaintiffs are not entitled to summary judgment to the extent the defendant’s discrimination counterclaim is based on allegations other than a failure to consider or provide a “reasonable accommodation.”

3. Remaining Counterclaims. The jury did not hear evidence or decide any factual issues pertaining to the defendant’s conditions-based counterclaims as set forth in p.s 24 and 25 of the defendant’s answer (breach of implied warranty of habitability, G.L. c. 93A, G.L. c. 186, s. 14) or conduct-based counterclaims as set forth in p.s 29, 31, 38 and 42 of the defendant’s answer (G.L. c. 186, s. 14 and G.L. c. 93A). Since these issues were not litigated in the summary process action, the doctrine of issue preclusion does not apply.[7] Accordingly, the plaintiffs are not entitled to summary judgment on these conditions-based and conduct-based counterclaims.

Conclusion

For these reasons, the plaintiffs’ Motion for Summary Judgment is ALLOWED in part and DENIED in part. The plaintiffs are entitled to summary judgment on the defendant’s counterclaims that seeks money damages for 1) failure to properly terminate tenancy in violation of G.L. c. 93A, and 2) discrimination based upon failure to consider or provide

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[5] The defendant argued in the summary process case that the plaintiffs refused to consider or provide any accommodation she requested. This issue cannot be litigated again in the civil action.

[6]The plaintiffs can frame discovery requests to identify and determine whether there are sufficient facts to support those allegations.

[7] The jury determined that the defendant failed to maintain her apartment in a clean and sanitary condition (as a result of hoarding). That is an established fact and may be used at the civil action trial. However, this fact alone is not sufficient to defeat the defendant’s conditions-based claims as a matter of law. A jury

could find that there existed certain serious defective conditions that were unrelated to the defendant’s conduct or actions (including her failure to maintain her apartment in a safe and sanitary condition), and that the plaintiffs failed to correct those conditions or maintain the premises in good repair.

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reasonable accommodation. The plaintiffs are not entitled to summary judgment on the defendant’s counterclaims that seek money damages for 1) violation of state anti-discrimination statute (and G.L. c. 93A) based on allegations of discriminatory conduct or actions other than a failure to consider or provide a reasonable accommodation, 2) conditions-based conduct or actions as set forth in Is 24 and 25 of the defendant’s answer (breach of implied warranty of habitability, G.L. c. 93A, G.L. c. 186, s. 14), and 3) conduct-based actions as set forth in Is 29, 31, 38 and 42 of the defendant’s answer (G.L. c. 186, s. 14 and G.L. c. 93A).

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End Of Decision

HOUSING COURT

JOHN CLAESSENS and MEGHAN BOBERTZ, Plaintiffs VS. VIRGIL J. AIELLO, Trustee of Virgil Aiello and Robert Aiello, 7-17 Charles Street Realty Trust, Defendant

Docket # CIVIL ACTION NO.03-C V-00540

Parties: JOHN CLAESSENS and MEGHAN BOBERTZ, Plaintiffs VS. VIRGIL J. AIELLO, Trustee of Virgil Aiello and Robert Aiello, 7-17 Charles Street Realty Trust, Defendant

Judge: /s/JEFFREY M. WINIK

FIRST JUSTICE

Date: August 24, 2007

AMENDED ORDER FOR AWARD OF STATUTORY ATTORNEY’S FEES AND COSTS, AND AMENDED ENTRY OF FINAL JUDGMENT

This matter is before the Court on Defendant’s motions to reconsider (1) the Court’s order awarding the plaintiffs statutory attorneys’ fees and costs, and (2) the Court’s post-judgment attachment order.

1. Reconsideration of Order Pertaining to Statutory Attorneys’ Fees and Costs. In an order dated July 19, 2007, I awarded the plaintiffs $18,318.50 for attorneys’ fees and $648.27 in costs.[1] The defendant, Virgil J. Aiello, did not file a written opposition to the motion and did not appear for the first hearing on the attorneys’ fee request. On August 15, 2007, I granted Aiello’s motion for leave to present his opposition to the plaintiffs’ fee request (that I will consider as a motion for reconsideration of my July 19, 2007 order).[2]

Upon reconsideration of the July 19, 2007 attorneys’ fee and costs order, I rule as follows:

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[1] Subject to the adjustments set forth below, I incorporate the findings and rulings set forth in the first order as part of this amended order.

[2] I accepted Aiello’s explanation that he was out of the country and therefore was not aware that the clerk had scheduled the attorneys’ fee motion for hearing. It was for that reason that Aiello did not attend the hearing or file an objection to the motion.

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First, Aiello argues that the plaintiffs should not be awarded attorneys’ fees and costs under G.L. c. 93A because he claims he made a reasonable written offer of settlement that was rejected by the plaintiffs. This objection has no bearing on the fee award. The trial finding that Aiello did not make a written response to the Chapter 93A demand letter may not be challenged in the context of an attorneys’ fee award motion.[3] Further, even though the plaintiffs prevailed on their Chapter 93A claim, to avoid a duplicative recovery on the conditions-based claims, I awarded damages only under G.L. c. 186, s. 14. That statute also entitles the prevailing party to reasonable attorneys’ fees and costs.[4]

Second, Aiello argues that the time spent on the case by Burton A. Nadler’s associates was excessive. I addressed this issue in my first order. I reduced the associates’ time by 85 hours. I determined that 97.15 hours provided a reasonable starting point for calculating the statutory attorney’s fee. From this baseline I then determined what percentage of time was reasonably attributable to claims and issues on which the plaintiffs prevailed. I have reviewed my order and conclude that the baseline hours are reasonable.

Third, in my first order I determined that twenty (25%) of the attorneys’ total preparation and trial hours related to claims upon which the plaintiffs did not prevail. Aiello argues that the plaintiffs spent a greater percentage of time on those unsuccessful

claims. I have reviewed the record and conclude that Aiello is correct.

Using the original 25% reduction, Attorney Nadler’s hours totaled 33.30 and the associates’ hours totaled 72.68. However, I stated in my first order that, “[w]hile these hours viewed objectively stretch the boundaries of what I may consider reasonable, I will not reduce them further given that the defendant did not oppose the fee request, either orally or in writing.” Since Aiello has now presented his objection, and I have agreed to reconsider the original order, I have decided to reset the boundaries.

Upon reconsideration, I find that forty (40%) percent of the attorneys’ total preparation and trial hours related to claims upon which the plaintiffs did not prevail.[5] That reduces

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[3] Aiello has not filed a motion under either M.R.Civ.P. 59 or 60.

[4] The plaintiffs are also entitled to statutory attorneys’ fees as the prevailing parties on the G.L. c. 186, s. 15B claim.

[5] This includes time spent on the plaintiffs’ negligence, construction eviction and emotional distress claims as well as that portion of the conditions-based claims involving the condition of the apartment prior to November 2002.

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Attorney Nadler’s “lodestar” hours from 44.4 hours to 26.64 hours, and his associates’ hours from 97.15 hours to 58.29 hours.[6]

Upon reconsideration, and giving consideration to all of the factors set forth in the first order and those set forth above, I award the plaintiffs reasonable attorneys’ fees in the amount of $14,674.88,[7] and reasonable costs of $648.27.[8]

The amended award of attorney’s fees and costs are without interest. See, Patry v. Liberty Mobilehome Sales, Inc., 394 Mass. 270, 272 (1985).

The plaintiffs’ request for additional fees for time spent on the defendant’s motion for reconsideration is DENIED.

2. Amended Order for Entry of Final Judgment. Based upon all the credible testimony and evidence presented at trial in light of the governing law, it is ORDERED

that:

1. Judgment enter for the plaintiffs on Count I (breach of contract), Count II (breach of implied warranty of habitability), Count III (breach of covenant of quiet enjoyment) and Count VII (violation of consumer protection act) of their complaint, with damages awarded under G.L. c. 186, s. 14 in the amount of $4,950.00 plus costs and a reasonable attorney’s fee.

2. Judgment enters for the plaintiffs on Count VI (violation

of G.L. c. 186, s. 15B) of their complaint in the amount of $402.18 plus costs and reasonable attorneys’ fees.

3. The plaintiffs are awarded reasonable attorneys’ fees of $14,674.88 and costs of $648.27 pursuant to G.L. c. 186, s. 14, G.L. c. 93A and G.L. c. 186, s. 15B.

4. Judgment enters for the defendant on Count IV (negligence) and Count V (constructive eviction) of the plaintiffs’ complaint.

5. Judgment enters for the plaintiffs on the defendant’s counterclaim (unpaid rent).

3. Attachment Order. On August 1, 2007, I allowed the plaintiffs’ post judgment motion for attachment in the amount of $24,318.95. Aiello has filed a motion to vacate or

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[6] I have allocated the associate hours evenly between the two associates: 29.145 hour each.

[7] 26.64 hrs x $250.00 = $6,660.00; 29.145 hrs x $150.00 = $4,371.75; 29.145 x $125.00 = $3,643.13.

[8] Aiello has not challenged the reasonableness of the costs.

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modify the attachment order and dissolve the attachment. Aiello states that he has adequate financial resources to pay a final judgment; however, he has not offered to post a bond or other security. Since I have amended the judgment, I shall reduce the attachment from $24,318.95 to $20,654.72. Aiello’s motion to vacate the attachment order and dissolve the attachment is otherwise DENIED.

cc: Burton A. Nadler, Esq.

Eliza J. Minsch, Esq.

Ethan J. Triestman, Esq.

Petrucelly & Nadler, P.C.

1 State Street, Suite 900

Boston, MA 02109

Virgil J. Aiello

7 Charles Street

Boston, MA 02114

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End Of Decision

HOUSING COURT

MARJOJO CORPORATION, Plaintiff VS. DAVID SPAGNUOLO and CHRISTOPHER SPAGNUOLO, Defendants

Docket # CIVIL ACTION NO. OS-CV-100836

Parties: MARJOJO CORPORATION, Plaintiff VS. DAVID SPAGNUOLO and CHRISTOPHER SPAGNUOLO, Defendants

Judge: JEFFREY M. WINIK

FIRST JUSTICE

Date: August 22, 2007

MEMORANDUM OF DECISION AND ORDER ON DEENDANTS’ MOTION FOR

SUMMARY JUDGMENT

Introduction

This is a civil action in which the plaintiff, Marjojo Corporation (“the Landlord”), is seeking damages arising from its letting of 140 Charles Street, Apartment #1 in Boston to the defendants, David & Christopher Spagnuolo (collectively, “the Tenants”).

The Landlord’s complaint asserts four claims: First Count (Breach of Lease); Second Count (Waste); Third Count (Misrepresentation and Breach of Lease); and Fourth Count (Attorney’s Fees and Costs). The First Count alleges that the Tenants vacated the premises before the termination of the lease and owe $4,600.00 in rent for the months of September and October 2003 plus a $1,200.00 broker’s fee. The Second Count alleges that the Tenants caused $6,127.00 worth of damage to the premises during their tenancy. The Third Count alleges that the Tenants breached their promise to paint the premises and refinish its floors in

exchange for a reduction in their rent. The Fourth Count alleges that, pursuant to the lease, the Landlord is entitled to recoup from the Tenants reasonable attorney’s fees and costs associated with this action.

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This matter is before the Court on the Tenants’ Motion for Summary Judgment. While the Tenants’ motion states that they are seeking summary judgment as to all counts set forth in the complaint, their memorandum of law advanced arguments for summary judgment only as to the claims for breach of lease and waste. Further, the Tenants conceded at the summary judgment hearing that that there existed disputed issues of fact pertaining to the waste claim. Therefore, I shall consider the Tenants’ motion as one for partial summary judgment as to the breach of lease claim only.

Facts

Undisputed Facts

Based upon the affidavits and exhibits that constitute the summary judgment record, the following facts are not in dispute.

The Landlord owns 140 Charles Street, Apartment #1 (“the premises”). On or about February 28, 2001, the Landlord and Tenants executed a written lease for the premises.[1] The monthly rent was $2,000.00. The tenant gave the Landlord a $2,000.00 security deposit. The initial lease term ran from March 1, 2001 through August 31, 2001. The lease provided that after the expiration of the initial six-month period, its terms would automatically self-extend from year to year thereafter (September 1 through August 31 of the next year). Either party could terminate the lease effective at the end of current term by giving the other party written notice of their intent to terminate the lease by June 1.[2]

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[1] The prior occupants of the premises requested that the Tenants be allowed to take over their tenancy. The Landlord agreed, and the parties entered into the lease.

[2] The lease states that the premises were leased to the Tenants “for the term of six (6) months beginning March 1, 2001 and continuing in full force and effect after the above term from year to year until either the Lessor or Lessee on or before the first day of June in any year gives to the other written notice of intention to terminate this lease on the last day of August next after the date of said notice, in which case the lease hereby created shall terminate in accordance with such notice.”

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The lease was automatically extended for the term that ran from September 1, 2001 through August 31, 2002.

In May 2002, the Landlord sent a letter to the Tenants informing them that their lease would terminate as of August 31, 2002 but that they could continue their tenancy if they agreed to an increase in the monthly rent to $2,200.00. The Tenants agreed. Accordingly, the lease term was again automatically extended for the term that ran from September 1, 2002 through August 31, 2003.

On or about April 17, 2003, the Landlord sent a letter to the Tenants informing them that the April rent, an $80.00 trash clean-up fee, and $34.20 in interest were past due. The letter further stated, “Due to the many letters of arrears that I have had to send you during your tenancy, our company will be terminating your tenancy as of August 31, 2003 by sending you notice on or before June 1, 2003 to this effect. Therefore, I suggest that you may desire to look around for another apartment commencing September 1, 2003” (emphasis added). Between April 17, 2003 and August 31, 2003, the Landlord did not send the Tenants any further letters or notices. During that period, the Landlord did not have any oral communications with the Tenants.

The Tenants vacated the premises on or about August 31, 2003 and returned their keys to the Landlord.

On or about September 4, 2003, the Landlord sent the Tenants a 14-day Notice to Quit for Non-Payment of Rent. The Notice states that the Tenants owed a total of $4,400.00 in rent for the months of August and September 2003. On or about September 15, 2003, the Tenants sent the Landlord $2,200.00 as payment of the August 2003 rent and made a written request for the return of their security deposit. The Landlord did not return the Tenants’ security deposit.

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In January 2004, the Tenants sent the Landlord a G.L. c. 93A demand letter alleging that the Landlord’s refusal to return the Tenants’ security deposit within thirty days from the date on which their tenancy terminated violated the security deposit statute, G.L. c. 186, s. 15B. The tenants demanded treble the amount of their security deposit ($6,000.00). By letter dated February 3, 2004, the Landlord rejected the Tenants’ demand.

In August 2004, the Tenants filed a civil action in this Court against the Landlord (Boston Housing Court Docket No. 04-CV-00332) (“the first action”).[3] The Tenants’ complaint asserted four claims. Count I alleged that the Landlord failed to comply with the security deposit law. Count II alleged breach of lease. Count III alleged that the Landlord committed fraud by representing to the Tenants in April 2003 that their lease was to be terminated as of August 31, 2003, and then demanding rent from them for September 2003. Count IV alleged that the Landlord’s conduct constituted unfair and deceptive business acts and practices. In its Answer, the Landlord asserted three counterclaims against the Tenants: First Count (Breach of Lease); Second Count (Waste); Third Count (Misrepresentation). The Landlord’s claims in the first action are substantially similar to the claims set forth in the first three counts of the Landlord’s complaint in this action.

In December 2005, the parties informed the Court that they had reached a settlement in the first action on all of the Tenants’

claims except the amount of attorney’s fees to be awarded to the Tenants. On or about December 20, 2005, the parties executed an agreement for judgment. A Housing Court judge signed the agreement. The agreement stipulated that judgment entered for the Tenants against the Landlord on all counts in the complaint.[4] Under the

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[3] The complaint also named Elliot Mishara as a defendant. Mishara is president of Marjojo Corp.

[4] Pursuant to the agreement for judgment, there was no finding of liability against Mishara.

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terms of the stipulated judgment, the Tenants were awarded damages in the amount of $6,000.00 plus $806.00 in costs and attorney’s fees in an amount to be determined by the Court. Finally, the stipulated judgment provided that the Landlord’s counterclaims would be dismissed without prejudice, and that the Landlord would not appeal the amount of attorney’s fees the Court awarded to the Tenants.

In the first action, the Court (Pierce, C.J.) awarded $11,950.00 in attorney’s fees to the Tenants. On January 31, 2006, the Court entered a Memorandum of Findings, Order on Summary Judgment, and the Stipulation and Agreement for Judgment that the parties had jointly prepared as an Order of the Court. The Tenants received a total of $18,756.00 in damages, including costs and attorney’s fees.

On December 20, 2005, the Landlord commenced the present civil action. The first three claims set forth in the Landlord’s complaint are substantially similar to the three counterclaims the Landlord asserted in the first action.

Discussion

Summary Judgment Standard

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party will have the burden of proof at trial is entitled to summary judgment if he demonstrates, by reference to material described in Mass. R. Civ. P. 56(c), unmet by countervailing materials, that the party opposing the motion has no reasonable expectation of proving an essential element of that party’s case.” Kourouvacilis v. General Motors Corp, 410 Mass. 706, 716 (1991).

First Count (Breach of Lease)

The First Count of the Landlord’s complaint alleges that the lease was automatically extended for a term that commenced on September 1, 2003 and ended on August 31, 2004, and that the Tenants vacated the premises at the end of August 2003 in breach of the lease. The Landlord claims that the tenants owe $4,600.00 in rent for the months of September and October 2003 plus a $1,200.00 broker’s fee incurred by the Landlord in re-letting the premises.

The Tenants argue two alternate theories in support of their request for summary judgment on the Landlord’s breach of lease claim. First, the Tenants contend that the Landlord’s breach of lease claim is barred by the doctrine of issue preclusion. Second, the Tenants argue that the undisputed evidence in the record establishes that the Landlord terminated their tenancy in accordance with the lease as of August 31, 2003. I shall address each argument separately.

1. Issue Preclusion

Under the First Count of the complaint in the current action (breach of lease), the Landlord is seeking to recoup unpaid rent and a broker’s fee that it incurred after August 31, 2003. The tenants argue that the Court’s judgment entered in the first action constituted an adjudication on the merits that the Tenants’ tenancy was terminated upon notice from the Landlord at the expiration of their lease term on August 31, 2003, and therefore the Landlord is barred from re-litigating that issue in this action.

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The doctrine of issue preclusion bars the relitigation of an issue between the same parties when three requirements are met: (1) the issue was actually litigated; (2) the issue was the subject of a valid and final judgment, and (3) the issue was essential to the judge’s decision. Jarosz v. Palmer, 436 Mass. 526, 528 (2002); Heacock v. Heacock, 402 Mass. 21, 25 (1988); Cousineau v. Laramee, 388 Mass. 859, 864 n. 4 (1983). An issue was “actually litigated” when it was “`subject to an adversary presentation and consequent judgment’ that was `not a product of the parties’ consent ….’ ” Jarosz, 436 Mass. at 531 (quoting Keystone Shipping Co. v. New England Power Co., 109 F.3d 46, 52 (1st Cir. 1997)). Put another way, an issue must be submitted for determination in order to be actually litigated. Id. at 531-532 (citing Restatement (Second) of Judgments s. 27 comment d). For the purposes of issue preclusion, a “final judgment” is one that is subject to appellate review. Id.

at 533-534. Therefore, a judgment that stems from a parties’ agreement to settle is not accorded preclusive effect. To hold otherwise “would be to impose too burdensome a cost on settlement.” Id. at 536.

The Order on Summary Judgment entered in favor of the Tenants on all of their claims in the first action was a product of the parties’ consent. None of the factual issues underlying the Tenants’ claims in the first action, including the issues of whether and when their tenancy was terminated, were submitted to the judge for his determination. Those issue were never “actually litigated” in the first action.

Therefore, I conclude that the stipulated judgment entered in the first action does not preclude the Landlord from litigating the issues of whether the Landlord’s April 17, 2003 letter constituted a notice of intent to terminate under the terms of the lease and whether the tenancy terminated as of August 31, 2003. Those issues were not actually litigated in the first action.

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2. The Tenants’ tenancy was terminated as of August 31, 2003 as a matter of law

The Tenants argue that the Landlord’s letter of April 17, 2003 constituted a legally sufficient written notice of intention to terminate the lease effective August 31, 2003, and that the Landlord never rescinded its termination notice, either orally or in writing. Acting in reliance on and in compliance with the Landlord’s termination notice, the Tenants vacated the premises by August 31, 2003. Accordingly, argue the Tenants, their obligation to pay rent under the terms of the lease ended as of August 31, 2003.

The Landlord argues that its April 17, 2003 letter did not constitute a termination notice under the terms of the lease. The Landlord argues that the April 17, 2003 letter stated only that it was the Landlord’s then current intention to give the Tenants a written notice of intention to terminate the lease at a future date on or before June 1, 2003. The Landlord contends that it never acted to terminate the lease because it never sent a second letter or notice that explicitly stated its intention to terminate the lease at the end of the lease term. Therefore, argues the landlord, the lease continued in full force and effect for a new one-year term commencing on September 1, 2003.

The Tenants’ legal argument is more persuasive.

Although the Landlord is not barred under the doctrine of issue preclusion from litigating the issues of whether and when the Tenants’ tenancy was terminated, the undisputed evidence in the summary judgment record establishes as a matter of law that the Landlord’s April 17, 2003 letter constituted “a written notice of intention to terminate this lease on the last day of August next after the date of said notice.” The undisputed evidence also establishes that the Tenants vacated and surrendered possession of the premises by the end of the lease term.

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The operative language in the lease allows either party to terminate the lease effective August 31 of each year provided that two conditions are met: (1) the party provides written notice to the other of the party’s intention to terminate the lease as of August 31 of the current lease term and (2) the written notice is given to the other party prior to June 1 of that year. The Landlord’s April 17, 2003 letter satisfies both requirements. Reasonably construed, the letter states with clarity the Landlord’s intention to terminate the lease as of August 31, 2007. The Landlord makes clear its intent when it states, “[t)herefore, I suggest that you may desire to look around for another apartment commencing September 1, 2003.”

The Landlord argues that it never sent a notice to the Tenants prior to June 1, 2003 as it indicated it would in the letter. That is of no legal significance. The April 17, 2003 letter was unequivocal. Certainly, a tenant of average intelligence would have construed the Landlord’s words to mean that the Landlord intended to terminate the lease at the end of the current lease term and wanted the tenants to leave by that date. The Landlord remained silent between April 17 and August 31, 2003. It made no effort to communicate to the Tenants that it had changed its mind with regard to it express intention to terminate the lease.

I rule as a matter of law that the Landlord terminated the Tenants’ lease effective August 31, 2007 in accordance with the lease’s termination provision. Since the undisputed evidence in the summary judgment record establishes that the Tenants vacated and surrendered possession of the premises at the end of the lease term, they had no further obligations under the terms of the lease after August 31, 2003. Specifically, they had no obligation to pay rent for the months of September and October 2003 or to reimburse the Landlord for a broker’s fee to re-let the premises thereafter.

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Accordingly, summary judgment shall enter in favor of the Tenants on the First Count of the Landlord’s complaint for breach of lease.

Conclusion

For the reasons set forth above, the Defendants’ Motion for Summary Judgment is ALLOWED as to the First Count of the Landlord’s complaint. The claims set forth in the Second, Third, and Fourth Counts of the Landlord’s complaint shall proceed to trial.

cc: Elliott I. Mishara, Esq.

872 Massachusetts Avenue

Cambridge, MA 02139

Jeffrey S. Baker, Esq.

Baker & Associates

Suite 614

101 Tremont Street

Boston, MA 02108

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End Of Decision

HOUSING COURT

CHESTNUT HILL REALTY Agent for RIDGECREST VILLAGE, Plaintiff VS. RAFAEL MORALES and MARIA MILLAN, Defendants

Docket # SUMMARY PROCESS NO. 07-SP-02782

Parties: CHESTNUT HILL REALTY Agent for RIDGECREST VILLAGE, Plaintiff VS. RAFAEL MORALES and MARIA MILLAN, Defendants

Judge: JEFFREY M. WINIK

FIRST JUSTICE

Date: August 16, 2007

FINDINGS OF FACT, RULINGS OF LAW AND ORDER OF JUDGMENT,

This is a summary process action in which the plaintiff is seeking to recover possession of the premises from the defendants for non-payment of rent. Defendant Rafael Morales filed a written answer that included affirmative defenses and counterclaims. Defendant Maria Millan did not appear for trial and was defaulted.

Based upon all the credible testimony and evidence presented at trial, and the reasonable inferences drawn therefrom, the Court finds as follows:

The plaintiff manages the 23-unit dwelling at 5114 Washington

Street, in the West Roxbury section of Boston. The defendants reside at 5114 Washington Street, Apartment 17, as tenants at will.[1] The monthly rent is $1,365.00 due on the first day of each month. The defendants have been in arrears in their rent since May 2007. They currently owe a total of $4,135.00.00 in unpaid rent. On June 18, 2007, the plaintiff served the defendants with a legally sufficient fourteen (14) day notice to quit for non-payment of rent.

Defendant Rafael Morales testified that he and defendant Maria Millan have been unable to pay the rent since he lost his job. The Court recognizes the financial difficulties the

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[1] Their lease expired on July 31, 2006. They occupied the premises as tenants at will thereafter.

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defendants are facing; however, their inability to pay the rent does not constitute a defense to the plaintiff’s claim for possession.

The defendants did not present any evidence regarding the condition of the premises. Accordingly, the defendants have not established a defense to possession under G.L. c. 239, s. 8A or a claim for damages for breach of the implied warranty of habitability or violation of G.L. c. 93A. Further, there is no evidence that the plaintiff violated any provision of G.L. c. 186, s. 15B with respect to the defendants’ last month’s rent deposit.

The plaintiff has established its case to recover possession and damages in the amount of $4,135.00.

ORDER FOR JUDGMENT

Based upon all the credible testimony and evidence presented at trial in light of the governing law, it is ORDERED that:

1. Judgment enters for the plaintiff for possession and damages in the amount of $4,135.00.

2. Execution shall issue ten (10) days from the date that judgment enters.

3. Judgment enters for the plaintiff on the defendants’ counterclaims.

cc: Earl L. Miller, Esq.

44 School Street, Suite 500

Boston, MA 02108

Rafael Morales

5114 Washington Street, Apt. 17

West Roxbury, MA 02132

Maria Millan

5114 Washington Street, Apt. 17

West Roxbury, MA 02132

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End Of Decision

HOUSING COURT

JAMES E. ANDERSON, Landlord, ANGELA ANDERSON, Agent, Plaintiff VS. BARBARA HARVEY, Defendant

BOSTON DIVISION

Docket # SUMMARY PROCESS NO. 07-SP-02551

Parties: JAMES E. ANDERSON, Landlord, ANGELA ANDERSON, Agent, Plaintiff VS. BARBARA HARVEY, Defendant

Judge: /s/ JEFFREY M. WINIK

FIRST JUSTICE

Date: August 3, 2007

FINDINGS OF FACT, RULINGS OF LAW AND ORDER OF JUDGMENT

Based upon all the credible testimony and evidence presented at trial, and the reasonable inferences drawn therefrom, the Court finds as follows:

The plaintiff, James E. Anderson, owns the four-unit dwelling at 111 Winthrop Street, in the Roxbury section of Boston. The plaintiff has owned the property for four years. The defendant, Barbara Harvey, resides at 111 Winthrop Street, Apartment 2L, subject to the terms of a written lease. She has occupied the premises since February 1, 2007. The monthly rent is $800.00 due on the first day of each month. The defendant has not paid rent due for June, July or August 2007. She currently owes a total of $2,400.00 in unpaid rent. On June 16, 2007, the plaintiff served the defendant with a legally sufficient fourteen (14) day notice to quit for non-payment of rent.

There is no evidence that the plaintiff engaged in any acts of reprisal directed against the defendant. Accordingly, the defendant has not established a defense to possession under G.L. c. 239, s. 2A or a claim for damages under G.L. c. 186, s. 18.

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I find that the plaintiff did not engage in any conduct that interfered with the defendant’s quiet use and enjoyment of the premises. I find that the plaintiff never entered the defendant’s apartment without permission. On June 15, 2007, the defendant told

the plaintiff that he could come to her apartment to collect the rent. For that purpose, during the evening of June 15, 2007, he went to the dwelling and knocked on the defendant’s front door. A friend of the defendant opened the door and allowed the plaintiff to enter. The defendant came out of her bedroom and told the plaintiff to leave. The plaintiff left.

There is no evidence that the plaintiff ever charged the defendant a late fee for late paid rent.

The plaintiff has established his case to recover possession and damages in the amount of $2,400.00.

ORDER FOR JUDGMENT

Based upon all the credible testimony and evidence presented at trial in light of the governing law, it is ORDERED that:

1. Judgment enters for the plaintiff for possession and damages in the amount of $2,400.00.

2. Execution shall issue ten (10) days from the date that judgment enters.

3. Judgment enters for the plaintiff on the defendant’s counterclaims.

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End Of Decision

HOUSING COURT

FELIX OKWESA, Plaintiff VS. RAQUEL HAYWARD, Defendant

Docket # SUMMARY PROCESS NO. 07-SP-02070

Parties: FELIX OKWESA, Plaintiff VS. RAQUEL HAYWARD, Defendant

Judge: /s/JEFFREY M. WINIK

FIRST JUSTICE

Date: July 5, 2007

FINDINGS OF FACT, RULINGS OF LAW AND ORDER OF JUDGMENT

Based upon all the credible testimony and evidence presented at trial, and the reasonable inferences drawn therefrom, the Court finds as follows:

The plaintiff, Felix Okwesa, owns the two-family dwelling at 42 West Street, in the Hyde Park section of Boston. The plaintiff has owned the property since 2001 and occupies the second floor apartment with his wife and children. The defendant, Raquel Hayward, resides at 42 West Street, Apartment 1, subject to the terms of a one-year lease. The lease term began on July 1, 2006. The monthly rent is $1,100.00 due on the first day of each month. The defendant never gave the plaintiff a security deposit or a pre-paid last month’s rent deposit. The defendant has not paid rent for March, April, May or June 2007. She currently owes a total of $4,400.00 in unpaid rent. On April 28, 2007, the plaintiff served the defendant with a legally sufficient fourteen (14) day notice to quit for non-payment of rent.

I find that the plaintiff has maintained the defendant’s apartment and common areas in good repair throughout the lease term. The plaintiff corrected a heating problem in October 2006 promptly after he was notified. Thereafter, the plaintiff did not receive any complaints from the

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defendant about heat or any other problem until after the defendant was served with the notice to quit.

I rule that the plaintiff did not breach the implied warranty

of habitability, did not interfere with the defendant’s quiet use and enjoyment of the premises, did not engage in an unfair or deceptive trade practice and did not engage in any acts of retaliation or reprisal directed against the defendant. I rule that the plaintiff did not hold a security deposit and did not violate the Security Deposit Statute, G.L. c. 186, s. 15. Finally, I rule that the defendant did not establish an affirmative defense to possession under G.L. c. 239, s. 8A or s. 2A.

The plaintiff has established his case to recover possession and damages in the amount of $4,400.00.

ORDER FOR JUDGMENT

Based upon all the credible testimony and evidence presented at trial in light of the governing law, it is ORDERED that:

1. Judgment enters for the plaintiff for possession and damages in the amount of $4,400.00.

2. Execution shall issue ten (10) days from the date that judgment enters.

3. Judgment enters for the plaintiff on the defendant’s counterclaims for breach of implied warranty of habitability, violation of G.L. c. 186, s. 14, violation of G.L. c. 186, s. 15B, violation of G.L. c. 186, s. 18 or violation of G.L. c. 93A.

cc: Felix Okwesa

42 West Street #2

Hyde Park, MA 02136

Raquel Hayward

42 West Street #1

Hyde Park, MA 02136

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End Of Decision

HOUSING COURT

PHILLIPS BROOKS SCHOOL LP, Plaintiff VS. NIYA MILLS, Defendant

Docket # SUMMARY PROCESS NO. 07-SP-02078

Parties: PHILLIPS BROOKS SCHOOL LP, Plaintiff VS. NIYA MILLS, Defendant

Judge: /s/JEFFREY M. WINIK

FIRST JUSTICE

Date: June 15, 2007

FINDINGS OF FACT, RULINGS OF LAW AND ORDER OF JUDGMENT

This is a summary process action in which the plaintiff is seeking to recover possession of the premises from the defendant for non-payment of rent.

Based upon all the credible testimony and evidence presented at trial, and the reasonable inferences drawn therefrom, the Court finds as follows:

The plaintiff, Phillips Brooks School LP, owns the three-unit dwelling at 14 Fayston Street, in the Dorchester section of Boston. The defendant, Niya Mills, resides at 14A Fayston Street, subject to the terms of a Section 8 written lease. She has lived there for over three years with her brother (age 21) and her daughter (age 4). The monthly contract rent is $1,700.00 due on the first day of each month. The defendant’s share of the monthly Section 8 rent was $7.00 through April 2007. Metropolitan Boston Housing Partnership (MBHP) is the Section 8 administrator.

By letter dated April 6, 2006, MBHP informed the plaintiff that it would be terminating the defendant from the Section 8 Rental Housing Assistance Program effective June 1, 2006, and that no further rental assistance payments would be paid beyond that date. On April 28, 2006, MBHP sent a second letter notifying the plaintiff that the defendant had filed an appeal from the decision to terminate her Section 8 assistance. In accordance with the Section 8 program regulations, the Defendant remained a participant in the Section 8 program during her appeal

– 1-

process and the plaintiff continued to receive Section 8 subsidy payments from MBHP. On March 28, 2007 (after the defendant’s appeal was denied), MBHP notified the plaintiff that the defendant was being terminated from the Section 8 Rental Housing Assistance Program effective April 30, 2007, and that MBHP would not make any further rental assistance payments beyond that date. For that reason, as of May 1, 2007, the defendant became obligated to pay the plaintiff the full monthly contract rent ($1,700.00) for her apartment. The defendant did not pay rent for May or June 2007. She owes $3,400.00 in unpaid rent.

On May 3, 2007, the plaintiff served the defendant with a legally sufficient fourteen (14) day notice to quit for non-payment of rent.

The defendant did not present any evidence that the plaintiff failed to maintain her apartment in good repair, failed to comply with the pre-paid last month rent statute or improperly charged a late fee. Accordingly, the defendant has not established a defense

to possession pursuant to G.L. c. 239, s. 8A. Further, the plaintiff is entitled to judgment on the defendant’s counterclaims for breach of the implied warranty of habitability, violation of G.L. c. 186, s. 14, G.L. c. 186, s. 15B and G.L. c. 93A.

The plaintiff is entitled to judgment for possession and damages of $3,400.00 for unpaid rent.

ORDER FOR JUDGMENT

Based upon all the credible testimony and evidence presented at trial in light of the governing law, it is ORDERED that:

1. Judgment enters for the plaintiff for possession and damages in the amount of $3,400.00.

2. Execution shall issue ten (10) days from the date that judgment enters.

3. Judgment enters for the plaintiff on the defendant’s counterclaims for breach of the implied warranty of habitability, violation of G.L. c. 186, s. 14, G.L. c. 186, s. 15B and G.L. c. 93A.

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cc: Kenneth A. Krems, Esq.

Shaevel & Krems

141 Tremont Street

Boston, MA 02111

Niya Mills

14A Fayston Street

Dorchester, MA 02121

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End Of Decision

HOUSING COURT

JOHN CLAESSENS and MEGHAN BOBERTZ, Plaintiffs VS. VIRGIL J. AIELLO, Trustee of Virgil Aiello and Robert Aiello, 7-17 Charles Street Realty Trust, Defendant

BOSTON DIVISION

Docket # CIVIL ACTION NO. 03-CV-00540

Parties: JOHN CLAESSENS and MEGHAN BOBERTZ, Plaintiffs VS. VIRGIL J. AIELLO, Trustee of Virgil Aiello and Robert Aiello, 7-17 Charles Street Realty Trust, Defendant

Judge: /s/ JEFFREY M. WINIK

FIRST JUSTICE

Date: July 19, 2007

Order for Award of Statutory Attorney’s Fee and Costs, and

Entry of Final Judgment

This matter is before the Court on Plaintiffs’ Motion for Counsel Fees, Costs and Expenses. The plaintiffs prevailed on their conditions-based claims for breach of contract (Count I), breach of implied warranty of habitability (Count II), violation of G.L. c. 186, s. 14 (Count III), and violation of G.L. c. 93A (Count VII). Because those claims arose from the same operative facts, the Court made only one award of damages under G.L. c. 186, s. 14. That claim provided the plaintiffs with the largest net recovery. See Wo Jberg v. Hunter, 385 Mass. 390 (1982). The plaintiffs also prevailed on their last month’s rent deposit claim under G.L. c. 186, s. 15B (Count VI). Under the provisions of G.L. c. 186, s. 14 (and G.L. c. 93A) and G.L. c. 186, s. 15B, the Court is authorized to award the prevailing party reasonable attorney’s fees and costs. The plaintiffs’ attorney, Burton A. Nadler, filed an affidavit that sets forth the legal work that he performed, the time he spent on the various tasks and the costs he incurred. The defendant, Virgil J. Aiello, did not file a written opposition to the motion and did not appear for the motion hearing.[1]

The Court should normally use the “lodestar” method to

calculate the amount of a statutory award of attorney’s fees. Under the “lodestar” method, “[a] fair market rate for time

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[1] The defendant is an attorney licensed to practice law in Massachusetts. Based upon his testimony at trial, it appears that he does not maintain an active law practice.

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reasonably spent in litigating a case is the basic measure of a reasonable attorney’s fee under State law as well as Federal law.” Fontaine v. Ebtec Corp., 415 Mass. 309, 325-26 (1993). However, the actual amount of the attorney’s fee is largely discretionary with the trial court judge. Linthicum v. Archambault, 379 Mass. at 388. An evidentiary hearing is not required. Heller v. Silverbranch Const. Corp., 376 Mass. 621, 630-631 (1978). In determining an award of attorney’s fees, the Court must consider “the nature of the case and the issues presented, the time and labor required, the amount of the damages involved, the result obtained, the experience, reputation and ability of the attorney, the usual price charged for similar services by other attorneys in the same area, and the amount of awards in similar cases. Linthicum v. Archambault, supra. at 381. 388-9. See Heller v. Silverbranch Const. Corp., supra. at 629 (“the standard of reasonableness depends not on what the attorney usually charges but, rather, on what his services were objectively worth . . . Absent specific direction from the Legislature, the crucial factors in making such a determination are: (1) how long the trial lasted, (2) the difficulty of the legal and factual issues involved, and (3) the degree of competence demonstrated by the attorney.”). The prevailing party is entitled to recover fees and costs for the statutory claims on which she was successful. “As a rule, where a single chain of events gives rise to both a common law and a [statutory] claim, apportionment of legal effort between the two claims is not necessary . . . [Nonetheless], effort expended on an unsuccessful common law claim brought in concert with a successful [statutory] claim should not be compensated.” Hanover Insurance Company v. Sutton, 46 Mass. App. Ct. 153, 176-77 (1999), quoting from Industrial Gen. Corp. v. Sequsia Pac. Sys. Corp., 849 F. supp. 820, 826 (D. Mass. 1994).

I have reviewed the affidavit and time records submitted by Attorney Nadler. He has been a member of the Massachusetts Bar since 1979. He has had significant litigation experience. Attorney Nadler handled pre-trial matters including the preparation of written discovery and the taking of a number of depositions. He prepared for trial and presented the plaintiffs’ claims at a one-day jury-waived trial. Attorney Nadler represented his clients with skill. On the conditions-based claims, the Court awarded the plaintiffs statutory damages (three month’s rent) of $4,950.00.[2] On the last month’s rent deposit claim (failure to pay interest on the

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[2] On the warranty claim, the plaintiffs proved actual damages (diminished value of leasehold) of $855.00. On the Chapter 93A claim, the plaintiffs proved actual and consequential damages of $1,147.00 that were trebled to $3,441.00. On the G.L. c. 186, s. 14 quiet enjoyment claim, the plaintiffs proved actual and consequential damages of $1,037.00. Statutory damages under G.L. c. 186, s. 14 provided the largest measure of damages.

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deposit) under G.L. c. 186, s. 15B, the Court awarded the plaintiffs damages of $402.18 (three times the interest due).

Considering Attorney Nadler’s experience, his demonstrated trial skills, but also taking into account the non-complex nature of the claims he presented at trial, I find that Attorney Nadler is entitled to compensation at the reasonable hourly rate of $250.00. Further, I find that Attorney Nadler’s associate, Lori A. Jodoin is entitled to compensation at the reasonable hourly rate of $150.00 and Eliza J. Minsch is entitled to compensation at the reasonable hourly rate of $125.00.

In his affidavit, Attorney Nadler identifies a total of 226.55 hours that were spent on pre-trial investigation, discovery, trial preparation and trial.[3] This represents 44.4 hours for Attorney Nadler and 182.15 associates’ hours. After reviewing the time records, and based upon my knowledge of the case, I have deducted an additional 85 hours of the associates’ pre-trial and trial time that I consider excessive or duplicative. Accordingly, 141.55 (44.4 Nadler hours plus 97.15 associate) hours provides a reasonable starting point for calculating the statutory attorney’s fee.[4]

The plaintiffs may not recover attorney’s fees for time spent on claims upon which they did not prevail. They did not prevail on their negligence or constructive eviction claims. Further, the conditions-based claims involved a brief period of their tenancy. I find that twenty-five (25%) percent of the attorneys’ total preparation and trial hours related to these claims. That reduces Attorney Nadler’s “lodestar” hours from 44.4 hours to 33.30 hours, and his associates’ hours from 97.15 hours to 72.68 hours. While these hours viewed objectively stretch the boundaries of what I may consider reasonable, I will not reduce them further given that the defendant did not oppose the fee request, either orally or in writing.

The plaintiffs have also requested that they be awarded their reasonable costs and expenses. I have reviewed Attorney Nadler’s affidavit. I find that the costs and expenses

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[3] In his affidavit, Attorney Nadler states that his time records show a total of 257.85 hours of work on the case. He deducted 26.8 hours of time as being duplicative, leaving 226.55 as his requested lodestar. I have assumed that those hours represented work performed by the associates.

[4] I have allocated the associate hours evenly between the two associates: 36.34 hour each.

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totaling $648.27 (including filing fee, service, subpoena service, postage, copying, facsimile transmission, recording fee and certified document fee) are fair and reasonable.[5]

After considering all of the factors set forth above, I award the plaintiffs reasonable attorneys’ fees in the amount of $18,318.50,[6] and reasonable costs of $648.27.

The award of attorney’s fees and costs are without interest. See, Patry v. Liberty Mobilehome Sales, Inc., 394 Mass. 270, 272 (1985).

ORDER FOR ENTRY OF FINAL JUDGMENT

Based upon all the credible testimony and evidence presented at trial in light of the governing law, it is ORDERED that:

2. Judgment enters for the plaintiffs on Count VI (violation of G.L. c. 186, s. 15B) of their complaint in the amount of $402.18 plus costs and reasonable attorneys fees.

3. The plaintiffs are awarded reasonable attorneys’ fees of $18,318.50 and costs of $648.27 pursuant to G.L. c. 186, s. 14, G.L. c. 93A and G.L. c. 186, s. 15B.

4. Judgment enters for the defendant on Count IV (negligence) and Count V (constructive eviction) of the plaintiffs’ complaint.

5. Judgment enters for the plaintiffs on the defendant’s counterclaim (unpaid rent).

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[5] I have disallowed $27.12 in legal research fees.

[6] 33.30 hrs x $250.00 = $8,325.00; 36.34 hrs x $150.00 = $6=5,451.00; 36.34 x $125.00 = $4,542.50.

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End Of Decision

HOUSING COURT

FELIX OSAGIE, Plaintiff VS. YVERN JONES, Defendant

BOSTON DIVISION

Docket # CIVIL ACTION NO.06-CV-00205

Parties: FELIX OSAGIE, Plaintiff VS. YVERN JONES, Defendant

Judge: JEFFREY M. WINIK

FIRST JUSTICE

Date: July 20, 2007

FINDINGS OF FACT, RULINGS OF LAW AND INTERIM ORDER OF JUDGMENT

In August 2002, the plaintiff commenced a summary process action against the defendant. The defendant filed an answer that included counterclaims. The defendant vacated the premises in January 2004, whereupon the defendant’s counterclaims were transferred to the civil docket.

Based upon all the credible testimony and evidence presented at trial, and the reasonable inferences drawn therefrom, the Court finds and rules as follows:

FINDINGS OF FACT

Terms of Tenancy

At all times relevant to this action (2001 – 2004), the plaintiff, Felix Osagie, owned the three-family dwelling at 8 Waumbeck Street, in the Dorchester section of Boston. The defendant, Yvern Jones, resided at 8 Waumbeck Street, Apartment 2 (second floor), from February 2001 to January 2004. She occupied the premises subject to the terms of a Section 8 lease with her son and granddaughter. The Boston Housing Authority (“BHA”) was the Section 8 program administrator. The initial Section 8 contract rent was $1,360.00 per month. Jones paid a portion of the contract rent and the BHA paid the balance.

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Jones’s sole source of income is Social Security disability (OASDI). She has not worked since 1989.

Security Deposit

Jones gave Osagie a $700.00 security deposit at the inception of the tenancy in February 2001. In her summary process answer filed on August 29, 2002, Jones for the first time notified Osagie that he had failed to keep her security deposit in compliance with the requirements of the security deposit statute. In response to that answer, on or about September 3, 2002, Osagie promptly returned the security deposit with interest ($720.00) to Jones.

Condition of Premises During Tenancy

Jones claims that a number of defective conditions existed in her apartment that remained uncorrected throughout her tenancy. I shall address each purported condition.

Rodents. While Jones may have observed a mouse in her apartment on occasion, I find that the problem did not rise to the level of a serious problem. Her apartment was not infested with rodents. The BHA inspected Jones’s apartment on a regular basis. The BHA notified Osagie to exterminate for rodents on August 23, 2001, December 18, 2001 and February 5, 2002. Osagie responded to the BHA reports and hired an exterminator. He addressed the issue to the BHA’s satisfaction. The BHA did not cite rodents as a problem in any subsequent inspection report. The City of Boston Inspectional Services Department (“ISD”) never identified rodents as a problem in any of their inspection reports.

Cockroaches. I find that Jones’s apartment was not infested with cockroaches at any time during her tenancy. ISD never identified insect infestation as a problem, and the BHA inspector directed Osagie to exterminate Jones’s apartment for cockroaches only once on November 13, 2003, at the very end of her tenancy.[1]

Bathtub Drain. Between September 2001 and December 18, 2001, the bathtub drain was clogged. As a result, water backed up in the bathtub making it very difficult for

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[1] ISD cited Jones for poor housekeeping in October and November 2002. Jones testified that for short periods of time she was unable to properly maintain her apartment. She had a stroke in the summer of 2002, and during the period from October to November 2002 she was recovering from a gallbladder operation. I credit Jones’s testimony regarding the reasons for her poor housekeeping during these periods.

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Jones and her family members to bathe. Osagie new or should have known of this serious problem as of September 29, 2001, the date of the ISD violation notice. ISD re-inspected the apartment on December 1 and 15, 2001, and determined that Osagie had not corrected the problem. Osagie finally corrected the drain prior to December 18, 2001. We know this to be true because the BHA inspector did not identify a bathtub drain problem in his December 18, 2001 inspection report. ISD closed its case on February 19, 2002.

The problem recurred in May 2002. The BHA inspector identified that the bathtub backed up when the bathroom tub and sink were in use. Osagie corrected the problem by June 4, 2002.[2] Neither ISD nor the BHA inspectors reported any further problems with the bathtub.

Toilet Leak. Neither ISD nor the BHA inspectors identified any problems with the toilet. Osagie responded promptly and corrected any problems with the toilet when requested to do so by Jones.

Missing Bathroom Tiles. On occasion a few bathroom tiles separated from the floor. This was a minor problem that had no impact on the habitability of the premises. Osagie covered any openings with concrete. While this may not have been the most aesthetically pleasing repair, it was not prohibited under the State Sanitary Code.

Bedroom Ceiling Leak. As of August 23, 2001 (first BHA inspection report), Osagie first knew or should have known that water was leaking into Jones’s bedroom. Osagie determined that water was leaking through the exterior bricks of the building. He repointed the bricks sometime during the fall of 2001. This stopped the water from entering during rainstorms. However, in its December 18, 2001 inspection report, the BHA found that damage to the ceiling (bubbling and peeling paint) caused by the water continued to exist. Osagie did not repair the ceiling until sometime in January 2002. Neither the BHA nor ISD identified any further water penetration or ceiling problems in the bedroom.

Bathroom Ceiling Leak. On May 20, 2002, the BHA inspector inspected Jones’s apartment and found that water was leaking into her bathroom through the ceiling. The

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[2] On May 21, 2002, the BHA notified Osagie that it had suspended rental subsidy payments because of this condition. On June 4, 2002, the BHA reinstated the subsidy payments because it determined that most of the corrective work had been completed.

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source of the problem was water coming from the third floor bathroom. The inspector returned to the apartment on June 4, 2002, and the ceiling leak was still present. Osagie corrected the problem prior to August 7, 2002, the date of the next BHA inspection. Although Jones testified that the bathroom ceiling continued to leak throughout her tenancy, neither the ISD inspectors nor the BHA inspectors identified another ceiling leak problem between August 2002 and December 2003. I find that the ceiling did not leak during that period. On December 22, 2003, the BHA inspector identified a new ceiling leak in the bathroom. Jones vacated the premises shortly after that inspection.

Dining Room Ceiling. Jones testified that water leaked into her dining room throughout her tenancy whenever it rained. The evidence does not support her claim of active and ongoing water penetration. First, the BHA identified stains that might have resulted from an “apparent leak” in the dining room for the first time in August 2002. Second, the BHA does not identify a similar problem in its October 2002 report. Third, an ISD inspector noted that there were stains on the dining room ceiling in only one report dated September 18, 2002. However, the inspector did not identify any active leaks. Fourth, in none of the other ISD reports and none of the BHA inspection reports was there any mention of a leak or water penetration problem in the dining room. Fifth, the photographs Jones placed in evidence (Exhibit 34) do not appear to show the type of damage that would be consistent with water penetration over a period of time.

Kitchen Sink. In September 2002, Osagie was notified that the pipe under the kitchen sink was leaking. He promptly repaired the problem. He removed the pipe and replaced it with a new pipe. Jones was without a working kitchen sink for less than twenty-four hours.

Remaining Conditions. The remaining conditions identified in the various ISD and BHA inspection reports were minor and had not had an appreciable impact upon the habitability of the premises. Osagie corrected most of the minor conditions, though at times the repairs were delayed because he and Jones had difficulty arranging mutually agreeable times when Jones would allow Osagie to the premises. There is no evidence that the doorbell to Jones’s apartment was defective or that Osagie failed or refused to repair the doorbell.

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Interaction Between Osagie and Jones

I find that Osagie never told Jones that he would evict her if she kept calling the BHA inspector to complain about her apartment. I further find that Osagie never used obscene language directed at Jones when they were alone or in the presence of other persons. I do not credit the testimony of Diane Everett who claims to have been present when Osagie used obscene language to threaten Jones with eviction.[3]

Damage to Person or Property/Status of Jones

There is insufficient evidence to establish that Jones suffered any personal injuries related in any way to her tenancy. There is insufficient evidence to establish that Jones suffered any loss or damage to property related in any way to her tenancy.

Termination of Tenancy and Reasons for Terminating Tenancy

Osagie served Jones with a notice to quit dated November 1, 2001. The notice stated that Osagie did not wish to renew the Section 8 tenancy when the lease expired in February 2002, because he needed the apartment for his personal use. At that time, Osagie lived in a rented apartment in Hyde Park and wanted to move into an apartment in the only building he owned.[4] Jones did not vacate the premises and Osagie did not commence a summary process action when the notice period ended. I find that the clear and convincing evidence establishes that Osagie, acting in good faith, intended to occupy the second floor apartment at the time he sent Jones the first notice to quit. This was the sole reason he sent Jones the first notice to quit.

On May 8, 2002, Osagie served Jones with a second notice to quit. The reason for termination set forth in the second termination notice (a sixty-day notice) was that Osagie wished to receive a higher contract rent for the second floor apartment. On June 10, 2002, Osagie requested that the BHA agree to allow him to increase the Section 8 contract rent from $1,360.00 to $1,775.00 per month. On July 16, 2002, the BHA approved the

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[3] I do not consider her to be a reliable or believable witness given that she was not truthful when describing her relationship with Jones. To bolster her credibility, Everett testified that she was not a friend of Jones. She said that they were “acquaintances.” Nonetheless, she admitted that she calls Jones her “cousin.” It is not believable to this judge that a mere acquaintance of Jones would refer to her as a “cousin.”

[4] Osagie did not purchase his home in Randolph until the end of 2002.

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requested rent increase for the unit; however, the BHA informed Osagie that Jones’s family was not large enough to be approved for the higher rent. It was for that reason that Osagie commenced a summary process action against Jones in August 2002.

I find that the clear and convincing evidence establishes that Osagie, acting in good faith, terminated Jones’s tenancy and commenced the summary process action solely because, owing to the small number of people living with her, Osagie could not collect the BHA approved contract rent for the second floor apartment.

Jones filed an answer and counterclaims. Jones vacated the

premises in January 2004, prior to trial, rendering the possession issue moot. Acting on a motion filed by Jones, the Court transferred the remaining counterclaims to the civil docket.

RULINGS OF LAW

1. Breach of Implied Warranty of Habitability (Count 1). There exists with respect to every residential tenancy an implied warranty of habitability that the premises are fit for human habitation. A landlord is in breach of this warranty where there exist defects that may materially affect the health or safety of occupants. Boston Housing Authority v. Hemingway, 363 Mass. 184, 199 (1973). A breach of the implied warranty of habitability occurs from the point in time when a landlord had notice or should have known of a substantial defect or substantial Sanitary Code violation in the apartment. For purposes of strict liability, a landlord is presumed to have knowledge of such defect or violation if it existed at the inception of the tenancy. The breach continues until the defect or violation is remedied. Berman & Sons, Inc. v. Jefferson, 379 Mass. 196 (1979) [landlord in breach of warranty from first notice of substantial Sanitary Code violations that recurred over time despite the landlord’s efforts to repair].

I rule that the defective bathtub drain, which defect existed from September 2001 (when the plaintiff was first notified of the problem) through December 18, 2001 (when ISD determined that the problem was abated), and again from May 2002 through June 4, 2002, constituted a material breach of the implied warranty of habitability. I rule that the remaining conditions that required repair during Jones’s tenancy were minor, and that Osagie repaired those conditions within a reasonable period of time.

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The fair rental value of the premises free of defects is the Section 8 contract rent of $1,360.00 per month. I find that the fair rental value of the premises was diminished by fifteen (15%) percent for September, October, November and December (1 – 18) 2001, and May and June (1-4) 2002. Accordingly, the damages for breach of the implied warranty of habitability totals $961.65.

2. Interference With Quiet Enjoyment (Count II). G.L. c. 186, s.14 (statutory covenant of quiet enjoyment) provides that any landlord who “directly or indirectly interferes with the quiet enjoyment of any residential premises” shall be liable for “actual or consequential damages or three month’s rent, whichever is greater . . .” The statute imposes liability where the landlord’s conduct causes a serious interference with the tenant’s quiet enjoyment of the premises. A serious interference is an act or omission that impairs the character and value of the leased

premises. Doe v. New Bedford Housing Authority, 417 Mass. 273, 284-285 (1994); Lowery v. Robinson, 13 Mass. App. Ct. 982 (1982). A landlord violates G.L. c. 186, s.14 where he had notice or reason to know of the serious conditions in a tenant’s apartment, and failed to take appropriate corrective measures. Al Ziab v. Mourgis, 424 Mass. 847, 850-851 (1997); Cruz Management Co. v. Thomas, 417 Mass. 782 (1994).

I rule that Osagie failed to take prompt and appropriate corrective measures during the period from September to December 2001 to correct the plumbing defect that caused water to back up into the bathtub. As a result, Jones and members of her household experienced serious difficulty when attempting to use the bathtub to bathe. Osagie’s failure to correct this problem within a reasonable period of time constituted a direct or indirect interference with Jones’s quiet use and enjoyment of her premises in violation of G.L. c. 186, s. 14.

Jones did not incur any injury, loss or monetary damage beyond contractual damages for the diminished value of the premises arising from her difficulty using the bathtub. The actual damages for this diminished value is $961.65 (15% percent abatement

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for period that defect existed). Jones is entitled to statutory damages (three month’s rent) of $4,080.00 plus costs and a reasonable attorney’s fee under G.L. c. 186, s. 14 since statutory damages are greater than Jones’s actual damages.

3. Negligent Maintenance (Count III). Jones has failed to establish a claim sounding in negligence arising from Osagie’s failure to maintain the premises. Jones has not established that she suffered any personal injuries or that she suffered the loss or damage to her property resulting from Osagie’s failure to repair the bathtub within a reasonable period of time.

4. Consumer Protection Act – Conditions (Count VIII). At all times during Jones’s tenancy, Osagie was engaged in trade or commerce and was subject to the provisions of the Consumer Protection Act, G.L. c. 93A.

A landlord engages in an unfair or deceptive act or practice where he fails to comply with the State Sanitary Code within a reasonable time after receiving notice of a violation of the code. See, Attorney General Landlord-Tenant Regulations, 940 CMR 3.17(1). A landlord violates G.L. c. 93A where his breach of the implied warranty of habitability is found by the Court to be material and substantial. Cruz Management Co. Inc. v. Thomas, 417 Mass. 782 (1994); Dorgan v. Loukas, 19 Mass. App. Ct. 959 (1985). Further, the Attorney Gener

al, acting pursuant to statutory authority, has promulgated regulations, 940 CMR s.3.17, et. seq., which identifies conduct on the part of an owner of residential property that will be deemed to be an unfair or deceptive act or practice.[5] I rule that Osagie’s failure to repair the bathtub drain in Jones’s bathroom in a timely manner constituted a material and substantial breach of the implied warranty of habitability as well as a violation of 940 CMR s.3.17 (1) (i). Accordingly, Osagie engaged in an unfair or deceptive practice in violation of G.L. c. 93A.

The measure of damages under G.L. c. 93A is calculated by determining the rental value of the unit as warranted, minus the value of the unit in its defective condition, plus any reasonable expenses incurred by the tenant as a result of the defective condition. That

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[5] 940 CMR 3.17(1) provides that:

It shall be an unfair or deceptive act or practice for an owner to … (i) Fail to comply with the State Sanitary Code or any other law applicable to the conditions of a dwelling unit within a reasonable time after notice of a violation of such code or law from the tenant or agency; . . .

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amount is then doubled or trebled if the Court finds that either (1) the landlord failed to make a reasonable offer of settlement in response to a written demand letter, or (2) the landlord’s conduct was willful or intentional. Where the defendant has withheld rent, the total amount of withheld rent is then deducted from this amount. The resulting figure is the final award of damages. Wolfberg v. Hunter, 385 Mass. 390 (1982).

Osagie had actual knowledge as early as September 2001 that the bathtub drain was defective and that Jones could bathe only with difficulty. For more than three (3) months, Osagie failed to correct the defective drain. I conclude that Osagie’s delay in completing the necessary repairs constituted willful or intentional conduct.

Jones did not incur any consequential damages. Her actual damages are $961.65.[6] Since Osagie’s conduct was willful or intentional, I shall treble the damages under G.L. c. 93A to $2,884.95.

5. Cumulative Damages. Jones is not entitled to recover cumulative damages arising from the same facts under every theory of recovery, but she is entitled to recover damages under the theory, which results in the largest award of damages. Wolfberg v. Hunter, 385 Mass. 390 (1982). Jones’s warranty, Chapter 186, s.14 and conditions-based Chapter 93A claims arise from the same facts and involve the same damages. I shall award her damages under G.L. c. 186, s.14 since that statute provides her with the largest recovery.

6. Retaliation (Count IV). A tenant may recover damages under G.L. c. 186, s.18 if the landlord’s act of commencing the summary process action or serving the tenant with a notice of termination upon which the action is based, was in retaliation for, among other things, the tenant’s reporting a violation or suspected violation of law to a health or building department, or reporting a violation or suspected violation of law in writing to the landlord as provided in G.L. c. 186, s.18. Under Section 18, “the receipt of any notice of termination of tenancy, except for nonpayment of rent . . . within six months after the tenant has [complained to ISD or complained in writing to the landlord about a violation

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[6] The actual damages (diminished value of leasehold) are the same as those for breach of the implied warranty of habitability and violation of G.L. c. 186, s.14.

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or suspected violation of the sanitary code] shall create a rebuttable presumption that such notice or other action is a reprisal against the tenant for engaging in such activity.”

Jones is entitled to the presumption of retaliation with respect to both the November 1, 2001 and the May 8, 2002 notices to quit. This is because Osagie served the notices to quit within six months of his receipt of written inspection reports from ISD and the BHA.[7]

I rule that Osagie has rebutted the presumption of retaliation with clear and convincing evidence that he did not terminate Jones’s tenancy as an act of reprisal. The sole reason Osagie served the November 1, 2001 notice was because he wanted Jones’s apartment for his personal use. The sole reason Osagie served the May 8, 2002 notice was because he wanted to collect a higher rent that was ultimately approved by the BHA. Osagie would have taken these actions even if Jones had not complained to ISD and the BHA about her apartment.

Accordingly, Jones has not established a claim for damages under G.L. c. 186, s. 18.

7. Infliction of Emotion Distress (Count V). The Court never allowed Jones’s motion to amend her complaint to add this count. Nevertheless, I rule that Jones failed to establish that Osagie (1) “. . . intended to inflict emotional distress or that he knew or should have known that emotional distress was the likely result of his conduct …”; (2) that Osagie’s “conduct was extreme and outrageous, beyond all possible bounds of decency, and was utterly intolerable in a civilized community . . .”; (3) that Osagie’s actions were the cause of Jones’s distress; and (4) that Jones’s distress “was severe and of a nature that no reasonable man could be expected to endure it.” Agis v. Howard Johnson, 371 Mass. 140, 144-145 (1976). Accordingly, Jones has not established a claim for intentional infliction of emotional distress.

8. Discrimination (Count VI). Jones has not established that Osagie discriminated against her in any manner because of her disability. Osagie did not harass Jones, did not disable her doorbell, and did not fail to repair the doorbell. Osagie did not treat Jones differently from his other tenants. There is no evidence that Jones ever asked Osagie for

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[7] Osagie received ISD inspection notices in September and December 2001. He received BHA inspection notices in February, March and April 2002.

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any modification in her physical dwelling or the terms of her

tenancy because of her disability.

9. Security Deposit Statute (Count VII). The security deposit statute, G.L. c. 186, s. 15B (2) (a), provides that “if the lessor fails to pay any interest to which the tenant is then entitled within thirty days after the termination of the tenancy, the tenant upon proof of same . . . shall be awarded damages in an amount equal to three times the amount of the interest to which the tenant is entitled.” Osagie returned Jones’s security deposit together with all accrued interest upon demand while Jones remained in possession of the premises. Accordingly, Osagie did not violate G.L. c. fl 86, s. 15B (2) (a).[8]

10. Consumer Protection Act – Security Deposit Interest (Count VIII). It is an unfair or deceptive practice for an owner to “fail to pay interest, at the end of each year of the tenancy, on any security deposit held for a period of one (1) year or longer from the commencement of the tenancy as required by [the security deposit statute].” 940 CMR s.3.17 (4) (c).

Osagie did not pay interest to Jones on his security deposit that accrued from February 2001 through January 2002. During that period, the accrued interest (at 5% per year) totaled $35.00.

I rule that Osagie’s failure to pay Jones interest that had accrued on the security deposit from February 2001 through January 2002 constituted a technical violation of Chapter 93A. Osagie returned Jones’s security deposit together with all accrued interest in September 2002. Accordingly, Jones has not suffered any monetary loss and is entitled only to nominal statutory damages of $25.00.

INTERIM ORDER FOR JUDGMENT

Based upon all the credible testimony and evidence presented at trial in light of the governing law, it is ORDERED that:

1. Judgment enter for defendant/plaintiff-in-counterclaim on Count I (breach of implied warranty of habitability), Count II (breach of covenant of quiet

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[8] However, Osagie’s failure to pay interest when due did violate G.L. c. 93A. See, infra.

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enjoyment) and Count VIII (violation of consumer protection act) of her amended counterclaims, with damages awarded under G.L. c. 186, s. 14 in the amount of $4,080.00 plus costs and a reasonable attorney’s fee.

2. Judgment enters for the defendant/plaintiff-in-counterclaim on Count VIII (violation of G.L. c. 93A – security deposit interest) of her amended counterclaims in the amount of $25.00 plus costs and reasonable attorney’s fees.

3. Judgment enters for the plaintiff on Count III (negligence), and Count IV (retaliation), Count V

(emotional distress), Count VI (discrimination) and Count VII (security deposit statute) of defendant/plaintiff-in-counterclaim’s amended complaint.

4. Within twenty (20) days after the issuance of this Interim Order, the defendant/plaintiff-in-counterclaim may file with this Court a motion for counsel fees, costs and expenses in accordance with the procedure prescribed in Yorke Mgmt. v. Castro, 406 Mass. 17, 20 (1989).

5. Final judgment shall enter on all claims after statutory attorney’s fees, costs and expenses are assessed.

End Of Decision

HOUSING COURT

CORCORAN MANAGEMENT COMPANY, INC., agent for BOSTON HOUSING AUTHORITY VS. CHUCKEENA GOLSTON

BOSTON DIVISION

Docket # SUMMARY PROCESS NO. 07-SP-01525

Parties: CORCORAN MANAGEMENT COMPANY, INC., agent for BOSTON HOUSING AUTHORITY VS. CHUCKEENA GOLSTON

Judge: /s/JEFFREY M. WINIK

FIRST JUSTICE

Date: May 30, 2007

FINDINGS OF FACT, RULINGS OF LAW AND ORDER OF JUDGMENT

This is a summary process action in which the plaintiff is seeking to recover possession of the premises from the defendant. The plaintiff alleges that the defendant engaged in illegal conduct that constituted a violation of her public housing lease. The defendant denies the allegations.

Based upon all the credible testimony and evidence presented at trial, and the reasonable inferences drawn therefrom, the Court finds as follows:

The plaintiff, Boston Housing Authority (“BHA”), owns the Commonwealth public housing development in the Brighton section of Boston. Corcoran Management Company, Inc. manages the development for the BHA. The residential building at 14 Fidelis Way is part of the Commonwealth development. The defendant, Chuckeena Golston, resides at 14 Fidelis Way, Apartment 466, subject to the terms of a BHA public housing lease. She lives alone and has occupied her apartment since May 2005.[1]

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[1] BHA transferred the defendant to the Fidelis Way apartment. For the prior six years the defendant lived at a BHA development in Charlestown. There is no evidence that the BHA had any problems with the defendant during that six-year period.

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Section 8(J) of the BHA lease provides that the resident must “refrain from engaging in . . . any criminal or illegal activity including: (1) any criminal, illegal or other activity which threatens the health, safety, or right to peaceful enjoyment of public housing premises, by another resident or a BHA employee . . .” Section 9(B)(8)(a) states that the BHA may terminate the lease for the following reason: “Commission by the resident . . . of (a) any criminal or other activity which threatens the health or safety of another resident or a BHA employee, or which threatens their rights to peaceful enjoyment of public housing premises . . .”

After receiving notice of an incident that allegedly occurred on May 17, 2006, the BHA’s property manager sent the defendant a private conference notice. The defendant attended the private conference with the manager but they were unable to resolve the matter. On May 24, 2006, the BHA served the defendant with a notice to quit for cause. The factual statement (that was served with the notice to quit) states as grounds for eviction that on May 15 and 17, 2006, the defendant engaged in “illegal activity, arrest on property, A & B w/ deadly weapon (knife).”[2] The notice describes the actions as “fighting on property, threats of violence, pulling out a knife on a person.” The defendant responded by requesting a grievance hearing. On July 12, 2006, the BHA grievance panel voted to allow the BHA to proceed with the eviction. In its ruling, the grievance panel provided as the factual basis for its decision that “due to the facts Ms. Golston was arrested on BHA’s property and is having fights with resident’s guest the panel voted to allow the BHA to proceed to court to resolve this issue.” The grievance panel decision referred to an incident involving only one guest. I find that the grievance panel’s decision was based upon the May 17 incident. The defendant then filed an appeal from the grievance panel’s decision. The hearing officer conducted a hearing on February 16, 2007. In a decision dated March 30, 2007, the hearing officer upheld the grievance panel’s decision. The hearing officer ruled with specificity that the defendant’s conduct during the May 17 incident (involving a fight with another tenant’s guest) constituted conduct that “disturbed the peace on the premises” in violation of her lease obligations. As was the case with the grievance panel, the hearing officer’s decision authorizing the BHA to proceed with the eviction process was based upon the May 17,

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[2] While the factual statement is not clear, it appears that the May 15 date refers to an incident involving the defendant and Brenda West.

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2006 incident between the defendant and one guest. The BHA then commenced this summary process action.

Gertrude Matthews resides in a BHA apartment at 14 Fidelis Way. Freda Matthews is Gertrude Matthews’s daughter. Freda is not a BHA tenant. Janeeda Matthews is Gertrude Matthews’s granddaughter. Janeeda is not a BHA tenant. Freda is Janeeda’s aunt. Brenda West is Janeeda Matthews’s god-parent and is a friend of Gertrude Matthews.

On May 17, 2006, Freda and Janeeda were visiting Gertrude Matthews at her apartment.

As an initial matter, I rule as a matter of law that this eviction action can proceed based solely upon the specific allegations of lease violations as authorized by the grievance panel and as affirmed by the hearing officer in his appeal decision. Specifically, I rule that the BHA’s claim for possession is based upon an incident that occurred on May 17, 2006, involving a physical altercation between the defendant and Freda Matthews. The grievance panel did not authorize the BHA to proceed with the eviction action based upon any other incident involving the defendant and a tenant or a tenant’s guest including, Brenda West.[3]

On May 17, 2006, there was a physical altercation between the defendant and Freda Matthews in front of 14 Fidelis Way. The defendant testified that Freda attacked her and that she fought back in self-defense. The BHA subpoenaed Janeeda Matthews as its only eyewitness to the altercation. Janeeda testified that on May 17, 2006, she and her daughter were visiting Gertrude Matthews at 14 Fidelis Way. Janeeda and her daughter left Gertrude’s apartment to go outside. She bumped into Freda in the elevator. When they arrived at the ground floor they left the elevator and Freda rang the defendant’s doorbell. Apparently speaking through a voice box, Freda said to the defendant, “come down and I’ll bust your ass.” In a display of bad judgment, the defendant came downstairs. Janeeda testified that Freda was drunk (Janeeda had seen Freda drinking alcohol prior to the incident) and initiated the physical altercation with the defendant.

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[3] West testified that she was a guest visiting Gertrude Matthews (whose apartment is next to the defendant’s apartment) on May 15, 2006, when the defendant entered Gertrude’s apartment. The defendant asked Gertrude for permission to use her telephone. Gertrude said yes, and the defendant went into Gertrude’s bedroom to use the telephone. According to West, the defendant walked from the bedroom into the living room, dropped the phone and hit West on her head as she passed on her way to the front door. The defendant testified that she never hit West. The BHA grievance panel did not authorize the BHA to proceed with an eviction action against the defendant based upon this incident; however, I include my factual findings should it be determined that the BHA could proceed based on the allegations. I find that the defendant did touch West in

passing, but I rule that her conduct did not constitute illegal or any other activity that threatened the health, safety or quiet enjoyment of West or any other person.

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Freda and the defendant exchanged punches. Janeeda observed blood. The defendant testified that she never had a knife or any other weapon in her hands or on her person. Janeeda testified that she did not see a knife or any other weapon in the defendant’s hand. Janeeda tried to separate Freda and the defendant. The defendant pushed Janeeda away. In the meantime, someone called the police. When the police arrived the defendant was screaming. The police arrested the defendant when she refused to calm down. The defendant testified that the police released her that day.

Based upon the uncontested testimony of Janeeda and the defendant, I find that Freda, while inebriated, was the aggressor and initiated the fight with the defendant. I find that the defendant did not have or threaten to use a knife or any other weapon. The defendant was defending herself against Freda’s assault when Janeeda came between them in an effort to stop the fight. Though the defendant pushed Janeeda, I find that such conduct resulted from the defendant’s reflexive and inadvertent movements while defending herself from Freda’s assault.

I find and rule that the defendant did not engage in any criminal or illegal activity which threatened Freda’s, Janeeda’s or any other persons’ health, safety or right to peaceful enjoyment of public housing premises.

I rule that the defendant did not engage in conduct that violated Section 8(J) or 9(B)(8)(a) of her public housing lease.

For these reasons, I conclude that the BHA has not established its case to recover possession of the premises from the defendant.

ORDER FOR JUDGMENT

Based upon all the credible testimony and evidence presented at trial in light of the governing law, it is ORDERED that judgment enters for the defendant on the plaintiff’s claim for possession.

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End Of Decision

HOUSING COURT

SHORELINE CORPORATION as managing agent for PIANO CRAFT GUILD ASSOCIATES LP VS. FRED ALLEN

BOSTON DIVISION

Docket # SUMMARY PROCESS NO. 07-SP-01519

Parties: SHORELINE CORPORATION as managing agent for PIANO CRAFT GUILD ASSOCIATES LP VS. FRED ALLEN

Judge: /s/JEFFREY M. WINIK

FIRST JUSTICE

Date: May 31, 2007

ORDER

This matter is before the Court on the plaintiff’s (1) Motion to Dismiss Counterclaims and to Strike Defenses, and (2) Motion for Dismissal and Final Judgment for Failure to Respond to Discovery or, in the Alternative, Motion to Compel Response to Discovery. The defendant opposes the motions.

1. Motion to Dismiss Counterclaims. A tenant is not entitled as of right to assert counterclaims in a summary process action under G.L. c. 239, s. 8A where, as is the case here, the landlord’s claim for possession is based upon allegations of fault (other than non-payment of rent) on the part of the tenant.[1]

In this case the plaintiff claims that the defendant assaulted a security guard employed by the plaintiff, and that such conduct violated the terms of his lease. The defendant denies the allegations.

Since the defendant cannot assert counterclaims in this cause eviction case, the plaintiff’s motion is ALLOWED. It is ORDERED that the defendant’s counterclaims for retaliation,

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[1] G.L. c. 239, s.8A provides that where a landlord commences a summary process action to recover possession of the premises for non-payment of rent ” . . . or where the tenancy has been terminated without fault of the tenant or occupant, the tenant . . . shall be entitled to raise, by defense or counterclaim, any claim against [the landlord] …” that relates to the property or tenancy.

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discrimination, violation of security deposit statute, and violation of G.L. c. 186, s. 14 be severed and transferred to the civil docket.

The defendant may pursue the defenses he raised in his answer pertaining to service of the notice to quit, defective summons and complaint, failure to comply with subsidized housing rules, retaliation and failure to make reasonable accommodation (so long as it relates to the conduct upon which the eviction action is based).

2. Motion to Dismiss/Compel. The plaintiff’s Motion to Dismiss is DENIED; however, the plaintiff’s Motion to Compel Response to Discovery is ALLOWED. The defendant must deliver his answers to all discovery (interrogatories and document requests) to the plaintiff’s attorney by June 8, 2007.

SO ORDERED.

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End Of Decision

HOUSING COURT

MTGLQ INVESTORS LP VS. STANFORD COLE and ANNETTE WHITE-COLE

BOSTON DIVISION

Docket # SUMMARY PROCESS NO. 07-SP-00189

Parties: MTGLQ INVESTORS LP VS. STANFORD COLE and ANNETTE WHITE-COLE

Judge: /s/JEFFREY M. WINIK

FIRST JUSTICE

Date: May 22, 2007

FINDINGS OF FACT, RULINGS OF LAW AND ORDER OF JUDGMENT

This is a summary process action in which the plaintiff is seeking to recover possession of the premises from the defendants after their ownership interest in the property was foreclosed.

The defendants asserted counterclaims against the plaintiff for retaliation, discrimination, deceit and breach of contract. The defendants claim that the plaintiff engaged in a “mortgage scam.” On March 15, 2007, I allowed the defendants’ Motion to Stay Proceedings. I explained to the defendants that they could not challenge the record title in a summary process action. However, I agreed to give them a short stay to enable them to seek injunctive relief from a court of competent jurisdiction (Land Court or Superior Court) with respect to any claims they might have involving the underlying mortgage and foreclosure. The case was continued for trial to April 26, 2007.[1]

Based upon all the credible testimony and evidence presented at trial, and the reasonable inferences drawn therefrom, the Court finds as follows:

The defendants, Stanford Cole and Annette White-Cole, were the owners of a residential property at 27 Joan Road, in the Hyde Park

section of Boston. On November 20, 2006, plaintiff MTGLQ Investors LP (the mortgagee) foreclosed on the property after the defendants defaulted

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[1] The defendants did not commence an action or seek relief in any other court.

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on their mortgage loan obligations.[2] As a matter of law, the defendants are tenants at sufferance with respect to the plaintiff. See, Burke v. Willard, 243 Mass. 547 (1923); Margosian v. Markarian, 288 Mass. 197 (1934). The plaintiff never accepted money from and never entered into a tenancy with the defendants. On December 4, 2006, the plaintiff served the defendants with a notice to quit and vacate the premises. The defendants have refused to vacate the premises. The plaintiff did not present any evidence as to the fair rental value of the premises for use and occupation.

The plaintiff has established its case to recover possession of the premises from the defendants.

The defendants have not presented any evidence to support their claims that the plaintiff (the third assignee of the mortgage and note) breached any contract with the defendants or engaged in any acts of retaliation, discrimination, or deceit.[3]

ORDER FOR JUDGMENT

Based upon all the credible testimony and evidence presented at trial in light of the governing law, it is ORDERED that:

1. Judgment shall enter for the plaintiff for possession.

2. Execution for possession shall issue on June 15, 2007.

3. Judgment shall enter for the plaintiff on the defendants’ counterclaims for breach of contract, retaliation, discrimination and deceit.

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[2] The originating mortgagee was Long Beach Mortgage Company. That company assigned its interest in the mortgage and note to Washington Mutual Bank, which in turn assigned said mortgage and note to Goldman Sachs Mortgage Company. Goldman Sachs Mortgage Company assigned this interest to Plaintiff MTGLQ Investors LP shortly before the foreclosure.

[3] The Court makes no findings with respect to the propriety or legality of any acts or conduct of the originating mortgagee or its agents.

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End Of Decision

HOUSING COURT

PHYLLIS DUNN VS. DARIAN HENDRICKS

BOSTON DIVISION

Docket # SUMMARY PROCESS NO. 05-SP-03962

Parties: PHYLLIS DUNN VS. DARIAN HENDRICKS

Judge: /s/JEFFREY M. WINIK

FIRST JUSTICE

Date: May 18, 2007

FINDINGS OF FACT, RULINGS AND ORDERS RESPECTING MOTION TO DISGORGE

This matter is before the Court on the Joint Motion of Emil Ward and Harvey S. Shapiro for Order to Disgorge Escrowed Funds and to Stay Small Claims Proceedings Pending Compliance. The Court conducted a hearing on May 1, 2007. Attorneys G. Emil Ward, Harvey S. Shapiro, Steven S. Kim, and Shannon L. McLaughlin were present at the hearing. After a review in open Court of the tape of the August 1, 2006 motion hearing in this case before Judge Sullivan, and giving careful consideration to the representations of counsel, their legal arguments and their written submissions, the Court makes the following Findings, Rulings, and Orders:

1. Attorney Harvey S. Shapiro has represented the Defendant, Darian Hendricks (“the Tenant”), continuously since this case commenced in 2005. Attorney G. Emil Ward represented the plaintiff, Phyllis Dunn (“the Landlord”), in this action until he withdrew as counsel in January 2006. Attorneys Steven S. Kim and Shannon L. McLaughlin entered appearances on behalf of the Landlord in January 2006, and have represented her continuously since then.

2. During the pre-trial stage of this summary process matter, the Tenant deposited the sum of $6,400.00 in withheld rent with the Clerk of this Court, pending the resolution of his dispute with the Landlord and the Court’s determination as to how the funds should be distributed.

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3. After conducting a trial on the merits, Judge Sullivan issued his written Findings of Fact, Rulings of Law and Order for Judgment on June 19, 2006. Judge Sullivan awarded the Tenant damages for breach of the implied warranty of habitability ($2,480.00), violation of the security deposit statute ($620.00) and violation of the reprisal statute ($3,200.00). Judge Sullivan also determined that the Tenant had not paid $20,800.00 in rent. In accordance with the provisions of G.L. c. 239, s.8A, the Court awarded possession to the Tenant provided that within seven (7) days he deposited $8,100.00 with the Housing Court Clerk (unpaid rent minus the $6,400.00 Clerk-held escrow, minus the counterclaim damages). The Order stated that if the Tenant did not deposit $8,100.00 with the Housing Court Clerk within seven (7) days, then judgment would automatically enter in favor of the Landlord for possession and unpaid rent damages of $8,100.00. Judge Sullivan further ordered that the Landlord “pay directly to defendant’s counsel a reasonable attorney fee as shall be determined by the court after the filing of defendant’s fee affidavit.”

4. Finally, Judge Sullivan’s June 19, 2006 Order for Judgment directed the Clerk-Magistrate to release the escrowed funds to the Landlord whether or not the Tenant deposited additional funds into Court in accordance with G.L. c. 239, s. 8A.

5. The Tenant chose not to make the further payment to the Housing Court Clerk and vacated the premises on or before June 30, 2006. Accordingly, judgment entered for the Landlord pursuant to Judge Sullivan’s Order.

6. Subsequent to the Court’s June 19, 2006 decision and the Judgment based thereon, the tenant timely filed a Motion to Alter or Amend Judgment, and ultimately filed an appeal of certain matters, which appeal is now pending in the Appeals Court as Docket No. 2006-P-1964.

7. On June 28, 2006, the Tenant filed a “Motion to Stay Disbursement of Escrowed Funds” (“Motion to Stay”). Through that

motion the Tenant sought to have the Court stay the part of Judge Sullivan’s June 19, 2006 Order that provided for the Clerk-Magistrate to disburse the escrowed funds to the Landlord. The Tenant requested that the Court order the escrowed funds to remain on deposit with the Clerk-Magistrate “subject to the Landlord’s obligation to satisfy her liability for the attorney’s fees to be paid to the Defendant’s counsel” once they were determined, as the Court had directed in its June 19, 2006 decision.[1]

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[1] The docket reflects that a “Motion for Assessment of Attorney’s Fees and Costs” and related materials were simultaneously filed and served with the Motion to Stay Disbursement of the Escrowed Funds.

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8. In the Motion to Stay, the Tenant’s attorney, Harvey S. Shapiro, also noted that the escrowed funds were arguably subject to an attorney’s lien previously asserted by the Landlord’s former counsel, G. Emil Ward, through a Notice of Attorney’s Lien dated January 17, 2006 and filed in this matter on that same date. The Plaintiffs successor counsel, Steven S. Kim and Shannon L. McLaughlin (from the law firm Kim & McLaughlin LLP) acknowledged at the May 1, 2007 hearing that prior to the events described herein they were in fact aware that Attorney Ward had filed an attorney’s lien against the proceeds of any recovery by the Landlord.

9. Attorney Kim further represented that he went twice to the Housing Court Clerk’s office following the Court’s June 19, 2006 decision, and prior to his receipt of “Defendants’ Motion to Stay,” in order to obtain or arrange for a distribution of the escrowed monies.

10. At a hearing before Judge Sullivan on August 1, 2006, attended by Attorneys McLaughlin, Ward and Shapiro, the Judge entertained a number of motions in addition to the Tenant’s Motion to Stay, including the Tenant’s timely filed Motion to Alter or Amend Judgment, Attorney Shapiro’s Motion for Assessment of Attorney’s Fees and Costs, and Attorney Ward’s Motion to Establish Amount and Priority of Attorney’s Lien.

11. At the August 1, 2006 hearing, Attorney Ward was informed by the Landlord’s attorney, Ms. McLaughlin, that the Landlord (Ward’s former client) was disputing his fees and requesting arbitration before the Massachusetts Bar Association’s Fee Arbitration Board. Based solely on the foregoing, at the August 1 hearing, Attorney Ward withdrew his Motion to Establish Amount and Priority of Attorney’s Lien with the express understanding that the Court would not then rule on the competing claims to the escrowed funds held by the Clerk-Magistrate, and with the possibility that Attorney Ward would make no claim against the escrowed funds at all depending on the results of the arbitration with his former client or other disposition of their dispute.

12. As was plainly evident from the recording of the August 1,

2006 proceeding, Attorneys Ward and McLaughlin stipulated to Attorney Shapiro’s “Motion to Stay,” which in turn was “allowed” by Judge Sullivan in a handwritten endorsement on the motion and docketed by the Clerk.

13. Attorney McLaughlin told Attorney Kim what had happened at the hearing on August 1, 2006, including the fact that Judge Sullivan had allowed the Tenant’s Motion to Stay.

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14. Attorneys Kim and McLaughlin related at least two additional communications with the Clerk’s office after the Court’s August 1, 2006 allowance of the Defendant’s Motion to Stay, further described below.

15. Attorney Kim represented to the Court that on at least one occasion when he contacted the Clerk’s office subsequent to August 1, 2006, he asked a Clerk if there was anything in the record that prevented his client from obtaining the escrowed funds pursuant to the Court’s original June 19, 2006 Order, and was told that there was not.

16. Attorney Kim did not assert, however, that he had specifically directed the attention of whomever he spoke with in the Clerk’s office to the Court’s August 1, 2006 allowance of the Tenant’s Motion to Stay.

17. Attorneys Kim and McLaughlin acknowledged that subsequent to the Court’s August 1, 2006 allowance of the Motion to Stay and the August 8, 2006 Attorney’s Fee Award Order, they directed and instructed the Landlord to go to the Clerk’s office to obtain the escrowed funds. The docket reflects that on September 25, 2006, the Clerk-Magistrate (or someone in his office) released the $6,400.00 escrowed funds to the Landlord.[2]

18. At the May 1, 2007 hearing, Attorney McLaughlin represented to the Court that at the time of the August 1, 2006 hearing, it was her understanding that Judge Sullivan had allowed the Tenant’s Motion to Stay only until the Court acted on the Tenant’s Motion for Assessment of Attorney’s Fees and Costs. In an Order dated August 8, 2006, Judge Sullivan awarded the Tenant $9,853.63 in attorneys’ fees and costs. I find that Attorney McLaughlin’s understanding is not supported by anything that was said during the August 1, 2006 motion hearing (based upon my review of the taped hearing record), anything stated in the written motion, or in Judge Sullivan’s written endorsement on the motion.

19. It is evident from the taped record of the August 1, 2006 hearing, and from the written motions that were heard that day, that the purpose of the stay was to preserve the escrowed funds (1) until the Landlord satisfied her obligation to pay the Tenant’s attorney any attorney’s fees and costs awarded by the Court, and (2) until the amount, if any, of the lien asserted by Attorney Ward was determined through the arbitration proposed by the Landlord. This was unquestionably the reason why Attorney Ward withdrew his Motion to Establish Amount and Priority of Attorney’s Lien in the Housing Court, and his assent in turn to the

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[2] The record does not disclose why the Clerk’s office ignored Judge Sullivan’s Stay Order issued on August 1, 2006.

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Tenant’s Motion to Stay. It is difficult to imagine that any attorney present at the August 1, 2006 hearing could have understood otherwise.[3]

20. There is no reasonable or logical way of reading the Court’s August 1, 2006 Order as authorizing the distribution of the escrowed funds to the Landlord as soon as the Court determined the amount of the attorney’s fee award to be made to the Tenant’s attorney and without even giving consideration to whether it should be applied to satisfy that award. Such a reading would also ignore Attorney Ward’s interest in the funds being available to satisfy his competing claim on the funds, made plain by his participation in the August 1, 2006 hearing.

21. Based upon the foregoing, the Court concludes that the Clerk’s office mistakenly in the absence of a judicial order disbursed $6,400.00 in escrowed funds to the Landlord at her request.

22. The Court finds that the Landlord knew or should have known (either prior to September 25, 2006 or shortly thereafter), based upon knowledge that may be imputed to her through her counsel, that in light of Judge Sullivan’s August 1, 2006 Stay Order, the Clerk had mistakenly released the escrowed funds to her. The Landlord must return these funds to the Clerk-Magistrate forthwith.[4]

Accordingly, it is ORDERED that:

1. Plaintiff/Landlord Phyllis Dunn pay to the Clerk’s office of the Housing Court Department, Boston Division, within ten (10) days of the date of this Order, the sum of $6,400.00 to be held by the Clerk subject to further order of the Court.

2. Should the payment not be made within the ten (10) days as so ordered because the Plaintiff/Landlord claims that she does not have the funds to do so, she shall file with the Court and serve on Attorneys Shapiro and Ward, full and complete answers and responses to the attached Interrogatories and Document Requests within the same ten (10) days.

3. Should the Plaintiff/Landlord fail to timely make the payment though possessing the means or ability to do so and/or fail to timely, fully and accurately provide the information required by this Order in the absence of such

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[3] On December 29, 2006, the parties were advised that the arbitration regarding Attorney Ward’s fee would take place on January 18, 2007.

[4] Attorneys Kim and McLaughlin represented to the Court at the hearing on May 1, 2007 that they had received no payment for

their efforts on behalf of their client since at least March 2006, and were not paid for the trial that occurred over a two-day period in May 2006.

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payment, the Tenant or Attorney Ward may file an appropriate motion or complaint to enforce this Order.

4. Furthermore, should the Plaintiff/Landlord fail to timely make the payment required by this Order, Attorneys Kim, McLaughlin, Shapiro, and Ward may submit to this Court within sixty (60) days of the date of this Order, memoranda addressing the basis of any liability of Attorneys Kim and McLaughlin for the improper distribution of the escrowed funds and the appropriate remedies under those circumstances. Either party may request a further evidentiary hearing within thirty (30) days of the date of this Order with respect to matters pertaining to the conduct of Attorneys Kim and McLaughlin.[5]

5. Attorneys Kim and McLaughlin are ORDERED to forthwith serve a copy of these Findings of Fact, Rulings, and Orders Respecting Motion to Disgorge on their client, Phyllis Dunn, and if they determine that they have a conflict of interest with the Plaintiff, to so apprise her.

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[5] The Court at this time makes no findings of fact or rulings of law with respect to whether Attorneys Kim and McLaughlin engaged in conduct that violated any Court Order, ethical rule, procedural rule, or code of conduct.

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End Of Decision

HOUSING COURT

JEAN CORDON VS. MARTINA J. SMITH

BOSTON DIVISION

Docket # SUMMARY PROCESS NO. 07-SP-03588

Parties: JEAN CORDON VS. MARTINA J. SMITH

Judge: /s/Jeffrey M. Winik

Associate Justice

Date: October 17, 2007

ORDER FINDINGS OF FACT, RULINGS OF LAW AND ORDER OF JUDGMENT

Based upon all the credible testimony and evidence presented at trial, and the reasonable inferences drawn therefrom, the Court finds as follows:

The plaintiff, Jean Cordon, owns the three-family dwelling at 27 Abbot Street, in the Dorchester section of Boston. The plaintiff

has owned the property for four years. The defendant, Martina J. Smith, resides at 27 Abbot Street, Apartment 3, subject to the terms of a written lease. She has occupied the premises since February 2007. The monthly rent is $1,200.00 due on the first day of each month. The defendant has been in arrears in her rent since July 2, 2007. She owed $500.00 as of July 2. She has not paid rent for August, September or October 2007. She currently owes a total of $4,100.00 in unpaid rent. The defendant testified

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[1] There was a bench trial as the parties waived the jury claim.

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that she cannot work because of an injury. This is why she has been unable to pay her rent.[2] On August 10, 2007, the plaintiff served the defendant with a legally sufficient fourteen (14) day notice to quit for non-payment of rent.

The defendant has failed to establish that the plaintiff either knew or should have known of any serious conditions in Apartment 3 prior to the date on which the defendant was first in arrears in her rent. Accordingly, the plaintiff has not established a defense to possession under G.L. c. 239, 8A.

I find that the plaintiff first learned of the conditions listed on the August 9, 2007 Inspectional Services Department (“ISD”) notice after August 9.[3] I find that while there was evidence of rodents and cockroaches, the problem was not significant. I credit the plaintiff’s testimony that the defendant had not complained to him about these conditions and that he was unaware of the issue until after he received the ISD notice. The other items listed on the ISD notice were minor. Accordingly, I rule that the plaintiff did not breach the implied warranty of habitability, did not violate G.L. c. 186, s. 14 and did not violate G.L. c. 93A.

The defendant gave the plaintiff a $1,200.00 security deposit at the inception of the tenancy. There is no evidence that the plaintiff failed to comply with any provisions of the security deposit statute. Accordingly, I rule that the plaintiff has not violated G.L. c. 186, s. 15B.

The plaintiff served the defendant with the notice to quit before he received the ISD notice in August 2007. Further, I find that the plaintiff has established with clear and convincing evidence that the sole reason he served the defendant with a notice to quit and commenced this summary process action was because the defendant had failed to pay rent. The plaintiff would have taken these actions even if the defendant had not contacted ISD. Accordingly, the defendant has not established a retaliation defense under G.L. c. 239, s. 2A or a claim for damages under G.L. c. 186, s. 18.

The plaintiff has established his case to recover possession and damages in the amount of $4,100.00.

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[2] The Court recognizes the defendant’s difficult financial circumstances; however, her inability to work does not constitute a defense to the plaintiff’s claim for rent.

[3] The conditions listed in the notice included: replace sheetrock covering hole in living room ceiling, replace cabinet drawer in kitchen, exterminate for rodents (droppings observed) and seal points of entry, exterminate for roaches, repair bedroom ceiling to remove evidence of water damage.

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ORDER FOR JUDGMENT

Based upon all the credible testimony and evidence presented at trial in light of the governing law, it is ORDERED that:

1. Judgment enters for the plaintiff for possession and damages in the amount of $4,100.00.

2. Execution shall issue ten (10) days from the date that judgment enters.

3. Judgment enters for the plaintiff on the defendant’s counterclaims for breach of the implied warranty of habitability, violation of G.L. c. 186, s.s.s. 14, 15B and 18, and G.L. c. 93A.

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End Of Decision

HOUSING COURT

LEYDA COLON, on behalf of herself and all others similarly situated, Plaintiffs VS. BOSTON HOUSING AUTHORITY, Defendant

Docket # CIVIL ACTION NO.03-C V-00151

Parties: LEYDA COLON, on behalf of herself and all others similarly situated, Plaintiffs VS. BOSTON HOUSING AUTHORITY, Defendant

Judge: /s/JEFFREY M. WINIK

FIRST JUSTICE

Date: September 27, 2007

MEMORANDUM OF DECISION AND ORDER ON CROSS-MOTIONS FOR PARTIAL SUMMARY JUDGMENT

Introduction

This is a class action in which the class representative, Leyda Colon (“Colon”), on behalf of herself and all others similarly situated (collectively, “the class plaintiffs”), is seeking damages arising from the alleged presence of lead hazards at the Charlestown Housing Development. This matter is before the Court on Defendant Boston Housing Authority’s (“the BHA”) Motion for Partial Summary Judgment and the class plaintiffs’ Motion for Partial Summary Judgment as to Liability.

Colons’ complaint contains five Counts seeking damages: Count I (Breach of Warranty of Habitability); Count II (Interference with Quiet Enjoyment); Count III (Violation of Lead Paint Law); Count IV (Negligent Maintenance of the Premises); Count V (Infliction of Emotional Distress). Counts I, II, and III have been certified as class claims, and Counts IV and V remain as individual claims of Colon.[1] The BHA is seeking summary judgment on Counts [I,

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[1] See Stipulation Regarding Definition of Class and Defendant’s Motion for Partial Summary Judgment (August 8, 2006).

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IV and V. The class plaintiffs are seeking summary judgment as to liability on Counts I, II and III. Colon is seeking summary judgment as to liability on Count IV.

Procedural History

In January 2003, Colon commenced this civil action in the Superior Court Department. The complaint alleges that the BHA’s failure to remove all lead hazards from her apartment (Apartment

#19 at 97 Polk Street) and the rest of the development has endangered and continues to endanger Colon and her children.[2] The complaint specifically states that none of the claims advanced by Colon seeks damages for any personal injuries resulting from the presence of lead paint.

In February 2006, this action was transferred to the Housing Court. On March 21, 2003, the Court (Kyriakakis, C.J.) allowed the case to proceed as a class action with respect to the lead-related claims that seek damages for diminution of value of the leasehold (warranty of habitability, interference with quiet enjoyment, and violation of the Lead Paint Law). The plaintiff class consists of 263 members, all of whom were residing at the development with at least one child under the age of six and whose apartment and/or associated common areas contained lead hazards at the time the complaint was filed in January 2003. In June 2003, the Court (Kyriakakis, C.J.) approved an agreement entered into by the parties to delead the Charlestown Development. Between 2003 and 2005, the BHA completed abatement of all lead hazards at the development in accordance with the agreement.

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[2] Colon brought the Complaint in her individual capacity only and not on behalf of her minor children.

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Facts

Undisputed Facts

Based upon the affidavits, interrogatories, and documents properly before the Court, the following facts are not in dispute.

The BHA owns and manages the Charlestown public housing development (“the development”). The development is located in the Charlestown section of Boston and consists of 45 buildings that contain 1118 apartments.[3] The BHA constructed all the buildings in the development between 1939 and 1940. The development was opened for occupancy in 1940. There was no prohibition on the use of lead-based paint in residential structures when the development was first occupied.[4]

In March 1997, Colon and her children began residing at the development. Colon lives at 97 Polk Street, Apartment #19. The plaintiff class consists of 263 members, all of whom at the time the complaint was filed in January 2003 were residing at the development with at least one child under the age of six and whose apartment and/or associated common areas contained lead hazards.

There is no evidence in the summary judgment record that the BHA inspected any of the development’s buildings for lead prior to 1992. From January through March 1992, the BHA had Buildings 19 and 22 of the development, which were vacant at the time, inspected for lead-based paint hazards. Seventeen of the thirty apartments[5] and all common area hallways in

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[3] The development originally consisted of 1149 apartments. At some point, 62 of the apartments were combined to create larger

apartments.

[4] The Commonwealth did not enact the Massachusetts Lead Poisoning Prevention Act (“the Lead Paint Law”) until 1971.

[5] 73 Walford Way, Apartments 502, 503, 504, 505, 507, 508, and 509; 42 Tufts Street, Apartments 513, 514, 518, 519, and 521; 110 Medford Street, Apartments 523, 524, 528, 529, and 531.

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Building 19 and one apartment in Building 22 (98 Medford Street, Apartment #594) and its associated common hallway contained lead hazards.[6]

In June 1993, a Charlestown tenant notified the BHA of her concern that there might be lead paint present in her apartment (2 Carney Court, Apartment #117). The BHA did not inspect her apartment.

In 1994, the BHA retained ATC/Dennison Environmental Services, Inc. to perform a lead-based paint risk assessment at the development. ATC/Dennison collected dust swipes and paint chips from 34 apartments at the development. Testing of the samples identified elevated lead levels generally present at those apartments. ATC/Dennison recommended more comprehensive lead testing of the development.

In 1995, the BHA carried out additional tests using a random testing protocol developed by the United States Department of Housing and Urban Development. The BHA hired EnviroScience Consultants, Inc. to conduct the testing. EnviroScience inspected 63 apartments plus 34 common hallways and stairways and 440 exterior components of the buildings. EnviroScience’s testing results revealed the presence of lead paint hazards in specific areas of some apartments and associated common areas on a “consistent” basis and that lead hazards were present in other areas of the same apartment interiors on a “random” basis.[7] The areas found to contain lead hazards on a consistent basis included (1) the stair underpans, stringers, railing caps, risers, baseboards, treads, and the newel posts in the common stairways, (2) roof

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[6] Only a portion of the various lead inspection reports obtained through discovery by the class plaintiffs have been made part of the summary judgment record. However the facts concerning the degree to which lead hazards were found at the development since 1992 are summarized in an affidavit prepared by the plaintiff class’ attorney, Raphael Mares. The Court cannot take judicial notice of the summary conclusions made by Mares as his affidavit is based on derivative, not personal, knowledge and was stricken from the record.

[7] Testing results prepared by EnviroScience are not contained in the summary judgment record. However, the record includes an internal BHA memorandum that contains a summary of

EnviroScience’s results prepared by a former BHA Senior Capital Planner.

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thresholds in the common hallways, (3) exterior lintels above basement doors, entrance doors, and windows, (4) basement rail caps, railings, flagpoles, security grates on the exterior of the buildings, and (5) metal pipes and older open closet rod supports inside the apartments. The areas identified as containing lead hazards on a random basis included wall plaster, window cases, chair rails, kitchen cabinet shelves, doors, and frames inside the apartments. EnviroScience recommended that the areas found to contain lead-based paint on a consistent basis be abated throughout the development. EnviroScience further recommended that the areas found to contain lead on a random basis be tested in all of the apartments. The BHA did not follow EnviroScience’s recommendations.

In 1996, the BHA hired lead inspectors from Recon Environmental Corporation for the purpose of inspecting the development’s vacant apartments and apartments in which children with elevated blood levels resided. As part of this contract, Recon Environmental inspected 21 apartments and associated building common areas. One of the apartments tested (161 Bunker Hill Street, Apartment #1112) contained lead hazards inside the apartment, in the associated common areas of the building, and on the exterior of the building.[8]

In or about March 1997, the BHA hired Dames & Moore to review the available lead inspection data for all of the BHA’s developments, including the Charlestown Development. Dames & Moore established a priority listing (high, moderate, or low) for each development with regard to the need for abatement activity. Dames & Moore rated the Charlestown development as a moderate priority development. Dames & Moore defined moderate priority developments as those where lead hazards were primarily found in common areas, exterior locations, and occasionally in apartment interiors. Specifically, Dames & Moore concluded that

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[8] Only one the 21 inspection reports prepared by Recon Environmental is contained in the summary judgment record.

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pipes were the only interior apartment components that tested positive for lead on ,a development-wide basis and that other interior components such as walls, doorframes, and closet rods generally tested positive for lead on a less frequent basis. Further, Dames & Moore concluded that common area stairwell components and exterior components throughout the developments generally contained lead paint.

In July 1997, the BHA established a lead based-paint policy. The policy set forth guidelines for the testing and abatement of apartments in all of the BHA’s pre-1978 federally funded family housing developments. The policy established priorities for lead

testing and abatement at each of its developments. Testing and abatement of all apartments at all developments in which a child with a reported elevated blood level resided was to begin immediately. The policy recommended additional testing and abatement to take place pursuant to a certain order of priorities. Pursuant to the order of priorities, apartments at the development housing children under the age of six who did not have reported elevated blood lead levels would not be tested and abated until all apartments housing children under the age of six in two other BHA developments and vacant apartments in the development and seven other BHA developments were tested and abated first.

Acting in response to tenant requests and/or reports of children with elevated blood lead levels, in February 2000, the Boston Childhood Lead Poisoning Program conducted lead inspections of 18 apartments at the development. One of the apartments tested (74 Decatur Street, Apartment #918) was found to contain lead hazards inside the apartment, in the associated common areas of the building, and on the exterior of the building [9]

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[9] Only one of the Boston Childhood Lead Poisoning Program inspection reports is contained in the summary judgment record.

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Colon commenced this civil action in January 2003. On June 13, 2003, the parties entered into an agreement to resolve issues pertaining to lead abatement In accordance with the agreement, the BHA inspected and abated all previously unabated apartments and associated common areas at the development between 2003 and 2005.[10] LFR Levine-Fricke performed the lead inspection work. Based on the inspections, LFR Levine-Fricke determined that lead hazards were found on components in six of the apartment interiors inspected (9 Walford Way, Apartment #745; 153 Bunker Hill Street, Apartment #1124; 92 Monument Street, Apartment #178; 41 O’Reilly Way, Apartment #441; 177 Bunker Hill Street, Apartment #1095; and 1 McNulty Court, Apartment #996) and in three of the common area stairwells inspected (common stairwells at 25 Walford Way, 2 Carney Court, and 177 Bunker Hill Street).[11] As of 2005, all lead hazards at the development had been abated.

Discussion

Summary Judgment Standard

as to material facts.” Godbout v. Cousens, 396 Mass. 254, 261 (1985). “A party moving for summary judgment in a case in which the opposing

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[10] At the time the parties had entered into the agreement, BHA had already obtained letters of full deleading compliance for 128 of the apartments at the development and their associated common areas.

[11] The summary judgment record contains only a small sample of the LFR Levine-Fricke inspection reports.

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Count I (Breach of Warranty of Habitability).

The class plaintiffs are seeking summary judgment as to liability on their claim for breach of the warranty of habitability. They allege that the undisputed facts contained in the summary judgment record are sufficient for the Court to rule as a matter of law that there has been a material breach of the warranty of habitability with respect to the presence of lead hazards in the apartments occupied by the class plaintiffs and/or the associated common areas. In opposition, the BHA contends that disputes as to material issues of fact exist. Specifically, the BHA alleges that the various reports, analyses, and test results relied upon by the plaintiffs, taken individually or collectively, are insufficient to establish that lead paint was present in an apartment occupied by any specific member of the class, and that knowledge that lead paint was generally present in some buildings at the development is insufficient to establish that hazardous levels of lead paint were present in any specific apartment or common area.

There exists with respect to every residential tenancy an implied warranty of habitability that the premises are fit for human habitation. A landlord is in breach of this warranty where there exists a defect that may materially affect the health or safety of the occupants. Boston Housing Authority v. Hemingway, 363 Mass. 184, 199 (1973). A breach of the implied warranty of habitability occurs from the point in time when a landlord had notice or should have known of a substantial defect or substantial Sanitary Code violation at the premises. The breach continues until the defect or violation is remedied. Berman & Sons, Inc. v. Jefferson, 379 Mass. 196

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(1979) (landlord in breach of warranty of habitability from first notice of substantial Sanitary Code violations that recurred over time despite landlord’s efforts to repair). The implied warranty of habitability requires that a landlord “will do whatever [the building and sanitary codes] require for compliance during the term of the renting.” Crowell v. McCaffrey, 377 Mass. 443, 451(1979).

Owners of residential property have an affirmative obligation to abate the property’s lead hazards whenever a child under the age of six lives there. The Lead Law requires that owners of residential property abate or contain any accessible materials containing dangerous levels of lead whenever a child under six years of age resides at the property. G.L. c. 111, s. 197(a). Pursuant to the Lead Poisoning Prevention and Control Regulations, owners of residential property are required to obtain a letter of full lead compliance or a letter of interim lead control whenever a child under six years of age resides there. 105 CMR 460.00. Accordingly, owners have an affirmative obligation to inspect residential property for lead hazards whenever a child under age six lives there in order to be in compliance with the Lead Law and the Lead Poisoning Prevention and Control Regulations. See Massachusetts Rental Housing Association, Inc. v. Lead Poisoning Control Director, 49 Mass.App.Ct. 359, 363 (2000) (“As a practical matter, it is hard to think how an owner of property could generally comply with the deleading requirement of G.L. c. 111, s. 197, unless the owner first inspects for the presence of lead”). Under the State Sanitary Code, an owner’s failure to comply with the Lead Poisoning Prevention and Control Regulations is deemed to always have the potential to endanger or materially impair the health or safety of the dwelling’s occupants. 105 CMR 410.750.

The presence of lead hazards found in a apartment occupied by a child less than six years of age is sufficient to constitute a material breach of the implied warranty of habitability.

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Further, the warranty of habitability is breached where lead hazards are found in the common areas or exterior of a residential property even if lead is not found in an individual apartment. This is because a child, out of necessity, uses the common areas and the areas surrounding the property in which he resides and therefore would be exposed to the dangers of lead hazards in such areas.

The undisputed evidence in this summary judgment record establishes that: (1) all members of the plaintiff class were residing at the development with at least one child under the age of six at the time the Colon complaint in this action was filed in 2003; (2) the BHA knew or should have known that all members of the plaintiff class had at least one child under the age of six residing with them; (3) components in portions of the common areas and exteriors in a subset of the residential buildings of the development contained lead hazards at least as of the date the complaint was filed[12]; (4) some apartments contained lead hazards at the time the action was commenced in 2003[13]; (5) BHA knew or should have known that lead hazards were present throughout the development as early as 1992 based on the lead inspections

performed on Buildings 19 and 22 of the development and because it was required under the Lead Paint Law and the Lead Poisoning Prevention and Control Regulations to inspect the development for lead hazards and (6) the BHA did not abate all lead hazards at the development until after this action was filed in 2003.

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[12] The summary judgment record does not reliably identify with specificity which of the 45 buildings (other than Buildings 19 and 22 and the few common areas referenced in Footnotes 8, 9 and 11) contained lead hazards in the common areas and exteriors when this action was filed in January 2003. The Court is unable to determine which apartments and street addresses are associated with each building.

[13] The Court is unable to determine from the summary judgment record which units were found to have lead hazards (other than the units referenced in Footnotes 5, 6, 8, 9 and 11) and which class plaintiffs lived in apartments where lead hazards were found in the apartment interiors. The summary judgment record does not identify the apartment (either by number, address or building designation) in which each class plaintiff lived as of the time this action was commenced in January 2003.

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Based upon these undisputed facts, I conclude that those members of the plaintiff class whose apartments, associated common areas, or building exteriors were found to contain lead hazards when this action was commenced in January 2003 would be entitled to prevail as to liability on their claim for breach of the implied warranty of habitability. However, the summary judgment record does not identify 1) which of the development’s buildings (other than Buildings 19 and 22) contained lead hazards in the common areas and exteriors, 2) all of the units that contained lead hazards,[14] or 3) which class plaintiffs lived in the buildings and/or apartments the record reflects contained lead hazards. These factual issues will need to be determined at trial.[15]

Accordingly, the class plaintiffs are not entitled to summary judgment as to liability on their claim for breach of the implied warranty of habitability.

Count II (Interference with Quiet Enjoyment)

The class plaintiffs are seeking summary judgment as to liability on their claim for interference with quiet enjoyment. The class plaintiffs allege, based on the undisputed facts contained in the summary judgment record, that the BHA, by failing to take reasonable and effective steps to identify and abate lead hazards at the development, interfered with their quiet use and enjoyment of their premises as a matter of law. The BHA is also seeking summary judgment on the class plaintiffs’ claim for interference with quiet enjoyment. The BHA alleges that the class plaintiffs have not established a sufficient factual basis to support their

claim for interference with quiet enjoyment.

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[14] See Footnotes 12 and 13, infra.

[15] If a class plaintiff establishes a threshold breach of the implied warranty of habitability, the amount of damages remains to be determined at trial. The percentage reduction in value of the leasehold awarded to each class plaintiff entitled to judgment will vary based on where and in what amount lead hazards were found in the class plaintiff’s apartment and/or in the common areas or exteriors of the respective building.

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The quiet enjoyment statute, G.L. c. 186, s. 14, provides that any landlord who “directly or indirectly interferes with the quiet enjoyment of any residential premises” shall be liable for “actual or consequential damages or three month’s rent, whichever is greater … .” While the statute does not require that the landlord’s conduct be intentional, Simon v. Solomon, 385 Mass. 91 (1982), it does require proof that the landlord’s conduct caused a serious interference with the tenant’s quiet enjoyment of the premises. A serious interference is an act or omission that impairs the character and value of the leased premises. Doe v. New Bedford Housing Authority, 417 Mass. 273, 284-285 (1994); Lowery v. Robinson, 13 Mass.App.Ct. 982 (1982). A landlord violates G.L. c. 186, s. 14 where he had notice or reason to know of a serious condition in the tenant’s apartment and failed to take appropriate corrective measures. Al Ziab v. Mourgis, 424 Mass. 847, 850-851 (1997); Cruz Management Co., Inc. v. Thomas, 417 Mass. 782 (1994).[16]

The class plaintiffs are not alleging that they suffered personal injury or damage to property as a result of the BHA’s breach of quiet enjoyment. The actual damages that the class plaintiffs seek under their claim for breach of quiet enjoyment is the diminished value of their leaseholds. This is the same measure of damages sought by them under their claim for breach of the implied warranty of habitability.

The class plaintiffs’ breach of quiet enjoyment claim arises from the same undisputed facts upon which their breach of the implied warranty of habitability claim is based. These facts are: (1) all members of the plaintiff class were residing at the development with at least one child under the age of six at the time the complaint in this action was filed in 2003; (2) the BHA knew or should have known that all members of the plaintiff class had at least one child under the age

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[16] Al Ziab v. Mourgis involved a claim under G.L. c. 186, s. 14 for lead poisoning injuries. The Supreme Judicial Court ruled that to support the imposition of liability under the quiet enjoyment statute, there must be a showing of at least negligent conduct by a landlord.

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of six residing with them; (3) components in some the common areas and exteriors in a subset of the residential buildings of the development contained lead hazards at least as of the date the complaint was filed; (4) some apartments contained lead hazards at the time the action was commenced in 2003; (5) BHA knew or should have known that lead hazards were present throughout the development as early as 1992 based on the lead inspections performed on Buildings 19 and 22 of the development and because it was required under the Lead Paint Law and the Lead Poisoning Prevention and Control Regulations to inspect the development for lead hazards and (6) the BHA did not abate all lead hazards at the development until after this action was filed in 2003.

The BHA maintains that the evidence in the summary judgment record, considered in the light most favorable to the class plaintiffs, is insufficient as a matter of law to establish that the BHA interfered with the quiet enjoyment of any specific class plaintiff.

It is undisputed that lead hazards were present in the interiors of some of the apartments at the development. Based upon the undisputed factual history set forth in the summary judgment record, I find that the BHA’s failure to take prompt and effective steps to identify and abate the lead hazards inside these apartments constituted an omission that impaired the character and value of those apartments. Such impairment constituted a serious interference with the use and quiet enjoyment of the tenants with children less than six years of age who lived in those apartments. Accordingly, those members of the plaintiff class whose apartments contained lead hazards when this action was commenced in January 2003 would be entitled to prevail on their claim for breach of quiet enjoyment as to liability. However, the summary judgment record

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is insufficient to identify all the apartments that contained lead hazards and which class plaintiffs lived in those apartments.[17] These factual issues will need to be determined at trial.[18]

I am not prepared to rule as a matter of law that the BHA breached the quiet enjoyment of those class plaintiffs whose standing in this action is based solely on the presence of lead in the common areas and/or exteriors of the buildings in which they reside. There exists disputed issues of fact with respect to whether the BHA’s failure to identify and abate the lead hazards in the common areas and exteriors of the development’s buildings constituted acts or omissions that seriously interfered with any specific class plaintiff’s quiet use and enjoyment of their premises.[19] Whether or not the presence of lead in the common areas and building exteriors constituted a serious interference with a specific class plaintiffs quiet enjoyment depends on individual circumstances such as where the lead hazards existed in relation to the class plaintiff’s apartment, in what form and in what amount. These disputed issues of fact must be determined at

trial.

Accordingly, the parties’ cross motions for summary judgment as to the class plaintiffs’ claim for breach of quiet enjoyment are denied.

Count III (Violation of the Lead Paint Law)

The class plaintiffs are seeking summary judgment as to liability on their damages claim under G.L. c. 111, s.s. 189A et seq.

Section G.L. c. 111, s. 197(a) of the Lead Paint Law sets forth the duty of residential premises owners. It states in relevant part, “Whenever a child under six years of age resides in

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[17] See Footnotes 5, 6, 8, 9, 11 and 13, infra.

[18] If a class plaintiff establishes a claim for breach of quiet enjoyment, the amount of damages, similar to their claim for damages for breach of the implied warranty of habitability, remains to be determined at trial.

[19] The class plaintiffs’ burden of proof is greater on the quiet enjoyment claim than it is on the breach of the implied warranty of habitability claim.

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any premises in which any paint, plaster or other accessible structural material contains dangerous levels of lead, the owner shall abate or contain said paint, plaster or other accessible structural materials in accordance with the requirements of subsection (b) or (c).” G.L. c. 111, s. 199 provides that an owner who fails to comply with the provisions of G.L. c. 111, s. 197 shall be strictly liable for all lead-based injuries to a child less than six years of age. See G.L. c. 111, s. 199(a) and (b).[20]

It is undisputed that lead hazards were present at the development since its construction and that the BHA did not bring the development into full compliance with the Lead Paint Law until 2005. However, there is no claim brought by the class plaintiffs on behalf of any minor child that alleges that said child suffered a lead poisoning injury. Therefore, the class plaintiffs do not assert a claim for damages cognizable under G.L. c. 111, s. 199.

Accordingly, the class plaintiffs’ motion for summary judgment as to liability on their claim for violation of the Lead Law is denied.[21]

Count IV (Negligent Maintenance of the Premises)

According to the parties’ August 8, 2006 Stipulation, the claim for negligent maintenance of the premises set forth in the complaint is specific to Colon and has not been certified as a class claim.

Colon is seeking summary judgment as to liability on her claim for negligent maintenance of the premise. She alleges that the summary judgment record establishes that the

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[20] G.L. c. 111, s. 199(a) states in relevant part, “[T]he owner of any premises shall be liable for all damages to a child under six years of age at the time of poisoning, upon proof that said child’s blood lead level equal or exceeds the blood lead level at which the department defines lead poisoning, that are caused by his failure to comply with the provisions and requirements of section one hundred and ninety-four, subsection (a) of section one hundred and ninety-six or section one hundred and ninety-seven, and regulations pursuant to said provisions.” Subsection (b) provides for punitive damages (trebling of the actual damages found under subsection (a)), if the owner is notified that the premises contains dangerous levels of lead and willfully fails to take the appropriate actions.

[21] The BHA has not moved for summary judgment as to this count.

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BHA breached its duty of reasonable care by failing to discover and remove lead hazards from her apartment and associated common areas despite reason to know of these hazards. Colon is seeking damages due to the BHA’s alleged negligence in an amount at least equivalent to the diminished value of her apartment. The BHA is seeking summary judgment on Colon’s claim for negligent maintenance of the premises. The BHA alleges that Colon has failed to make proper presentment of the claim, which sounds in tort, as required by G.L. c. 258, s. 4 (the Massachusetts Tort Claims Act).

In Massachusetts, the “economic loss” rule precludes a party from recovering damages for economic losses (e.g., diminution in value of a leasehold) in claims sounding in negligence when there is no proof of personal injury or physical damage to property. Garweth Corp. v. Boston Edison Co., 415 Mass. 303, 305-306 (1993). Colon makes no allegation in this action that she suffered any personal injury or damage to her property. The damages she seeks under her claim for negligent maintenance of the premises are those for diminution of the value of her leasehold, which are contract-based economic losses. Therefore, she is not entitled to recovery under a negligence theory.

Even if Colon had a colorable claim for negligent maintenance of the premises, the undisputed evidence in the summary judgment record established that she failed to present her claim in accordance with the requirements of the Massachusetts Tort Claim Act.

Under G.L. c. 258, s. 4, a claim for damages sounding in negligence cannot be brought against a public employer unless the claimant has first presented the claim in writing to the agency’s executive officer.[22] The purpose of the written presentment requirement “is to ensure

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[22] G.L. c. 258, s. 4 states in relevant part, “[a] civil action shall not be instituted against a public employer on a claim for damages under this chapter unless the claimant shall have first presented his claim in writing to the executive officer of such public employer within two years after the date upon which the cause of action arose, and such claim

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that the responsible public official receives notice of the claim so that the official can investigate whether or not the claim is valid, preclude payment of inflated or nonmeritorious claims, settle valid claims expeditiously, and take steps to ensure that similar claims will not be brought in the future.” Martin v. Commonwealth, 53 Mass.App.Ct. 526, 529 (2002), quoting Lodge v. District Attorney for the Suffolk Dist., 21 Mass.App.Ct. 277, 283 (1985). “Writings may be tacked together to establish a complete presentment.” Garcia v. Essex County Sheriff’s Dept., 65 Mass.App.Ct. 104, 100 n. 10 (2005). The Massachusetts Tort Claims Act does not specify what information must be included in a presentment letter. However, the Supreme Judicial Court has held that the letter “should be precise in identifying the legal basis of a plaintiffs claim” and “not so obscure that educated officials should find themselves baffled or misled with respect to his assertion of a claim … which constitutes a proper subject for suit within G.L. c. 258 ” Gilmore v. Commonwealth, 417 Mass. 718, 723 (1994).

The parties agree that the BHA is a public employer as defined by G.L. c. 258, s. 1. The parties further agree that Count IV (Negligent Maintenance of the Premises) of the complaint sounds in tort and therefore is subject to the provisions of G.L. c. 258. At issue is whether the contents of an April 12, 2002 letter from Attorney Mares to the BHA’s executive officer, Sandra Henriquez (“Henriquez”) constitutes sufficient presentment.[23]

The letter is entitled “Lead Hazards and other Sanitary Code Violations at the Boston Housing Authority’s Charlestown Housing Development” and states is relevant part,

“I am writing in regards to the presence of dangerous levels of lead paint as well as other Sanitary Code violations at the Charlestown Housing Development, which is owned and managed by the BHA. Please be advised that as of now the

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shall have been finally denied by such executive officer …. The failure of the executive officer to deny such claim in writing within six months … shall be deemed a final denial of such claim.”

[23] No dispute exists as to the timeliness of the purported presentment or whether it was made to the proper official.

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Hale and Dorr Legal Services Center is representing two of these residents: Ms. Yolanda Cruz of 50 Decatur Street, #973, Charlestown, MA 02129 and Ms. Johanna Manzueta of 33 Carney Court, #136 Charlestown, MA 02129.[24] In August of 2001, Bernard Lynch, a licensed lead inspector, conducted lead code determinations at Ms. Cruz’s and Ms. Manzueta’s apartments as well as the associated common areas and documented violations of the Massachusetts Lead Poisoning Prevention and Control Act (the “Lead Law”).” The letter continues by detailing the findings of the lead inspection of the two apartments as well as describing other alleged conditions of disrepair at the two apartments. The letter states further, “As a result of all these conditions and the BHA’s negligence, my clients hereby put you on notice that they have claims for … negligence and/or negligent infliction of emotional distress … . Pursuant to the provisions of [G.L. c. 258, s. 4], you have six months to accept or deny the claims of my clients. This letter presents claims on my clients’ behalf under M.G.L. chapter 258 and a demand that the BHA pay them [$50,000.00 each] in full and complete settlement of the above-delineated claims. As you know, violations of the Lead Law exist in almost all of the common areas of the Charlestown Housing Development, as well as in the interiors of some of the apartments. Based on this sample of inspections, it is to be expected that Lead Law violations are present in almost all of the interior hallways at the … [d]evelopment, as well as on many of the window lintels. Likewise, it is highly probable that the interiors of at least some additional residential apartments at the … [d]evelopment contain dangerous levels of lead.”

Colon contends that even if the April 12, 2002 letter to Henriquez does not constitute proper presentment on its own, the presentment requirement is satisfied if the letter is considered together with a May 1, 2002 letter from Attorney Mares to the BHA’s counsel in this action, Attorney Wilbur Commodore. The letter is entitled “Lead Abatement at Charlestown Development” and states in relevant part,

“Thank you for informing me about your client’s timeline for fully inspecting and deleading the fourteen common areas for which I provided you with lead code determination reports last month. Although you did not mention it in your letter, I got the impression from our phone conversations that your client also intends to address the Massachusetts Lead Law violations inside the residential apartments. Of course, if your client were to refuse to fully comply with the Lead Law, my office would be left with no option but to request injunctive and monetary relief in court on behalf of the Charlestown Development residents with children under the age of six … . Due to the number of residents affected, we would probably, in the interest of efficiency, seek class action

certification.”

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[24] Neither Ms. Cruz nor Ms. Manzueta is a named plaintiff in this action.

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I shall consider both letters.

The April 12, 2002 letter does not identify Colon or otherwise state that she is asserting any claim against the BHA. Even if the April 12, 2002 letter to Henriquez had identified Colon, the letter did not constitute sufficient presentment of a claim for negligent maintenance of the premises. The only allegation found in the letter is that lead hazards exist in some common areas and apartments at the development. Although the letter states that it is presenting a claim of negligence, the letter fails to state a factual basis that would support a claim sounding in negligence. The letter contains no allegation that Colon (or anyone at the development) suffered personal injury or damage to personal property as a result of the presence of lead hazards at the development or that the BHA’s negligence in abating the lead hazards caused such injuries. Contrast Martin, 53 Mass.App.Ct. at 527 (letter provided that plaintiffs children suffered from lead poisoning as a result of ingesting lead-based paint found in their apartment). The April 12, 2002 letter fails the Gilmore, 417 Mass. at 723 test for determining the sufficiency of the contents of a presentment letter. The April 12, 2002 letter fails to identify the factual or legal basis of a claim for negligent maintenance of the premises. The letter is inadequate to fulfill the purposes of the presentment requirement, which is to give the proper executive officer sufficient notice of the factual basis giving rise to a tort-based claim so that the executive officer is allowed the opportunity to investigate, assess, and possibly settle the claim.

The contents of the May 1, 2002 letter to Attorney Commodore, taken alone or in conjunction with the April 12, 2002 letter to Henriquez, does not constitute sufficient presentment of Colon’s claim for negligent maintenance of the premises.[25] Similar to the

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[25] The Court shall assume that Attorney Commodore, prior to his receipt of the May 1, 2002 letter, had informed Attorney Mares that Henriquez had received the April 12, 2002, that he was representing Henriquez concerning the matter, and that Mares should direct all future correspondence concerning the matter to BHA’s legal office. See Garcia, 65 Mass.App.Ct. at 108-109.

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deficiency in the April 12, 2002 letter to Henriquez, the letter to Attorney Commodore neither asserts that any injury was caused by the BHA’s negligence or wrongdoing nor enumerates enough facts upon which one could base a claim of negligence. The letter to Attorney Commodore, like the letter to Henriquez, is simply too vague to put

the BHA on notice of any legal basis for a claim grounded in negligence and therefore is inadequate to fulfill the purposes of the presentment requirement.

For these reasons, I conclude that the April 12, 2002 letter to Henriquez and the May 1, 2002 letter to Attorney Commodore, considered alone or taken together, do not constitute proper presentment of Colon’s claim for negligent maintenance of the premises sufficient to meet the requirements G.L. c. 258, s. 4. Proper presentment is a condition precedent to instituting a civil action containing such claim.

Accordingly, the BHA is entitled to summary judgment on Colon’s claim for negligent maintenance of the premises.

Count V (Infliction of Emotional Distress)

According to the parties’ August 8, 2006 Stipulation, the claim for Infliction of Emotional Distress (Count V) set forth in the complaint is specific to Colon and has not been certified as a class claim.

The BHA is seeking summary judgment on Colon’s claim for infliction of emotional distress. The BHA alleges that to the extent Colon is alleging a claim for negligent infliction of emotional distress, the claim is barred because Colon has failed to make proper presentment of the claim, which sounds in tort, as required by Section 4 of the Massachusetts Tort Claims Act. The BHA further alleges that to the extent Count V seeks to assert a claim for intentional infliction of emotional distress, Section 10 of the Massachusetts Tort Claims Act bars the claim.

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Colon’s claim for infliction of emotional distress sounds in tort, and therefore, is subject to the provisions of G.L. c. 258. I have already determined that Colon’s purported presentment letters do not present a sufficient factual basis to support a claim grounded in negligence and therefore do not constitute sufficient presentment of such claims as required by G.L. c. 258, s. 4. Therefore, I conclude that the BHA is entitled to summary judgment on Count V of the complaint to the extent it seeks to assert a claim for negligent infliction of emotional distress.

Separate and distinct from the presentment issue, the BHA is also entitled to judgment in its favor as a matter of law on Count V to the extent that it seeks damages for intentional infliction of emotional distress. Under the Massachusetts Tort Claims Act, public employers are immune from suits arising from intentional torts. Lafayette Place Associates v. Boston Redevelopment Authority, 427 Mass. 509, 532-33 (1998), cert. denied, 525 U.S. 1177 (1999).

Accordingly, the BHA is entitled to summary judgment on Colon’s claim for infliction of emotional distress.

Conclusion

For these reasons, the BHA’s Motion for Partial Summary Judgment is ALLOWED as to Counts IV and V and DENIED as to Count

II. The Plaintiffs’ Motion for Partial Summary Judgment as to Liability is DENIED as to all counts requested (Counts I, II, III, and IV).

cc: Wilbur E. Commodore, Esq.

Rafael H. Mares, Esq.

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End Of Decision

HOUSING COURT

LEYDA COLON, on behalf of herself and all others similarly situated, Plaintiff VS. BOSTON HOUSING AUTHORITY, Defendant

Docket # CIVIL ACTION NO. 03-CV-00151

Parties: LEYDA COLON, on behalf of herself and all others similarly situated, Plaintiff VS. BOSTON HOUSING AUTHORITY, Defendant

Judge: /s/JEFFREY M. WINIK

FIRST JUSTICE

Date: September 27, 2007

MEMORANDUM OF DECISION AND ORDER ON DEFENDANT’S MOTION TO STRIKE AFFIDAVIT OF PLAINTIFFS’ ATTORNEY AND PLAINTIFFS’ EXHIBIT AC

This is a class action in which the class representative, Leyda Colon, on behalf of herself and all others similarly situated (collectively, “the class plaintiffs”), is seeking damages arising from the alleged presence of illegal levels of lead at the Charlestown Housing Development (“the development”).

The defendant, Boston Housing Authority (“the BHA”), pursuant to Mass. R. Civ. P. 56(e), is moving to have the Court strike the affidavit of Attorney Rafael Mares. Attorney Mares represents the class plaintiffs. The affidavit contains a summary and analysis of information contained in the BHA’s discovery responses. The BHA contends that Attorney Mares’ affidavit, to the extent that it sets forth facts pertaining to the presence of lead at the development, is not based on the affiant’s personal knowledge.

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The BHA also seeks to strike Exhibit AC of the class plaintiffs’ memorandum in support of their motion for partial summary judgment. Exhibit AC contains samples of work orders for the development prepared by the BHA’s lead inspection company, LFR Levin-Fricke. The BHA alleges that Exhibit AC is inadmissible as it contains evidence of subsequent repairs.

Affidavit of Attorney Mares

Mass. R. Civ. P. 56(e) states in relevant part, “Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.” An affidavit by an attorney is valid only

to the extent that it proceeds from the attorney’s personal knowledge – as opposed to derivative knowledge. Dattoli v. Hale Hospital, 400 Mass. 175, 178 (1987).

In his affidavit, Attorney Mares states that he has reviewed and analyzed the discovery responses received from the BHA and then summarizes the contents thereof. Specifically, Attorney Mares sets forth a statistical analysis that purports to establish the degree to which the development contained illegal levels of lead paint prior to the time the BHA completed comprehensive lead abatement of the development in 2005. Attorney Mares did not conduct lead testing at the development and the information contained in his affidavit is based on his derivative knowledge of lead inspections performed by others. Since the information is not based upon Attorney Mares’s personal knowledge, the Court shall strike the affidavit. The Court shall not consider any references to the affidavit contained in the class plaintiffs’ memorandum in support of their motion for partial summary judgment.

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Exhibit AC

Evidence that subsequent repairs were made or that other safety measures were taken, including evidence of an investigation leading thereto, after an accident occurs is not admissible as proof of negligence. Martel v. Massachusetts Bay Transit Authority, 403 Mass. 1, 4 (1988). The purpose of the rule is to encourage owners to make repairs to dangerous properties. Id. However, this exclusionary rule is applicable only as to the issue of negligence. Blake v. Springfield Street Railway Co., 6 Mass.App.Ct. 553, 557 (1978). Evidence of a subsequent repair or safety measure is admissible to prove disputed issues other than negligence such as ownership or control of the premises, feasibility of giving adequate warnings and safety improvements, and knowledge of a danger at the time of the accident. Hon. Paul J. Liacos, Mark S. Brodin & Michael Avery, Handbook of Massachusetts Evidence, s.4.5, 185-186 (7`h ed., Aspen 1999) (citing Finn v. Peters, 340 Mass 622, 625 (1960) (ownership or control over the premises); Schaeffer v. General Motors Corp., 372 Mass. 171, 175-177 (1977) (feasibility of giving adequate warnings); doCanto v. Ametek, Inc., 367 Mass. 776, 779-782 (1975) (feasibility of safety improvements); Reardon v. Country Club at Coonamessett, Inc., 353 Mass. 702, 704-705 (1968) (knowledge of danger at time of accident)).

Exhibit AC consists of work order memoranda prepared by the BHA’s lead inspection company from 2003 through 2005. The memoranda were prepared in conjunction with the BHA’s comprehensive lead abatement plan for the development pursuant to an agreement entered into by the parties in this action. Assuming without deciding that the BHA’s undertaking and completion of abatement of lead hazards at

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the development constitutes subsequent repairs, evidence thereof

would not be admissible to establish its negligence. The work memoranda contained in the class plaintiffs’ Exhibit AC, which provides evidence of the investigatory steps taken by the BHA in furtherance of the abatement process, would likewise be inadmissible for the same purpose. However, the class plaintiffs are seeking to use the exhibit to establish the presence of lead-based paint at the development, not to establish any breach of duty on the part of the BHA.[1] Since evidence of subsequent repairs are admissible as to disputed issues other than negligence, the Court shall not strike the class plaintiffs’ Exhibit AC or references made to it to the extent that it goes to show the existence of lead-based paint at the development.

Conclusion

For the reasons set forth above, the BHA’s Motion to Strike is ALLOWED as to Attorney Mares’s affidavit and DENIED as to Plaintiffs’ Exhibit AC.

cc: Wilbur E. Commodore, Esq.

Rafael H. Mares, Esq.

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[1] The plaintiff class must prove as an element of their breach of the implied warranty of habitability and quiet enjoyment claims that lead hazard existed in the development’s apartments and common areas.

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End Of Decision

HOUSING COURT

VINCENT KEELY, Plaintiff VS. LISA JONES, Defendant

Docket # SUMMARY PROCESS NO. 07H84SP004256

Parties: VINCENT KEELY, Plaintiff VS. LISA JONES, Defendant

Judge: /s/JEFFREY M. WINIK

FIRST JUSTICE

Date: November 16, 2007

FINDINGS OF FACT, RULINGS OF LAW AND ORDER OF JUDGMENT

Based upon all the credible testimony and evidence presented at trial, and the reasonable inferences drawn therefrom, the Court finds as follows:

The plaintiff, Vincent Keely, owns the six-unit apartment building at 763 Truman Parkway, in the Hyde Park section of Boston. The plaintiff has owned the property since 1963. The defendant, Lisa Jones, resides at 763 Truman Parkway, Apartment 3 (third floor) as a tenant at will. She has occupied the premises with her husband and children since March 2002. The monthly rent is $950.00 due on the first day of each month. The defendant has been in arrears in her rent since December 2006. She has made sporadic and incomplete rent payments during 2007. She owes a total of $2,450.00 in unpaid rent including rent due for November 2007. On September 25, 2007, the plaintiff served the defendant with a legally sufficient fourteen (14) day notice to quit for non-payment of rent.

The evidence is insufficient to establish that defective conditions existed in the defendant’s apartment or that the plaintiff failed to make necessary repairs. I find that the

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defendant did not complain about the adequacy of her heat until the 2006-07 heating season. The plaintiff promptly responded to the defendant’s complaint and hired a plumber and electrician who identified and corrected the problem. The plaintiff did not breach the implied warranty of habitability or interfere with the defendant’s quiet use or enjoyment of the premises.

There is no evidence that the plaintiff violated any provision of the security deposit or pre-paid rent deposit statute, G.L. c. 186, s. 15B.

I find that the plaintiff did not harass, abuse or threaten the defendant at any time during her tenancy. The plaintiff did not violate G.L. c. 186, s. 14.

There is no evidence that the plaintiff engaged in any acts of reprisal directed against the defendant. The sole reason the plaintiff terminated the defendant’s tenancy was because she failed

to pay rent when due. The plaintiff did not violate G.L. c. 186, s. 15B or G.L. c. 239, s. 2A.

The plaintiff has established his case to recover possession and damages in the amount of $2,450.00.

ORDER FOR JUDGMENT

Based upon all the credible testimony and evidence presented at trial in light of the governing law, it is ORDERED that:

1. Judgment enters for the plaintiff for possession and damages in the amount of $2,450.00.

2. Execution shall issue ten (10) days from the date that judgment enters.

cc: Vincent Keely

Lisa Jones

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End Of Decision

HOUSING COURT

JUSTIN B. WILLIAMS, by his mother and next friend, VIRGINIA WELLS, Plaintiff VS. 1412 COMMONWEALTH AVENUE CONDOMINIUM TRUST, ALPHA MANAGEMENT CORP., and ANWAR FAISAL, Defendants

Docket # CIVIL ACTION NO. 97H84CV001286

Parties: JUSTIN B. WILLIAMS, by his mother and next friend, VIRGINIA WELLS, Plaintiff VS. 1412 COMMONWEALTH AVENUE CONDOMINIUM TRUST, ALPHA MANAGEMENT CORP., and ANWAR FAISAL, Defendants

Judge: /s/JEFFREY M. WINIK

FIRST JUSTICE

Date: November 16, 2007

ORDER

The proposed scheduling order appended hereto as Attachment A is approved and adopted as an order of the Court.

SO ORDERED.

cc: Kurt M. Pressman, Esq.

Susan J. Goldstein, Esq.

Sarah L. Rhatigan, Esq.

Owen P. McGowan, Esq.

John B. DiSciullo, Esq.

Daniel Briansky, Esq.

Mark G. Zuroff, Esq.

Guillermo Garza, Scheduling Clerk

Attachment A

C.A. NO. 97-CV-01286

JUSTIN WILLIAMS,

Plaintiff,

1412 COMMONWEALTH AVE. CONDOMINIUM TRUST, ALPHA MANAGEMENT CORP., and ANWAR FAISAL, Defendants

SCHEDULING ORDER

The undersigned parties hereby propose the following timeline for completion of pre-trial matters, and a proposed Final Pre-Trial Conference and Trial Date in this matter.

1) The Plaintiff will serve upon the Defendant supplemental answers to expert discovery, which shall include expert reports, on or before November 30, 2007.

2) The Defendant will serve upon the Defendant supplemental answers to expert discovery, which shall include expert reports, on or before January 2, 2007.

3) The parties will attempt to resolve the case by submitting the matter to a non-binding mediation with a neutral mediator on or before January 30, 2008.

4) If the case is not resolved, the Plaintiff will file Motion to Amend Complaint to Add Chapter 93A Claims on or before February 15, 2008, and the Defendants will file opposition within fifteen (15) days thereafter.

5) The Plaintiff will submit himself to a follow-up medical examination by the Defendants’ medical expert, Edgar Oppenheimer, M.D. (neurologist), on or before February 29, 2008, provided however that such examination shall consist of a physical examination only, and any history shall be limited to an updated history covering matters occurring since November 2003, the date of Dr. Oppenheimer’s prior examination of the Plaintiff. Said examination shall take place in the presence of plaintiff’s counsel. Defendant will serve the Plaintiff copies of any supplemental reports from Dr. Oppenheimer within 60 days of the medical examination.

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6) All non-expert discovery shall be completed on or before March

14, 2008.

7) All expert depositions shall be completed on or before May 15, 2008.

8) All Pre-Trial Motions in Limine shall be filed on or before June 16, 2008; and oppositions to said Motions shall be filed within 2 weeks thereafter.

9) The Final Pre-Trial Conference shall be scheduled for the first available date after July 15, 2008.

10) The Trial shall be scheduled for the first available date after September 15, 2008. The Trial is expected to last 5 days.

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End Of Decision

HOUSING COURT

LARA ZUREIKAT, Plaintiff VS. TERESA PREVITE, Defendant

Docket # CIVIL ACTION NO. 07H84CV000222

Parties: LARA ZUREIKAT, Plaintiff VS. TERESA PREVITE, Defendant

Judge: /s/JEFFREY M. WINIK

FIRST JUSTICE

Date: November 16, 2007

ORDER FOR ASSESSMENT OF DAMAGES AND ENTRY OF FINAL JUDGMENT

This matter is before the Court on the plaintiffs Motion for Assessment of Damages. The plaintiff commenced this action by filing a verified complaint in March 2007. The plaintiff alleges that the defendant wrongfully retained $5,500.00, representing a deposit she gave the defendant to secure an apartment. The defendant was served with a summons and complaint, but did not appear or file a responsive pleading. The defendant was defaulted on June 6, 2007. The defendant was sent a hearing notice but she did not appear at the assessment of damages hearing on November 7, 2007.

Based upon the undisputed facts set forth in the verified complaint, the defendant wrongfully retained the plaintiffs $5,500.00 deposit in breach of the sublease agreement (Count II), in breach of the covenant of good faith and fair dealing (Count III), in violation of G.L. c. 186, s. 15B (Count IV), as an act of unjust enrichment and conversion (Count V), and in violation of G.L. c. 93A (Count VI).

The court assesses actual damages of $5,500.00, trebled to $16,500.00 pursuant to G.L. c. 93A.[1] The Court awards the plaintiff reasonable attorney’s fees of $751.50 and costs of $174.00.

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[1] The plaintiffs claims arise from the same operative facts. The plaintiff is not entitled to cumulative damages. Accordingly, I shall award damages under G.L. c. 93A. This provides the plaintiff with the largest recovery. See, Wolfberg v. Hunter, 385 Mass. 390 (1982).

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ORDER FOR JUDGMENT

Based upon all the evidence presented at the hearing in light of the governing law, it is ORDERED that judgment enters for the plaintiff on Counts I through VI of the Verified Complaint, with damages awarded under G.L. c. 93A in the amount of $16,500.00 plus attorney’s fees of $751.50 and costs of $174.00.

cc: Stephen A. Greenbaum, Esq.

Natalie R. Megaloudis, Esq.

Teresa Previte

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End Of Decision

HOUSING COURT

RANDY S. JONES and MARY L. SPENCER, Plaintiffs VS. ABBEY LANDMARK SQUARE, LLC and GARRISON SQUARE MANAGEMENT, INC., Defendants

Docket # CIVIL ACTION DOCKET NO. 01-1184-CV-001330

Parties: RANDY S. JONES and MARY L. SPENCER, Plaintiffs VS. ABBEY LANDMARK SQUARE, LLC and GARRISON SQUARE MANAGEMENT, INC., Defendants

Judge: /s/JEFFREY M. WINIK

FIRST JUSTICE

Date: November 14, 2007

MEMORANDUM OF DECISION AND ORDER ON PLAINTIFF’S MOTION FOR POST-JUDGMENT INTEREST ON AWARD OF ATTORNEY FEES AND COSTS FROM DATE OF JUDGMENT PURSUANT TO MASS. R. CIV. P. 54(F)

Introduction

For the reasons set forth in this memorandum, Plaintiffs Motion for Post-Judgment Interest on Award of Attorney Fees and Costs from Date of Judgment Pursuant to Mass. R. Civ. P. 54(1) is ALLOWED.

Discussion

This civil action involves a dispute arising from a residential tenancy between the plaintiffs (tenants) and the defendants (owner and managing agent). The plaintiffs asserted claims for interference with quiet enjoyment (Count I), breach of the implied warranty of habitability (Count II), retaliation (Count III), wrongful retention of a security deposit (Count IV) and unfair trade practices (Count V).

The plaintiffs prevailed on their claims for breach of quiet enjoyment, breach of the implied

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warranty of habitability, wrongful retention of a security deposit and unfair trade practices. The plaintiffs were awarded: (1) $6,555.00 on their interference with quiet enjoyment claim; (2) $4,151.36 on their wrongful retention of a security deposit claim; (3) $4,485.00 on their claim for unfair trade practices; (4) $38,000.00 in attorney’s fees and (5) $2,563.50 in costs.[1] Final judgment in this action entered on March 7, 2007 with the provision that the Clerk would add the appropriate statutory interest to the damages awarded the plaintiffs. On April 5, 2005, the defendants filed a notice of appeal. On September 11, 2007, the Appeals Court dismissed the appeal.

Final judgment having been entered and the appeal dismissed, the plaintiffs are now seeking clarification as to the amount of pre- and post judgment interest to which they are entitled. Specifically, they are seeking clarification as to whether they are entitled to post judgment interest on the amount of attorney’s fees and costs awarded to them.

In Massachusetts, “[e]very judgment for the payment of money shall bear interest up to the date of payment of said judgment.” Mass. R. Civ. P. 54(f). Pre judgment interest is calculated from the time the action was commenced (or, in an action for breach of contract, from the date of the breach or demand for payment) to the date of the verdict or order for judgment. G.L. c. 231, s.s. 6B, 6C and 6H.[2] Pre judgment interest is calculated at a rate of 12% per annum unless otherwise provided by law. Id. Post judgment interest is calculated at a rate of 12% per annum from the date

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[1] The amount awarded to the plaintiffs on their claim for unfair trade practices includes the amount that they were awarded on their breach of the implied warranty of habitability claim, which was $1,182.50.

[2] The first sentence of G.L. c. 235, s. 8 provides for the payment of interest for the period of time running from the date of the verdict or order for judgment to the date of entry of judgment. The date of the final order for judgment and the date of entry of the judgment are the same in this case (March 7, 2007). Therefore, any difference between the method of calculation of interest from the date of the commencement of the action to the date of the order for judgment and the calculation of interest from the date of the order for judgment to the date of the entry of the judgment is immaterial.

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of entry of judgment. G.L. c. 235, s. 8. “[Post judgment] interest from the date of entry of judgment to the date of execution … shall … be computed by the clerk, and the amount of such interest shall be stated in the execution ….” Mass. R. Civ. P. 54(f).

While pre judgment interested is calculated on compensatory damages only, post judgment interest is calculated on the total judgment amount, including the pre judgment interest and any punitive damages and non-compensatory attorney’s fees and costs.

See City Coal Co. of Springfield v. Noonan, 424 Mass. 693, 695 (1997) (holding post judgment interest is calculated on the entire judgment amount, including pre judgment interest); Osborne v. Biotti, 404 Mass. 112, 114-115 (1989) (holding award of costs was a judgment for the payment of money and thus was subject to post judgment interest); Nardone v. Patrick Motor Sales, Inc., 46 Mass.App.Ct. 452, 453-454 (1999) (holding award of attorney’s fees and punitive damages were subject to post judgment interest).

Order Directing Calculation of Interest

The Court directs the Clerk to calculate the pre- and post judgment interest due the plaintiff in the following manner.

Pre-judgment Interest. Pre judgment interest shall be calculated at a rate of 12% per annum from the date this action was commenced (11 /29/2001) to the date of entry of judgment (03/07/2007) on the $6,555.00 awarded to the plaintiffs on their interference with quiet enjoyment claim (Count I).

Pre-judgment interest shall be calculated at a rate of 5% per annum, pursuant to G.L. c. 186, s. 15B(7), from the date the plaintiffs’ payment of the security deposit became due (6/1/2000) to the date of entry of judgment (03/07/2007) on the amount of compensatory damages, $109.36, awarded to the plaintiffs on their wrongful retention of a security deposit claim (Count IV).[3]

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[3] Under G.L. c. 231, s. 6H, pre judgment interest is calculated at 12% per annum unless otherwise provided by law. G.L.

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Pre-judgment interest shall be calculated at a rate of 12% per annum from the date this action was commenced (11/29/2001) to the date of entry of judgment (03/07/2007) on the actual/consequential portion of damages awarded to the plaintiffs, $2,300.00, on their G.L. c. 93A claim (Count V).

Post-Judgment Interest. The amount of post judgment interest to be included in the execution shall be calculated at a rate of 12% per annum from the date of entry of judgment (03/07/2007) through the date of execution on the entire amount of the judgment, including the punitive damages, costs and attorney’s fees awarded the plaintiff (a total of $55,754.86) and on the pre judgment interest as calculated by the Clerk.

cc: Marian Glaser, Esq.

Chris C. Tsouros, Esq.

Robert L. Lewis, Clerk-Magistrate

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c. 186, s. 15B(7) provides for the application of a 5% interest rate from the time payment of the security deposit became due. The amount of compensatory damages was calculated as follows: The

portion of the plaintiffs security deposit that should have been returned to them ($2,021.00) less the amount actually returned to them ($1,911.64).

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End Of Decision

HOUSING COURT

JOSEPH ONUJIOGWU VS. ABDIRISHID ABDULAHI, et al.

BOSTON DIVISION

Docket # CIVIL ACTION NO. 04H84CV000205

Parties: JOSEPH ONUJIOGWU VS. ABDIRISHID ABDULAHI, et al.

Judge: /s/Jeffrey M. Winik

First Justice

Date: December 21, 2007

ORDER

Order for Award of Attorney’s Fees and Costs; and

Order for Entry of Final Judgment

Attorney’s Fees and Costs

This matter is before the Court on the defendants’ post-trial Motion for Attorney’s Fees and Costs.

The claims and counterclaims in these consolidated civil actions involve six residential apartments at 150 Walnut Avenue, in Boston. The plaintiff (“landlord”) brought rent claims against each defendant (“tenant”). The tenants from each apartment asserted separate counterclaims against the landlord for breach of the implied warranty of habitability, interference with quiet enjoyment (G.L. c. 186, s. 14), retaliation (G.L. c. 186, s. 18) and violation of security deposit statute (G.L. c. 186, s. 15B). These claims and counterclaims were consolidated for trial.[1]

After a four-day jury trial, a jury returned six separate special verdicts with respect to each apartment. The jury found in favor of each tenant on their breach of implied warranty,

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[1] The remaining counterclaims were settled, dismissed or waived prior to trial: claims for rent overcharge, declaratory judgment, and property damage.

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interference with quiet enjoyment and retaliation counterclaims.[2] The jury found in favor of each tenant on the landlord’s rent claim. The jury found in favor of the landlord on the tenants’ security deposit counterclaims.

G.L. c. 186, s.s. 14 and 18 provide that a prevailing party shall be awarded reasonable attorney’s fees and costs incurred in connection with said action. As the prevailing parties on their statutory quiet enjoyment and retaliation counterclaims, the tenants are entitled to recover reasonable attorney’s fees and costs.

The court should normally use the “lodestar” method to calculate the amount of a statutory award of attorney’s fees. Under the “lodestar” method, “[a] fair market rate for time reasonably spent in litigating a case is the basic measure of a reasonable attorney’s fee under State law as well as Federal law.” Fontaine v. Ebtec Corp., 415 Mass. 309, 325-26 (1993). However, the actual amount of the attorney’s fee is largely discretionary with the trial court judge. Linthicum v. Archambault, 379 Mass. at 388. An evidentiary hearing is not required. Heller v. Silverbranch Const. Corp., 376 Mass. 621, 630-631 (1978). In determining an award of attorney’s fees, the Court must consider “the nature of the case and the issues presented, the time and labor required, the amount of the damages involved, the result obtained, the experience, reputation and ability of the attorney, the usual price charged for similar services by other attorneys in the same area, and the amount of awards in similar cases. Linthicum v. Archambault, supra. at 381.388-9. See Heller v. Silverbranch Cons’. Corp., supra. at 629 (“the standard of reasonableness depends not on what the attorney usually charges but, rather, on what his services were objectively worth . . . Absent specific direction from the Legislature, the crucial factors in making such a determination are: (1) how long the trial lasted, (2) the difficulty of the legal and factual issues involved, and (3) the degree of competence demonstrated by the attorney”). The prevailing party is entitled to recover fees and costs for the statutory claims on which she was successful. “As a rule, where a single chain of events gives rise to both a

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[2] The jury awarded damages to each tenant household on the warranty/statutory quiet enjoyment counterclaims as follows: Apt. IL – $3,400.00; Apt. 1R – $3,400.00; Apt. 2L – $5,200.00; Apt. 2R – $4,200.00; Apt. 3L – $4,800.00; Apt. 3R – $4,200.00.

The jury awarded damages on the statutory retaliation counterclaims to each tenant as follows: Apt. 1L – $2,550.00; Apt.

2R – $2,550.00; Apt. 2L – $3,900.00; Apt. 2R – $3,150.00; Apt. 3L – $3,600.00; Apt. 3R – $3,150.00.

The damages awarded to the six tenant households on all claims totals $44,100.00.

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common law and a [statutory] claim, apportionment of legal effort between the two claims is not necessary …” Hanover Insurance Company v. Sutton, 46 Mass. App. Ct. 153, 176-77 (1999), quoting from Industrial Gen. Corp. v. Sequsia Pac. Sys. Corp., 849 F. supp. 820, 826 (D. Mass. 1994).

I have reviewed the affidavit and time records submitted by the tenants’ attorney, Stephen J. Guillette. During the five years that he has litigated this case, Attorney Guillette represented his client with skill, diligence and professionalism. In the face of a stem defense presented by the landlord’s attorney, Attorney Guillette obtained a verdict that provided his clients with a substantial financial recovery.

I find that the time Attorney Guillette spent on pre-trial investigation, discovery, trial preparation and trial over a five-year period – 116.80 hours – provides a reasonable starting point for calculating the statutory attorney’s fee. This represents only 19.46 hours per tenant-household. It is obvious to me that Attorney Guillette was careful to avoid duplication of effort and duplication of billing.[3] Based upon Attorney Guillette’s experience, his demonstrated litigation and trial skills and the complexity of the claims he presented at trial, I find that Attorney Guillette is entitled to compensation at his requested reasonable hourly rate of $250.00.[4]

The tenants may not recover attorney’s fees for unrelated claims or for claims or legal theories upon which they did not prevail. The facts necessary to establish the quiet enjoyment and warranty claims (which in effect also constituted the tenants’ defense to the landlord’s rent claims) were essentially the same. Attorney Guillette would have spent the same amount of time to development his quiet enjoyment claim even if he had not pleaded a warranty claim. Attorney Guillette spent a small amount of time on the preparation and presentation of the tenants’ security deposit claims (he did not present any evidence other than the tenants’ testimony on this

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[3] 43.5 hours of that total represents actual trial preparation and trial time between September 4 and 14, 2007. Given the number of witnesses who testified at trial, I conclude that this time is fair and reasonable.

[4] Attorney Guillette has been engaged in the practice of law since 1997. He demonstrated excellent courtroom and advocacy skills during the trial of this case.

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issue).[5] I conclude that a 6-hour reduction in Attorney Guillette’s “lodestar” hours (1 hour per tenant household) represents work performed on the security deposit claims.

Accordingly, I find that Attorney Guillette performed 110.8 hours of work reasonably attributable to the statutory claims.[6]

Attorney Guillette has also requested that the fee award include compensation for 30.7 hours of work performed by his legal assistant (paralegal), Joanne Elaine Ambrosino, at an hourly rate of $37.00. The landlord does not object to this portion of the fee request. I find the hours spent by the paralegal at the requested hourly rate to be fair and reasonable.

After considering all of the factors set forth above, I award the tenants reasonable attorneys’ fees in the amount of $28,835.00.[7]

The tenants have also requested that Attorney Guillette be awarded his reasonable costs. I have reviewed Attorney Guillette’s affidavit and disbursement records. I find that the costs totaling $2,408.63 (including printing costs, deposition costs, service of process costs, mailing costs, photocopy costs and entry fees) are related to the statutory claim, and are fair and reasonable.

The award of attorney’s fees and costs are without interest. See, Patry v. Liberty Mobilehome Sales, Inc., 394 Mass. 270, 272 (1985).

No Cumulative Damages Award

The tenants are not entitled to recover cumulative damages arising from the same facts under every theory of recovery, but they are entitled to recover damages under the theory that results in the largest award of damages. Wolfberg v. Hunter, 385 Mass. 390 (1982). The tenants’ breach of implied warranty and statutory quiet enjoyment claims arise from the same

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[5] The landlord’s attorney points out that the parties resolved the tenants’ property damage claims (by means of a settlement with the landlord’s insurance carrier). He suggests that Attorney Guillette’s statutory attorney fee award should be reduced because he took a fee from the proceeds of that settlement. The amount of that settlement and the amount of any fee that Attorney Guillette may have taken is not before the Court. In any event, Attorney Guillette is entitled to recover a reasonable attorney’s fee based upon the work he performed on the case that was actually tried in the Housing Court. The plaintiff’s attorney has not directed the Court to any specific entry in Attorney Guillette’s time records that reflect work directed solely to the insurance claim.

[6] Attorney Guillette did not submit an affidavit from Attorney Philip J. Puglisi documenting any work that he may have performed on behalf of the tenants. Accordingly, I shall not include Attorney Puglisi’s time in the calculation of the fee award.

[7] Attorney Guillette: 110.80 hrs x $250.00 = $27,700.00. Ms Ambrosino: 30.7 hrs x $37.00 = $1,135.90.

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transactions, and are based upon the same facts. I shall award damages under G.L. c. 186, s. 14 since that claim entitles the tenants to an award of attorney’s fees and costs.

ORDER FOR JUDGMENT

Based upon all the credible testimony and evidence presented at trial in light of the governing law, it is ORDERED that:

1. Upon the verdict of the jury, judgment enters for each defendant on the breach of implied warranty of habitability and violation of G.L. c. 186, s. 14 counterclaims for damages (plus statutory interest to be calculated by clerk) and reasonable attorney’s fees and costs, with damages awarded under G.L. c. 186, s. 14 as follows:

A. Abdirashid Abdulahi, Abdishakur Ali and Mohamoud Yusuf (Apt. IL): $3,400.00;

B. Ali M. Ahmed and Halimo Issee (Apt. 1R): $3,400.00;

C. Abdirahman Osman and Sahra Youssuf (Apt. 2L): $5,200.00;

D. Mohamed Ahmed and Abdirahman Jealani (Apt. 2R): $4,200.00;

E. Abdirashid S. Abdualhi and Seynoib Mohamed (Apt. 3L): $4,800.00;

F. Ibado Jama (Apt. 3R): $4,200.00;

2. Upon the verdict of the jury, judgment enters for each defendant on the G.L. c. 186, s. 18 counterclaims for damages (plus statutory interest to be calculated by clerk) and reasonable attorney’s fees and costs, with damages awarded as follows:

G. Abdirashid Abdulahi, Abdishakur Ali and Mohamoud Yusuf (Apt. 1L): $2,550.00;

H. Ali M. Ahmed and Halimo Issee (Apt. 1R): $2,550.00;

I. Abdirahman Osman and Sahra Youssuf (Apt. 2L): $3,900.00;

J. Mohamed Ahmed and Abdirahman Jealani (Apt. 2R): $3,150.00;

K. Abdirashid S. Abdualhi and Seynoib Mohamed (Apt. 3L): $3,600.00;

L. Ibado Jama (Apt. 3R): $3,150.00;

3. The defendants are awarded reasonable attorney’s fees of $28,835.00 and reasonable costs of $2,408.63 pursuant to G.L. c. 186, s.s. 14 and 18;

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4. Upon the verdict of the jury, judgment enters for each defendant on the plaintiff’s rent claim.

5. Judgment enters for the plaintiff dismissing all remaining counterclaims.

SO ORDERED.

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End Of Decision

HOUSING COURT

BOSTON TRAILER PARK TENANTS ASSOCIATION, INC. d/b/a TRAILER PARK TENANTS ASSOCIATION VS. THE COMMUNITY BUILDERS, INC., BOSTON TRAILER PARK, LLC and FELICIA JACQUES

BOSTON DIVISION

Docket # CIVIL ACTION NO. 07-CV-00344

Parties: BOSTON TRAILER PARK TENANTS ASSOCIATION, INC. d/b/a TRAILER PARK TENANTS ASSOCIATION VS. THE COMMUNITY BUILDERS, INC., BOSTON TRAILER PARK, LLC and FELICIA JACQUES

Judge: /s/Jeffrey M. winik

First Justice

Date: December 21, 2007

MEMORANDUM OF DECISION AND ORDERS ON (1) DEFENDANTS THE COMMUNITY BUILDERS, INC. AND BOSTON TRAILER PARK, LLC’S MOTION TO, DISMISS, (2) DEFENDANT FELICIA JACQUES’S MOTION TO DISMISS, AND (3) PLAINTIFF’S MOTION FOR FEES AND COSTS

Introduction

This civil action arises out of the defendants’ alleged failure to comply with written and oral representations made to the plaintiff in connection with the transfer of ownership and renovation of the Boston Trailer Park.

Defendants’ Motions to Dismiss

When considering the sufficiency of a complaint on a motion to dismiss pursuant to Mass. R. Civ. P. 12(b)(6), the court must accept as true the factual allegations set forth in the complaint, as well as any inferences favorable to the plaintiff that can be drawn from those facts. Eyal v. Helen Broadcasting Corp., 411 Mass. 426, 429 (1991). The complaint should be dismissed only where it appears beyond doubt that the plaintiff cannot prove any set of facts that would entitle him to relief under any theory pleaded in the complaint. Nader v. Citron, 372 Mass. 96, 98 (1977); Whitinsville Plaza, Inc. v. Kotseas, 378 Mass. 85, 89 (1979).

For purposes of ruling on the motion to dismiss I shall accept as true the following facts set forth in the plaintiffs’ complaint.

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Plaintiff Boston Trailer Park Tenants Association, Inc. (“plaintiff’ or “the tenants association”) is a non-profit

association whose members are tenants living in the Boston Trailer Park (“the trailer park”). The trailer park is located in the West Roxbury neighborhood of Boston.

Defendant Community Builders, Inc. (“Community Builders”) is a non-profit housing management and development company. Defendant Boston Trailer Park, LLC (“BTP”) is a limited liability company wholly owned and controlled by Community Builders.[1] BTP holds title to and manages the trailer park. Defendant Felicia Jacques (“Jacques”) is employed by the corporate defendants and, at all times relevant to this action, was authorized to represent the corporate defendants in their dealings with the tenants association.

From 1987 until May 2004, the trailer park was owned and operated by Clair Trust Realty and Clair Recreation Center (collectively, “Clair”). The property fell into disrepair under Clair’s ownership. Several lawsuits involving Clair, the tenants association, and the City of Boston were commenced during Clair’s ownership of the trailer park. As part of a universal settlement of those lawsuits, Clair agreed to donate approximately two-thirds of the property on which the trailer park sat so that it could be maintained as an affordable manufactured housing community.[2] In exchange, the City of Boston agreed to approve Clair’s plans for commercial use of the portion of the trailer park property of which it was maintaining ownership.

As part of the universal settlement it was agreed that Clair would transfer title to the trailer park to the corporate defendants. The corporate defendants agreed to renovate and manage the trailer park with the expectation that at some point in the future the members of the tenants association would purchase the trailer park. The corporate defendants and Clair negotiated the terms for the initial transfer of the trailer park.

Before the City of Boston would approve the universal settlement agreement, it required the corporate defendants and the tenants association to enter into a written understanding

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[1] Community Builders and BTP shall also be referred to collectively as “the corporate defendants.”

[2] “Any lot or tract of land upon which three or more manufactured homes occupied for dwelling purposes are located, including any buildings, structures, fixtures and equipment used in connection with manufactured homes shall be defined as a manufactured housing community.” G.L. c. 140, s. 32F.

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regarding the improvements the corporate defendants would make to the trailer park, the rent to be charged and the terms for the future transfer of the ownership and management of the trailer park to the tenants association. Jacques represented the corporate defendants in negotiations with the tenants association.

The negotiations between Clair and the corporate defendants

regarding the transfer the property and between the tenants association and the corporate defendants regarding of the future plans for the trailer park lasted approximately five years. During the negotiation period, Jacques, acting on behalf of the corporate defendants, met with the members of the tenants association providing them with plans and cost analyses for the renovation project and projections on the rent increases needed to facilitate the project.

Initially, Jacques informed the tenants association that the corporate defendants would need to borrow $1.8 million dollars to complete the renovation work. She also told them that the tenants’ rents would need to be increased by approximately five percent to cover the renovation, maintenance and management costs associated with the operation of the trailer park. At some later point during the negotiation, Jacques represented to the tenants association that the required rent increase could reach, but would be no higher, than six percent. The tenants association expressed their concern to Jacques that the further deterioration of the trailer park that had occurred during the five-year negotiation period would increase the renovation costs. Jacques told the tenants association that the projected costs would not increase because Clair had agreed to pay for many renovation-related costs including removal of abandoned trailers, relocation of the trailers from the portion of the property retained by Clair and erection of a noise/light barrier.

On March 18, 2004, after years of negotiation, the tenants association and the corporate defendants executed a memorandum of understanding and a separate agreement giving the tenants association an option to purchase the trailer park. The option to purchase granted the tenants association the right to purchase the trailer park within a six-year period at a price equal to the corporate defendants’ financial investment in it. The memorandum of understanding set forth the plan by which Clair would transfer the trailer park to the corporate defendants and the plan by which the corporate defendants would manage and renovate the trailer park until the

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tenants association exercised its option to purchase the property. The memorandum of understanding also provided that the corporate defendants would consult with the tenants association before implementing any changes to the trailer park’s rules and regulations.

After the tenants association executed the memorandum of understanding and the option to purchase, the corporate defendants informed them that the proposed scope of the renovation project could not be completed unless it obtained additional financing on top of the originally stated $1.8 million loan amount. Concerned that the debt service costs associated with an increase in the loan amount would result in higher rent increases and that the corporate defendants’ increased investment would make the option purchase price cost-prohibitive, the tenants association agreed that the corporate defendants could reduce the scope of the renovation

project.

With that modified agreement in place, the corporate defendants borrowed $1.88 million to fund the renovation of the trailer park. Clair then transferred to the corporate defendants title to the trailer park. The corporate defendants assumed management of the trailer park and began the renovation project.

The plaintiff alleges in its complaint that the corporate defendants mismanaged the renovation project. They further allege that the mismanagement resulted in further reductions in the scope of the project and delayed the project’s completion.

On or about April 10, 2006, the corporate defendants petitioned the Boston Rent Equity Board (“the BREB”) to increase the maximum rents it could charge the trailer park’s tenants. The plaintiff alleges in its complaint that notwithstanding the earlier representations that the defendants made to the tenants association that the rent increases would not exceed six percent, the corporate defendants requested a rent increase that, if approved, would have resulted in a 134% increase over what the tenants had been paying for rent. The BREB set a new maximum allowable rent that the corporate defendants could charge for each rental unit at $427.00 per month. This represented a 73% increase in the average rent paid by the trailer park tenants. The corporate defendants chose to implement these rent increases in the full amount authorized by the BREB. The corporate defendants sent notices to quit to all the trailer park tenants. The

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notices informed the tenants that their tenancies would be terminated as of September 30, 2006, but that they could continue to occupy their units by entering into new leases at a monthly rent of $439.00 ($427.00 per month plus a $12.00 monthly licensing fee).

On September 7, 2006, the tenants association sent a G.L. c 93A demand letter to the defendants, alleging that they had engaged in unfair and deceptive acts and practices in connection with the ownership, management and renovation of the trailer park.

Later in September 2006, the corporate defendants served new notices to quit on all of the tenants. The notices offered the tenants new leases at a monthly rent of $427.00 (inclusive of the $12.00 monthly licensing fee). The proposed new leases contained changes to the trailer park’s rules and regulations that had never been presented to or agreed upon by the tenants’ association.

On or about October 10, 2006, the corporate defendants sent the tenants association a letter in response to its G.L. c. 93A demand letter. The letter stated that the corporate defendants’ decision to reduce the proposed new monthly rent from $439.00 to $427.00 (inclusive of the $12.00 monthly licensing fee) constituted a reasonable response to the tenants association’s demands set forth in its Chapter 93A letter. On or about October 25, 2006, the tenants association rejected the settlement offer.

On November 1, 2006, the corporate defendants commenced charging the trailer park tenants a monthly rent of $427.00.

The tenants association commenced this civil action in April 2007. The plaintiff’s complaint alleges, based upon the facts set

forth above, that the corporate defendants and Jacques engaged in acts that constituted fraud, negligent misrepresentation and violations of G.L. c. 93A. The tenants association claims that as a result of the defendants’ actions, its members have been harmed by (1) having to pay rents well in excess of those promised by the defendants, (2) being subject to restrictive rules and regulations that the corporate defendants instituted without first consulting with the tenants association and obtaining its consent, and (3) the resulting increase in the option purchase price (based upon the corporate defendants’ increased investment) they would have to pay to purchase the trailer park.

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The defendants argue in their motions to dismiss that in order for the tenants association to prevail on any of the claims contained in its complaint, the tenants association must establish that the maximum allowable rents set by the BREB were not supported by substantial evidence or was based upon an error of law. They argue that the tenants association cannot collaterally attack the BREB maximum rents in this action as a matter of law because the tenants failed to exhaust their administrative remedies available in the BREB proceeding. Specifically, the tenants did not appeal the 2006 BREB order that established the maximum allowable rents at $427.00 per month.

Jacques makes an additional argument as to why the tenants association’s complaint fails to state a claim upon which relief can be granted with respect to her individually. Jacques argues that all of the claims asserted against her are based on actions she took while working within the scope of her employment with the corporate defendants.[3] Jacques argues that under the doctrine of respondeat superior, the corporate defendants are the only parties responsible for any injury to the tenants association resulting from actions she took within the scope of her employment. She argues that she cannot be held individually liable for such actions.

In opposition to the defendants’ motions to dismiss, the tenants association argues that none of its claims are in any way dependent on a successful challenge of the BREB’s decision to raise the maximum lawful rents to $427.00. The tenants association argues that its claims arise from the defendants’ deliberate misrepresentations that the tenants’ rents would be increased by no greater than 6% on average and that such increase would be sufficient to cover the management and renovation costs. The tenants association further argues that under the principles of agency law, Jacques can be held personally liable for her own conduct, even if she was acting solely in her capacity as the corporate defendants’ employee at all relevant times.

After considering the arguments presented and considering the facts set forth in the complaint in the light most favorable to the tenants association, I conclude Counts I-V of the plaintiff’s complaint state claims upon which relief can be granted as against Community

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[3] Jacques is named as a defendant in only two of the five counts contained in its complaint (Count I-fraud/negligent misrepresentation/fraud in the inducement and Count III-unfair and deceptive acts and practices).

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Builders and BTP. I further conclude that Count I (fraud/negligent misrepresentation/fraud in the inducement) and Count III (unfair and deceptive acts and practices) state claims upon which relief can be granted as against Jacques.

Failure to Exhaust Administrative Remedy Argument. Contrary to the defendants’ argument in support of their motion to dismiss, the tenants association’s claims do not challenge the maximum rents for the trailer park established by the BREB in July 2006 and are not dependant on overturning or vacating the BREB’s decision.[4] The gravamen of the tenants associations’ claims as they relate to the rent increase is not that the BREB erred when it set monthly maximum allowable rents of $427.00 but that the corporate defendants, by raising the tenants’ monthly rents to $427.00, acted in a manner that was contrary to its oral and written representations to the tenants association that the tenants’ rents would not increase by more than six percent during the option exercise period for reasons related to renovation, capital improvement and management costs.

Count I (fraud/negligent misrepresentation/fraud in the inducement). “In order to establish [a claim for fraudulent misrepresentation], the plaintiff, at a minimum, must establish that the defendant made a false representation of a material fact with knowledge of its falsity for the purpose of inducing the plaintiff to act thereon, and that the plaintiff reasonably relied upon the representation as true and acted upon it to its damage.” Russell v. Cooley Dickinson Hospital, Inc., 437 Mass. 443, 458 (2002). A claim for negligent misrepresentation is the same as a claim sounding in fraud except there is no requirement to show that the defendant knew that the statements made were false or had an intent to deceive. Marram v. Kobrick Offshore Fund, Ltd., 442 Mass. 43, 59 n. 25 (2004). To establish a claim for fraud in the inducement, a plaintiff must show misrepresentation of a material fact that was made to induce action and reasonable reliance on the false statement to its detriment. Commerce Bank & Trust Co. v. Hayeck, 46 Mass. App. Ct. 687, 692 (1999). “Statements of present intention as to future conduct may be the basis for a fraud action if … the statements misrepresent the actual intention of the speaker

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[4] The BREB is authorized to establish maximum lawful rents that the owner may (but is not required) to charge.

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and were relied upon by the recipient to his damage.” McEvoy Travel Bureau, Inc. v. Norton Co., 408 Mass. 704, 709 (1990).

The plaintiffs complaint sets forth facts alleging that Jacques, acting within the scope of her authority as the agent the corporate defendants, knowingly or negligently made certain false representations, that the misrepresentations were made to induce the tenants association to enter into agreements that would enable the corporate defendants to purchase and manage the trailer park and that the tenants association reasonably relied upon the misrepresentations to its detriment. The complaint alleges that the corporate defendants, through their agent, Jacques, intentionally or negligently misrepresented to the tenants association that: (1) rent increases would not exceed six percent during the option period; (2) such amount would be sufficient to cover the cost of the renovation project; and (3) the corporate defendants would consult with and obtain the tenants association’s consent before instituting new rules and regulations for the trailer park. The complaint further alleges that (1) the defendants’ misrepresentations were made to induce the tenants association to enter into the memorandum of understanding, an agreement required by the City of Boston as a pre-condition to the transfer of the trailer park from Clair to the corporate defendants and (2) the tenants, who are members of the plaintiff tenants association, suffered economic loss and damage.

These factual allegations are sufficient to state claims for fraud, negligent misrepresentation and/or fraud in the inducement against Jacques and the corporate defendants.

Count II (promissory estoppel). A claim based upon detrimental reliance (sometimes called “promissory estoppel”) sounds in contract and permits recovery where a promisor makes a promise which he should reasonably expect to induce action or forbearance of a definite and substantial character on the part of the promisee, the promisee does act or forbear from acts in reliance on the promise and injury and injustice to the promisee can be avoided only by enforcement of the promise. Loranger Construction Co. v. E. F. Hauserman Co., 6 Mass.App.Ct. 152, 154-155 (1978), aff’d, 376 Mass. 757.

The plaintiffs complaint sets forth facts alleging that the corporate defendants made certain promises to the tenants association, that those promises were made knowing that the

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tenants association would act or change its position in reliance on the promises and that the tenants association’s members (the tenants) will suffer financial harm resulting in an injustice unless the corporate defendants act in accordance with their promises. Specifically, the complaint alleges that: (1) the corporate defendants promised the tenants association that it would not increase the tenants’ rents by more than six percent and that such increase would be sufficient to cover the management and renovation costs; (2) the corporate defendants made these promises to induce the tenants association to sign the memorandum of understanding (which the City of Boston required the corporate

defendants to obtain before it would approve the transfer of the ownership and management of the park); (3) the tenants association, acting in reliance on the corporate defendants’ promises, signed the memorandum of understanding; and (4) unless the promises made by the corporate defendants are enforced, the members of the tenants association will be harmed by having to pay rents well in excess of those promised and/or having to pay a significantly higher price to exercise its option to purchase the trailer park.

These factual allegations are sufficient to state a detrimental reliance claim against the corporate defendants.

Count III (unfair and deceptive acts and practices). An act or practice is deceptive and one that causes injury if it could reasonably be found to have caused a person to act differently from the way he otherwise would have acted if he knew the truth about the matter. Aspinall v. Philip Morris Cos., 442 Mass 381, 394 (2004). A negligent or careless misrepresentation of a fact, the truth of which was reasonably capable of ascertainment by the maker, may also constitute a deceptive act or practice. Golber v. BayBank Valley Trust Co., 46 Mass.App.Ct. 256, 261 (1999). In order to recover damages under G. L. c. 93A, a plaintiff must show a causal connection between its loss and the defendant’s unfair and deceptive acts and practices. Kohl v. Silver Lake Motors, Inc., 369 Mass. 795, 800-801 (1976).

With regard to its claim that the defendants committed unfair and deceptive acts and practices, the plaintiff’s complaint alleges that: (1) the defendants are engaged in the business of developing and managing low and middle income housing; (2) the defendants knowingly or negligently made certain false representations to induce the tenants association to enter into

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agreements that would entitle the corporate defendants to purchase and manage the trailer park (see factual allegations at pp. 3-4, supra.); and (3) as a result of the defendants’ unfair and deceptive acts and practices, the trailer park tenants have suffered and will in the future suffer economic loss by having to pay rents well in excess of those promised and/or having to pay an inflated price to exercise its option to purchase the trailer park.

These facts are sufficient to state claims for violation of G.L. c. 93A against the defendants.

Counts IV and V (declaratory and injunctive relief). Pursuant to G.L. c. 231A, s. 1, a party may seek a binding declaration as to its rights, duties, status and other legal relations regardless of whether any other relief could be obtained. A party is entitled to injunctive relief where the party has no adequate remedy at law. See e.g. Packaging Industries Group, Inc. v. Cheney, 380 Mass. 609, 616 (1980) (preliminary injunction).

The tenants association’s complaint sets forth facts sufficient to state claims that an actual case or controversy exists between the parties that entitles it to a declaration by this Court of the rights and obligations of the parties and, if necessary, an injunction.

Jacques’ Respondeat Superior Argument. The fact that Jacques

was an agent of the corporate defendants does not insulate her from liability for torts she commits while acting within the scope of that agency.

The doctrine of respondeat superior is typically applied to determine whether a principal (or employer) should be held liable for the acts of its agent (or employee). Howard v. Town of Burlington, 399 Mass. 585, 589 (1987). It is not a doctrine that insulates an agent from the consequences of her own actions. The agent remains liable to the plaintiff for her own tortious or intentionally wrongful acts. Skowronski v. Sachs, 62 Mass.App.Ct. 630, 634 (2004) (employee of jewelry store was liable under G.L. c. 93A for making misrepresentations to a customer about the quality of a diamond). Under principles of agency law, an agent who commits a tort is not relieved from liability because she acted at the command of or on account of her principal. Restatement (Second) of Agency, s. 343; Somers v. Osterheld, 335 Mass. 24, 28 (1956).

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The fact that Jacques was acting as an agent for the corporate defendants when she made the alleged misrepresentations that form the basis of the plaintiffs fraud and deceptive practices claims does not insulate her as a matter of law from individual liability for the damages resulting from such misrepresentations.

Plaintiff’s Motion for Fees and Costs

The plaintiff requests, pursuant to G.L. c. 231 s. 6F, an award of costs and attorney’s fees for having to oppose the defendants’ motions to dismiss, which it alleges were wholly frivolous and based on blatant misstatements of the tenants association’s claims as well as the relevant law. G.L. c. 231, s. 6F provides for an award of costs and attorney’s fees upon a finding that all or substantially all of a party’s claims or defenses are wholly insubstantial, frivolous and not advanced in good faith.

The plaintiffs G.L. c. 231, s. 6F motion is premature. The defendants have yet to file answers in this action. The Court has not made rulings on the plaintiffs claims or the additional defenses that the defendants may and are still entitled to assert in their answers.

Conclusion

For these reasons:

1. Defendants The Community Builders, Inc. and Boston Trailer Park, LLC’s Motion to Dismiss is DENIED;

2. Defendant Felicia Jacques’s Motion to Dismiss is DENIED;

3. The plaintiffs Motion for Fees and Costs is DENIED without prejudice.

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End Of Decision

HOUSING COURT

FELIX OSAGIE, Plaintiff VS. JEAN-CLAUDE MONDELUS, Defendant

Docket # SUMMARY PROCESS NO. 07H84SP004251

Parties: FELIX OSAGIE, Plaintiff VS. JEAN-CLAUDE MONDELUS, Defendant

Judge: /s/JEFFREY M. WINIK

FIRST JUSTICE

Date: December 11, 2007

FINDINGS OF FACT, RULINGS OF LAW AND ORDER OF JUDGMENT

Based upon all the credible testimony and evidence presented at trial, and the reasonable inferences drawn therefrom, the Court finds as follows:

The plaintiff, Felix Osagie, owns the four-unit dwelling at 41 Bicknell Street, in the Dorchester section of Boston. The plaintiff has owned the property since 2003. The defendant, Jean-Claude Mondelus, resides at 41 Bicknell Street, Apartment 2, as a tenant at will. He has occupied the premises since 2004. In September 2006, after the plaintiff commenced a summary process action against the defendant (06H84SP002726), the parties executed an Agreement for Judgment. Under the terms of the agreement (1) judgment entered for the plaintiff for possession and $200.00 in unpaid rent (after the rent was abated by $3,600.00), (2) the defendant agreed to pay $1,400.00 by October 8, 2006 ($1,200.00 rent plus $200.00 damages), (3) the defendant agreed to vacate the premises by October 31, 2006, and (4) the parties waived all claims and counterclaims arising from the tenancy. The agreement was later amended to extend the vacate date to January 31, 2007, with the defendant agreeing to pay $1,200.00 per month while he

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remained in possession of the premises. The defendant did not vacate the premises by the end of January 2007, however, the plaintiff did not move to enforce the agreement.

The plaintiff appears to have accepted the defendant’s rent without reservation for a number of months after January 2007. Accordingly, I rule that as of February 1, 2007, the defendant occupied the premises as a tenant at will. I find that for the period from February 2007 to the present, the monthly rent has been $1,200.00 due on the first day of each month. I credit the plaintiffs testimony and find that the defendant has not paid rent due from July through November 2007. He currently owes a total of $6,000.00 in unpaid rent. On October 3, 2007, the plaintiff served the defendant with a legally sufficient fourteen (14) day notice to quit for non-payment of rent.

I find that from the date of the 2006 amended Agreement for Judgment (November 6, 2006) until the defendant was again in arrears in his rent (July 2, 2007), the plaintiff neither knew nor should have known of any defective conditions in the defendant’s apartment. I find that at no time after November 2006 did the defendant ever complain to the plaintiff about defective conditions or otherwise request that the plaintiff make repairs in his apartment. I find that the defendant never sent or delivered to the plaintiff the letters (that listed alleged violations of the state sanitary code) purportedly dated September 11, 18 or 28, 2007 and October 11, 2007. I further find that the defendant has not proved that the conditions listed in those letters existed at the time he wrote the letters. The defendant contacted the City of Boston Inspectional Services Department (“ISD”) in October 2007, after he had received the notice to quit. An ISD inspector inspected the defendant’s apartment on October 17, 2007, and gave the defendant a copy of his worksheet that listed certain conditions that required repair. There is no evidence that ISD ever delivered a copy of the report to the plaintiff. In any event, the defendant’s letters and the ISD report are dated after the defendant was in arrears in his rent. Finally, the defendant changed the lock to his door without the plaintiffs permission. On a number of occasions in 2007, the defendant denied the plaintiffs workers access to the apartment to perform maintenance work. Accordingly, the defendant has not established his counterclaims for breach of implied warranty of habitability, violation of G.L. c. 93A or violation of G.L. c. 186, s. 14.

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Since the defendant was in arrears in his rent before the plaintiff knew or should have known of any defective conditions in the apartment, the defendant is not entitled to a defense to possession under G.L. c. 239, s. 8A.

The plaintiff did not engage in any acts of reprisal directed against the defendant. The plaintiff has established with clear and convincing evidence that the sole reason he terminated the defendant’s tenancy and commenced this action was because the defendant failed to pay rent over a number of months. Accordingly, the defendant has not established a defense to possession under G.L. c. 239, s. 2A and has not established a claim for damages under G.L. c. 186, s. 18.

There is no evidence that the plaintiff violated the last

month’s rent provisions set forth in G.L. c. 186, s. 15B.

Finally, the defendant did not present any evidence that the plaintiff interfered with the defendant’s privacy.

The plaintiff has established his case to recover possession and damages in the amount of $6,000.00.

ORDER FOR JUDGMENT,

Based upon all the credible testimony and evidence presented at trial in light of the governing law, it is ORDERED that:

1. Judgment enters for the plaintiff for possession and damages in the amount of $6,000.00.

2. Execution shall issue ten (10) days from the date that judgment enters.

3. Judgment enters for the plaintiff on the defendant’s counterclaims.

cc: Felix Osagie

Jean-Claude Mondelus

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End Of Decision

HOUSING COURT

BETTY BRADDY, Plaintiff VS. RHONDA COWARD, Defendant

Docket # CIVIL ACTION NO. 07H84CV000609

Parties: BETTY BRADDY, Plaintiff VS. RHONDA COWARD, Defendant

Judge: /s/JEFFREY M. WINIK

Date: December 11, 2007

FINDINGS OF FACT, RULINGS OF LAW AND ORDER FOR JUDGMENT

After possession became moot, this summary process action was transferred to the civil docket. The plaintiff is seeking to recover damages for unpaid rent. The defendant filed a written answer that included counterclaims arising from the tenancy.

Based upon all the credible testimony and evidence presented at trial, and the reasonable inferences drawn therefrom, the Court finds as follows:

The plaintiff, Betty Braddy, owns the four-unit dwelling at 24 Crawford Street, in the Dorchester section of Boston. The plaintiff occupies the first floor apartment. The defendant, Rhonda Coward, resided at the third floor apartment subject to the terms of a written lease from August 2006 through August 2007. The monthly rent was $1,200.00 due on the first day of each month. At the inception of the tenancy, the defendant gave the plaintiff a $1,200.00 security deposit and a $1,200.00 pre-paid last month’s rent deposit. The defendant did not pay rent for June, July or August 2007. After applying the security and last month’s rent deposits towards the unpaid rent, a balance of $1,200.00 remains unpaid.

There exists with respect to every residential tenancy an

implied warranty of habitability that the premises are fit for human habitation. A landlord is in breach of this warranty where there exist defects that may materially affect the health or safety of occupants. Boston Housing

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Authority v. Hemingway, 363 Mass. 184, 199 (1973). A breach of the implied warranty of habitability occurs from the point in time when a landlord had notice or should have known of a substantial defect in the apartment. The breach continues until the defect or violation is remedied. Berman & Sons, Inc. v. Jefferson, 379 Mass. 196 (1979) [landlord in breach of warranty from first notice of substantial Sanitary Code violations that recurred over time despite the landlord’s efforts to repair]. I find that from November 2006 through March 2007, the defendant had insufficient heat in her apartment. I find that the plaintiff knew or should have known of the heat problem since November 2006. Her failure to correct the problem constituted a material breach of the implied warranty of habitability.[1]

The measure of damages for breach of the implied warranty of habitability is the difference between the fair rental value of the premises free of defects and the fair rental value of the premises during the period that the defective conditions existed. Boston Housing Authority v. Hemingway, supra; Haddad v. Gonzalez, 410 Mass. 855, 872 (1991). The fair rental value of the premises free of defects is the contract rent of $1,200.00. As a result of the heating defect, I find that the fair rental value of the premises was diminished by twenty (20%) percent from November 2006 through March 2007. Accordingly, the defendant has proved damages in the amount of $1,200.00.[2]

ORDER FOR JUDGMENT

Based upon all the credible testimony and evidence presented at trial in light of the governing law, it is ORDERED that:

1. Judgment enters for the plaintiff on her rent claim for damages in the amount of $1,200.00 set off against the damages awarded to the defendant.

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[1] I find that the defendant did not prove that the premises had a carbon monoxide leak that rendered the premises uninhabitable for the first week of her tenancy. The other alleged defects were minor and did not diminish the value of the premises.

[2] $1,200.00 x .20 = $240.00 x 5 months = $1,200.00.

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2. Judgment enters for the defendant on the breach of implied warranty of habitability counterclaim for damages in the amount of $1,200.00 set off against the damages awarded to the plaintiff.

cc: Betty Braddy

Rhonda Coward

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End Of Decision

HOUSING COURT

SERGE LAMARRE VS. JOSETTE FRANCOIS

BOSTON DIVISION

Docket # SUMMARY PROCESS NO. 07H84SP005166

Parties: SERGE LAMARRE VS. JOSETTE FRANCOIS

Judge: /s/Jeffrey M. Winik

First Justice

Date: January 23, 2008

FINDINGS OF FACT, RULINGS OF LAW AND ORDER OF JUDGMENT

This is a summary process action in which the plaintiff is seeking to recover possession of the premises from the defendant for non-payment of rent. On the day of trial, the Court allowed the defendant to file a written answer that included affirmative defenses and counterclaims. The plaintiff agreed to proceed to trial that day.

Based upon all the credible testimony and evidence presented at trial, and the reasonable inferences drawn therefrom, the Court finds as follows:

The plaintiff, Serge Lamarre, owns the three-family dwelling at 84 Thetford Avenue, in the Dorchester section of Boston. The plaintiff has owned the property since 1981. The defendant, Josette Francois, resides at 84 Thetford Avenue, Apartment 3, as a tenant

at will. She has occupied the premises since June 2007. The monthly rent is $1,000.00 due on the first day of each month. The defendant agreed to pay for her own utilities, including electricity and gas (for cooking, heating and hot water). She opened accounts with the electric and gas companies. The defendant testified that her employer reduced her work hours in the fall of 2007 resulting in a significant drop in her income. According to the defendant, it is for this reason that she did not pay the rent due for November and December 2007, and January 2008. She currently owes a total of $3,000.00 in unpaid rent. On November 6, 2007, the

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plaintiff served the defendant with a legally sufficient fourteen (14) day notice to quit for non-payment of rent.

The defendant has failed to establish that at any time during her tenancy she had insufficient hot water or water pressure. One interior door in her apartment requires repair. This constitutes a minor defect that had no noticeable impact on the habitability of her apartment.

There is no evidence that the defendant gave the plaintiff a security deposit. Accordingly, the defendant has not established a claim under G.L. c. 186, s. 15B.

The parties agree that the defendant never signed a lease or other writing pertaining to her agreement to pay for her own utilities sufficient to meet the requirements of Article II of the State Sanitary Code, 105 CMR s.410.354(A)(1). That provision states that a landlord must provide and pay for gas and electricity used in each dwelling unit unless the tenant has agreed to do so in writing. See Young v. Patukonis, 24 Mass. App. Ct. 907 (1987). Landlords and tenants often ignore this provision of the CMR. It is a common practice for tenants and landlords to enter into oral agreements whereby the tenant agrees to pay for her own utilities. The landlord does this at his peril. Where a landlord is engaged in trade or commerce, his violation of s.410.354(A)(1) constitutes a violation of G.L. c. 93A, s. 9 (see 940 CMR s.3.17(6)(g)). In the absence of evidence of damages[1], the tenant would be entitled to nominal damages of $25.00.

The plaintiff owns 84 Thetford Street as an investment property. Accordingly, the plaintiff is engaged in trade or commerce within the meaning of G.L. c. 93A. I rule that by requiring the defendant to pay for her own utilities without a written agreement signed by the defendant, the plaintiff violated G.L. c. 93A. Young v. Patukonis, supra. At no time prior to the date of trial did the defendant ever complain to the plaintiff about the agreement pertaining

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[1] By way of example, evidence of damage could include proof that the landlord’s failure to maintain the premises in good repair increased the cost that the tenant had to pay for utilities, or proof that the oral utility arrangement had a negative financial impact on the tenant’s use and enjoyment of the premises (such as proof that the rent and cost of utilities, together, were more than the fair rental value of the premises), or proof that the utility

metering was improper. The law provides that a tenant who orally agrees to pay for her own utilities can change her mind. “A landlord may not compel a tenant to comply with such an oral agreement. At any time during the course of such a tenancy, the tenant may object to having to provide his own heat and hot water, and he may begin to deduct from the rent each month thereafter, the amount paid for heat and hot water. The landlord, of course, may respond by raising the rent.” Poncz v. Lofton, 34 Mass. App. Ct. 909, 911 fn. 3 (1993).

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to utility payments or demand that the plaintiff assume responsibility for the payment of the utility bills. Accordingly, there is no evidence that the plaintiff failed to assume responsibility for the defendant’s utilities within a reasonable period from the date on which he had actual notice. I find that the plaintiff maintained the premises (including the heat and hot water systems) in good repair. The defendant did not present any evidence that her rent and cost of utilities, together, were more than the fair rental value of the premises. The defendant did not present any evidence that her utility bills were excessive due to defects in the apartment. The defendant did not present any evidence that the defendant’s utility services were suspended or terminated because of her inability to pay for them.

Because the defendant did not prove any actual or consequential damages resulting from the oral utility agreement, I shall award her nominal statutory damages pursuant to G.L. c. 93A of $25.00.[2]

Since the G.L. c. 93A violation existed prior to the date that the defendant was first in arrears in her rent, she has established an affirmative defense to possession pursuant to G.L. c. 239, s. 8A. The amount due under s.8A is $2,975.00.

ORDER FOR JUDGMENT

Based upon all the credible testimony and evidence presented at trial in light of the governing law, it is ORDERED that:

1. Judgment enters for the defendant on her G.L. c. 93A counterclaim in the amount of $25.00.

2. Judgment enters for the defendant for possession pursuant to the fifth paragraph of G.L. c. 239, s.8A, on the condition that within seven (7) days of their receipt of this ORDER, the defendants deposit with the Clerk of this Court the sum of $2,975.00. The clerk is directed to release this sum to the plaintiff. If the deposit is not made, judgment shall automatically enter in favor of the plaintiff for possession and damages (after setoff) in the amount of $2,975.00, plus costs, on

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[2] Based upon these facts, I rule that the plaintiff did not breach the implied warranty of habitability and did not violate the statutory covenant of quiet enjoyment, G.L. c. 186, s. 14.

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the next business day following the expiration of the tenth (10th) day of the date of this ORDER.

3. Judgment enters for the plaintiff on the defendant’s breach of implied warranty, quiet enjoyment (G.L. c. 186, s. 14) and security deposit (G.L. c. 186, s. 15B) counterclaims.

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End Of Decision

HOUSING COURT

FELIX OSAGIE, Plaintiff VS. JEAN-CLAUDE MONDELUS, Defendant

Docket # SUMMARY PROCESS NO.07H84SP004251

Parties: FELIX OSAGIE, Plaintiff VS. JEAN-CLAUDE MONDELUS, Defendant

Judge: /s/ JEFFREY M. WINIK

FIRST JUSTICE

Date: January 14, 2008

AMENDED FINDINGS OF FACT, RULINGS OF LAW AND ORDER OF JUDGMENT

This is a summary process action in which the plaintiff is seeking to recover possession of the premises from the defendant for non-payment of rent. The defendant filed a written answer that included affirmative defenses and counterclaims. These amended findings, rulings and judgment are entered, nunc pro tunc, to December 11, 2007.

Based upon all the credible testimony and evidence presented at trial, and the reasonable inferences drawn therefrom, the Court finds as follows:

rent plus $200.00 damages), (3) the defendant agreed to vacate the premises by October 31, 2006, and (4) the parties waived all claims and counterclaims arising from the tenancy. The agreement was later amended to extend the vacate

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date to January 31, 2007, with the defendant agreeing to pa $1,200.00 per month while he remained in possession of the premises. The defendant did not vacate the premises by the end of January 2007, however, the plaintiff did not move to enforce the agreement.

The plaintiff appears to have accepted the defendant’s rent without reservation for a number of months after January 2007. Accordingly, I rule that as of February 1, 2007, the defendant occupied the premises as a tenant at will. I find that for the period from February 2007 to the present, the monthly rent has been $1,000.00 due on the first day of each month (the amount the plaintiff acknowledged as rent in 2007 rent receipts he signed). The defendant paid the plaintiff $1,000.00 in August 2007, and $500.00 in September 2007. I find that the defendant did not pay any rent in July, October through November 2007. He owes a total of $4,500.00 in unpaid rent through November 2007. On October 3, 2007, the plaintiff served the defendant with a legally sufficient fourteen (14) day notice to quit for non-payment of rent.

I find that from the date of the 2006 amended Agreement for Judgment (November 6, 2006) until the defendant was again in arrears in his rent (July 2, 2007), the plaintiff neither knew nor should have known of any defective conditions in the defendant’s apartment. I find that at no time after November 2006 did the defendant ever complain to the plaintiff about defective conditions or otherwise request that the plaintiff make repairs in his apartment. I find that the defendant never sent or delivered to the plaintiff the letters (that listed alleged violations of the state sanitary code) purportedly dated September 11, 18 or 28, 2007 and October 11, 2007. I further find that the defendant has not proved that the conditions listed in those letters existed at the time he wrote the letters. The defendant contacted the City of Boston Inspectional Services Department (“ISD”) in October 2007, after he had received the notice to quit. An ISD inspector inspected the defendant’s apartment on October 17, 2007, and gave the defendant a copy of his worksheet that listed certain conditions that required repair. There is no evidence that ISD ever delivered a copy of the report to the plaintiff. In any event, the defendant’s letters and the ISD report are dated after the defendant was in arrears in his rent. Finally, the defendant changed the lock to his door without the plaintiff’s permission. On a number of occasions in 2007, the defendant denied the plaintiff’s workers access to the apartment to perform maintenance work. Accordingly, the defendant has not established his counterclaims for breach of implied warranty of habitability, violation of G.L. c. 93A or violation of G.L. c. 186, s. 14.

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Since the defendant was in arrears in his rent before the

plaintiff knew or should have known of any defective conditions in the apartment, the defendant is not entitled to a defense to possession under G.L. c. 239, s. 8A.

There is no evidence that the plaintiff violated the last month’s rent provisions set forth in G.L. c. 186, s. 15B.

Finally, the defendant did not present any evidence that the plaintiff interfered with the defendant’s privacy.

The plaintiff has established his case to recover possession and damages in the amount of $4,500.00.

AMENDED ORDER FOR JUDGMENT

Based upon all the credible testimony and evidence presented at trial in light of the governing law, it is ORDERED that:

1. Judgment enters for the plaintiff for possession and damages in the amount of $4,500.00, nunc pro tunc to December 11, 2007

2. Execution shall issue ten (10) days from the date that judgment enters.

3. Judgment enters for the plaintiff on the defendant’s counterclaims.

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End Of Decision

HOUSING COURT

JUSTIN B. WILLIAMS, Plaintiff VS. 1412 COMMONWEALTH AVENUE CONDOMINIUM TRUST, ALPHA MANAGEMENT CORP., and ANWAR FAISAL, Defendants

Docket # CIVIL ACTION NO. 97-H84-CV-001286

Parties: JUSTIN B. WILLIAMS, Plaintiff VS. 1412 COMMONWEALTH AVENUE CONDOMINIUM TRUST, ALPHA MANAGEMENT CORP., and ANWAR FAISAL, Defendants

Judge: /s/JEFFREY M. WINIK

FIRST JUSTICE

Date: February 08, 2008

ORDER

After hearing, it is ordered that:

1. Plaintiffs Motion to Amend Complaint to Add Chapter 93A Claims Against Defendants is ALLOWED. The plaintiff shall file and serve the amended complaint within ten days from the date of this order. The defendants shall have thirty days from the date of this order to conduct additional discovery limited to facts pertaining to the Chapter 93A claim that were not addressed in discovery previously served. The plaintiff shall not be permitted to conduct any additional discovery.

2. Plaintiffs Motion for Approval of Real Estate Attachment is DENIED. On June 23, 1999, the Court granted the plaintiffs request for an attachment in the amount of $100,000.00. After the attachment was allowed, this case was dormant for the next seven years (2000 to 2007) without explanation. It is now almost nine years since the attachment order issued. The plaintiff has not made a sufficient showing that an additional attachment is necessary after so many years have passed.

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cc: Kurt M. Pressman, Esq.

Sarah Like Rhatigan, Esq.

Owen P. McGowan, Esq.

Mark Gordon Zuroff, Esq.

Daniel Briansky, Esq.

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End Of Decision

HOUSING COURT

DURAN ABSHIR and FADUMO ABDI, individually and as parents of their minor children HODMAN ABSHIR and SAREDA ABSHIR, Plaintiffs VS. GABRIEL RIVERA and ALBA PEREZ a/k/a ALBA CORONA, Defendants

Docket # CIVIL ACTION NO. 06H84CV000020

Parties: DURAN ABSHIR and FADUMO ABDI, individually and as parents of their minor children HODMAN ABSHIR and SAREDA ABSHIR, Plaintiffs VS. GABRIEL RIVERA and ALBA PEREZ a/k/a ALBA CORONA, Defendants

Judge: /s/JEFFREY M. WINIK

FIRST JUSTICE

Date: February 4, 2008

FINDINGS OF FACT, RULINGS OF LAW AND ORDER FOR JUDGMENT

This civil action involves a dispute arising from a residential tenancy between the plaintiffs (tenants) and the defendants (owner and property manager). The plaintiffs have asserted in their amended complaint claims for breach of the implied warranty of habitability (Count I), interference with quiet enjoyment (Count II), negligence (Count III)[1], intentional infliction of emotional distress (Count IV) and unfair trade practices (Count V). The defendants filed an answer in which they denied the allegations set forth in the plaintiffs’ amended complaint.

Based upon all the credible testimony and evidence presented at trial, and the reasonable inferences drawn therefrom, the Court finds and rules as follows:

Findings of Fact

The residential property at 360 Meridian Street, in the East Boston section of Boston, contains nine condominium units. At all times relevant to the claims in this action, defendant

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[1] The plaintiffs have asserted the negligence claim individually and as parents/next friends of their two minor children.

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Gabriel Rivera has owned and managed the condominium units.[2] Defendant Alba C. Perez-Corona is Rivera’s wife. During this same period, Perez-Corona acted as Rivera’s agent in the management of the condominium units and in her dealings with the residential tenants. Rivera renovated the condominium units in 1987. He installed new plumbing, electrical service, floors, ceilings, walls, windows and doors.

Apartment 1 has four rooms and is one of three apartments located in the basement of the building. The drain/waste pipes for the basement units are below the building’s main waste/drain pipe. For this reason, there is a jet pump located in the common area of the basement. The pump moves wastewater from the basement units up to the main drainpipe. Rivera maintains the jet pump in a small, enclosed shed that abuts one of the walls to Apartment 1.

Plaintiffs Duran Abshir and Fadumo Abdi are married with two minor children, Hodman Abshir and Sareda Abshir. From November 2001 through July 2004, they resided at 360 Meridian Street, Apartment 1 (hereinafter “Apartment 1” or “premises”) subject to a written tenancy at will agreement. Rivera (as landlord) and Duran Abshir (as tenant) signed the written agreement. The agreed upon monthly rent was $675.00 due on the first day of each month. The plaintiffs

gave Rivera a last month rent deposit in the amount of $675.00. The rent was increased to $725.00 per month effective January 2003.

The parties dispute the amount of rent that remained unpaid as of the date the plaintiffs vacated the premises. Rivera testified that the plaintiffs did not pay rent for August, September and October 2003, and February, June and July 2004. He did not present any rent ledgers or business records. He testified that he lost his records in a flood at his home. Abshir testified that he paid Rivera all rent due as of the date he vacated the premises. Abshir placed in evidence canceled rent checks for some but no all the disputed months. I find that as of the date on which they vacated the premises, the plaintiffs had not paid the rent due for the month of August and September 2003 and May, June and July 2004. The total of unpaid rent was $3,625.00. I find that they paid the rent due in full for every other month that they occupied the premises. After they vacated the premises, the plaintiffs paid Rivera $500.00 in August 2004 and $500.00 in

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[2] Each condominium is held in a separate trust. Rivera is the sole trustee of each trust. Apartment 1 is held by the 360 Meridian Street Realty Trust.

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September 2004. After applying these payments and the pre-paid last month rent deposit to the unpaid rent balance, I find that the plaintiffs owe $1,950.00 in unpaid rent through July 2004.

Sewage Backups and Odor. On a monthly basis beginning in January 2002 and continuing throughout the tenancy (sometimes twice a month, sometimes every other month), sewage would backup and clog the plaintiffs’ toilet and bathtub. The plaintiffs called Rivera each time. Rivera would then call a plumber or drain cleaning service to unclog the drains. Typically, the problem was that material would clog the jet pump. As a result, the pump could not push the sewage from the basement apartment to the main drain on the first floor. Once the jet pump was cleared, the drains in the plaintiffs’ apartment would then work for a while, but the problem would recur. I find that the sewage backups were a chronic problem resulting from the fact that the jet pump was unable to move sewage from the basement pipes up to the main drain pipe.[3]

As a result of the chronic sewage backups (and the proximity of the jet pump), there was a persistent smell of sewage in the apartment. Sometimes the odor was stronger than other times. When the plaintiffs opened the apartment windows the odor would abate. However, they could not keep the windows open continuously in the cold weather months. The plaintiffs complained to Rivera about the odor. Rivera was unable to do anything to prevent the odor from entering the apartment.

In 2003, the plaintiffs asked Rivera if they could move to another apartment on one of the upper floors of the building. Rivera told them that he had only one vacant apartment on the top floor that was $1,200.00 per month. Rivera said he was holding that apartment for a tenant who was coming from Cuba. The plaintiffs remained in their apartment.

The chronic sewage backups and persistent odors were defective conditions that diminished the value of the premises and interfered with the plaintiffs’ quiet use and enjoyment of the premises.

January 2003 Flood. On the evening of January 23, 2003, a frozen pipe in the building wall cracked. Water flowed from the cracked pipe into the plaintiffs’ apartment causing a closet

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[3] Rivera testified that each time he inspected the drain in response to a complaint from the plaintiffs, he found tampons, sanitary towels and plastic bags. He said he told the plaintiffs not to dispose of these items in the toilet. The plaintiffs denied that they placed these items in their toilet. I credit the plaintiffs’ testimony. There is insufficient evidence to support Rivera’s claim that the drain clogged because the defendants placed sanitary napkins and other materials in the toilet.

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ceiling to collapse. Fire fighters (who came in response to a call for assistance) shut off the main water valve to the building. Rivera responded to the plaintiffs’ call that same evening. He offered to put the plaintiffs up in a hotel. They declined the offer. Rivera had a plumber fix the pipe and restore water service. The water was off for two or three days. Rivera fixed the closet ceiling. The lack of running water diminished the value of the premises and interfered with the plaintiffs’ quiet use and enjoyment of the premises.

January 2004 Flood. During a severe cold spell, a second pipe cracked in January 2004. The pipe was located in the hallway of Apartment 3, causing serious damage to that unit.[5] Water from the cracked pipe leaked through the plaintiffs’ living room and kitchen ceilings. Rivera responded to a call from the first floor tenant. He called a plumber who fixed the leak that same day. Rivera had one of his workers place plastic bags over the holes in the plaintiffs’ ceiling. The ceiling remained in that condition until March 2004 at which time Rivera removed the plastic bags and placed plywood over the ceiling openings. One month later, he finally completed the ceiling repairs by installing sheetrock. The defective ceiling diminished the value of the premises. The existence of the defective ceilings and Rivera’s failure to take prompt and appropriate action to make the necessary repairs, interfered with the plaintiffs’ quiet use and enjoyment of the premises.[6]

Mold/Mildew. The plaintiffs’ basement apartment had a musty smell. At various times throughout their tenancy, the plaintiffs observed mold and mildew on portions of the walls and wood molding. Poor housekeeping did not cause the presence of mold or mildew. Rivera admits that the plaintiffs maintained a clean home. The plaintiffs attempted to remove the mold and mildew to the best of their abilities. The presence of mold and mildew diminished the value of the premises and interfered with the plaintiffs’ quiet use and enjoyment of the premises.

The plaintiffs claim that the presence of mold and mildew in their apartment exacerbated existing illnesses of Fadumo Abdi and her children or caused them to suffer other physical ailments

including colds and bronchial illnesses. Fadumo Abdi was diagnosed with perennial allergic rhinitis (and possible dust related allergies). Hodman Abshir was diagnosed with allergic rhinitis (showing an adverse reaction to the

following molds:

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[5] Apartment 3 remained empty for the remainder of that winter.

[6] Rivera testified that he made temporary repairs until he received payment from his insurance company. Rivera did not argue or prove that he did not otherwise have the financial resources to pay for the needed repairs.

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cladosporium/hormodendrum and epicoccum).[7] Sareda Abshir was diagnosed with asthma. She was not found to have any allergies.

The plaintiffs claim that Apartment 1 suffered from “sick house syndrome.” However, there is insufficient evidence to establish a connection between the plaintiffs’ medical conditions and mold or mildew in the apartment. There is no diagnosis or expert medical opinion in the medical records that mold or mildew caused or exacerbated the medical conditions. For example, Dr. Hamilos, in his report dated December 22, 2003, states only with respect to Fadumo Abdi that “[u]nfortunately, the apartment sounds like it is far from ideal because of the presence of moisture and molds.” With respect to Sareda Abshir, Dr. Silva, in a report dated December 17, 2003, states only that the patient has “no known allergies” and that the parents “has had house inspection and thinks may be environmental. Doubt asthma given complete lack of reproducible chronic cough or wheezing over the last 2 years.” With respect to Hodman Abshir, Dr. Silva, in a report dated December 17, 2003, states that the patient “has possible allergies” and again only that the parent “has had house inspection and thinks may be environmental. Doubts asthma.” Although an inspector from the City of Boston Inspectional Services Department (“ISD”) visually identified mildew in the apartment (March 3, 2004 inspection report), the apartment was never tested for the presence of any specific types of mold. The plaintiffs testified that the health of Fadumo Abdi and her children improved when they moved to a new apartment in August 2004. The evidence suggests otherwise, at least with respect to Fadumo Abdi. In his report dated April 8, 2005, nine months after the plaintiffs vacated Apartment 1, Dr. Hamilos reports “Faduma is still having perennial allergic rhinitis symptoms.” However, even if the children had fewer respiratory symptoms after they left Apartment 1, that does not constitute evidence sufficient to establish that mold or mildew caused or substantially contributed to their medical conditions while they lived in Apartment 1.

No Emotional Distress. The defective conditions in Apartment 1 caused the plaintiffs significant discomfort and interfered with their quiet use and enjoyment of the premises. However, there is no evidence that the plaintiffs (or their children) suffered serious emotional distress as a result of the defendants’ failure to correct those conditions in a timely manner. There is no evidence

that a doctor, psychologist, therapist or social worker diagnosed or treated

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[7] Hodman’s test screen did not register an adverse reaction to the following molds: alternaria, aspergillus, helminthosporium and penicillium.

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any family member for emotional distress. There is no other evidence sufficient to establish that any family member suffered depression, anxiety, loss of sleep, loss of appetite or any other manifestation of emotional harm resulting from the defendants’ failure to correct those conditions in a timely manner.

No Personal Injury or Property Damage. There is no evidence that the plaintiffs suffered any personal injury or property damage as a result of the defendants’ failure to maintain the premises in good repair.

Remaining Conditions. The plaintiffs testified that with the exception of the mildew violations, the conditions listed on the March 3, 2004 ISD report (Exhibit 6) were minor. Rivera neither knew nor should have known of those conditions until after he received the ISD report. However, he did not correct the conditions at any time while the plaintiffs remained in possession of Apartment 1. I find that those conditions, though minor, collectively diminished the value of the premises.

Engaged in Trade or Commerce. The parties stipulated and the Court finds that the defendants were engaged in trade or commerce with respect to the ownership and management of residential rental property.

Rulings of Law

1. Breach of Implied Warranty of Habitability (Count 1). There exists with respect to every residential tenancy an implied warranty of habitability that the premises are fit for human habitation. A landlord is in breach of this warranty where there exist defects that may materially affect the health or safety of occupants. Boston Housing Authority v. Hemingway, 363 Mass. 184, 199 (1973). A tenant is not entitled to receive damages for minor defects. Not every defect gives rise to a diminution in rental value. Isolated violations do not necessarily constitute a breach of the warranty. McKenna v. Begin, 5 Mass. App. Ct. 304 (1977). A breach of the implied warranty of habitability occurs from the point in time when a landlord had notice or should have known of a substantial defect or substantial Sanitary Code violation in the apartment. The breach continues until the defect or violation is remedied. Berman & Sons, Inc. v. Jefferson, 379 Mass. 196 (1979) [landlord in breach of warranty from first notice of substantial Sanitary Code violations that recurred over a period of time despite the landlord’s efforts to repair]. The measure of damages for breach of the implied warranty of habitability is the difference between the fair rental value of the premises free of defects and the fair rental

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value of the premises during the period that the defective conditions existed. Boston Housing Authority v. Hemingway, supra; Haddad v Gonzalez, 410 Mass. 855, 872 (1991).

The existence of the chronic sewage/odor problem, the defects resulting from the two flooding incidents (January 2003 and January 2004) and collectively, the minor defects set forth in the March 3, 2004 ISD report, constitute a material breach of the implied warranty of habitability.

I rule that the fair rental value of the premises free of defects was $675.00 from November 2001 through December 2002, and $725.00 from January 2003 to August 2004.

I rule that the fair rental value of the premises given the defective conditions that existed was diminished as follows:

a. $1,620.00: Twenty (20%) percent from January through December 2002 (sewage, odor, mold, mildew);

b. $290.00: Forty (40%) percent for January 2003 (sewage, odor, mold, mildew, flood, water interruption);

c. $1,595.00: Twenty (20%) percent from February through December 2003 (sewage, odor, mold, mildew);

d. $870.00: Forty (40%) percent from January through March 2004 (sewage, odor, mold, mildew, flood, defective ceiling); and

e. $725.00: Twenty-five (25%) percent from April through July 2004 (sewage, odor, mold, mildew, collective minor defects).

Accordingly, the plaintiffs have established damages for breach of lease and for breach of the implied warranty of habitability in the amount of $5,100.00.

2. Interference With Quiet Enjoyment (Count II). The quiet enjoyment statute, G.L. c. 186, s. 14, provides that any landlord who “directly or indirectly interferes with the quiet enjoyment of any residential premises” shall be liable for “actual or consequential damages or three month’s rent, whichever is greater . . .” While the statute does not require that the landlord’s conduct be intentional, Simon v. Solomon, 385 Mass. 91 (1982), it does require proof

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that the landlord’s conduct caused a serious interference with the tenant’s quiet enjoyment of the premises. A serious interference is an act or omission that impairs the character and value of the leased premises. Doe v. New Bedford Housing Authority, 417 Mass. 273, 284-285 (1994); Lowery v. Robinson, 13 Mass. App. Ct. 982 (1982). A landlord violates G.L. c. 186, s.14 where he had notice, or reason to know of a serious condition adversely affecting the tenant’s use of the apartment, and failed to take appropriate

corrective measures. Al Ziab v. Mourgis, 424 Mass. 847, 850-851 (1997); Cruz Management Co., Inc. v. Thomas, 417 Mass. 782 (1994).

I rule that the defendants’ failure to take appropriate corrective measures to correct the sewage, odor, mold and mildew problems, the flooding incidents (and resulting damage to the premises) in January 2003 (including the loss of water usage for a number of days) and from January to March 2004 (including delay in repairing the ceiling), and the collective defects that existed from March through July 2004, directly or indirectly interfered with the plaintiffs’ quiet use and enjoyment of the premises in violation of G.L. c. 186, s. 14.

The plaintiffs did not present evidence sufficient to establish that they suffered any actual or consequential damages arising from this violation other than diminution of the fair rental value of the premises (as calculated for breach of the implied warranty of habitability. Since the actual damages resulting from this G.L. c. 186, s. 14 violation exceeds three month’s rent, the plaintiffs are entitled to actual damages of $5,100.00 plus costs and a reasonable attorney’s fee.

3. Negligence (Count III). The defendants breached a duty of care owed to the plaintiffs to maintain the premises in good repair. Specifically, they failed to exercise reasonable care to take appropriate corrective actions to correct the defective conditions that existed at the premises (including the presence of mold and mildew) within a reasonable time after they first knew or should have known of the defects. However, I rule that the plaintiffs have not proved that they suffered any personal injury or physical harm as a result of the defendants’ breach of their duty of care. They have not proved that the presence of mold or mildew caused or significantly contributed to the plaintiffs’ medical conditions (including congestion, cold-like symptoms, asthma or allergies). The plaintiffs did not suffer any property damage arising from the defendants’ failure to exercise due care to correct defective conditions that existed at the apartment. They cannot recover in negligence for economic loss measured by the diminished fair rental value of the premises. See, Bay State Spray & Provincetown Steamship, Inc. v. Caterpillar Tractor Co., 404 Mass. 103, 107 (1989) (“[i]n this State when economic loss is the

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only damage claimed, recovery is not allowed in . . . negligence.”); Garweth Corp. v. Boston Edison Co., 415 Mass. 303, 305 (1993).

Accordingly, the plaintiffs have not established claims sounding in negligence.

in a civilized community . . .”; (3) that the defendants’ actions were the cause of the plaintiffs’ distress; and (4) that either plaintiffs’ distress “was severe and of a nature that no reasonable man could be expected to endure it.” Agis v. Howard Johnson, 371 Mass. 140, 144-145 (1976).

Accordingly, the plaintiffs have not established their claim for intentional infliction of emotional distress.

5. Chapter 93A Claim (Count V). The plaintiffs allege that the defendants’ failure to maintain the premises in good repair constituted an unfair and deceptive acts or practices in violation of G.L. c. 93A.

“The existence of unfair acts and practices must be determined from the circumstances of each case.” Commonwealth v. DeCotis, 366 Mass. 234, 242 (1974).

The Legislature delegated to the Attorney General the power to promulgate regulations that identify, with specificity, acts or practices that are to be considered unfair or deceptive under G.L. c. 93A. Such regulations have the force of law. Purity Supreme, Inc. v. Attorney General, 380 Mass 762 (1980). Under the provisions of the Chapter 93A landlord-tenant regulations, 940 CMR s.3.17 (1) (i), “it shall be an unfair and deceptive practice for an owner to . . . fail to comply with the State Sanitary Code or any other law applicable to the conditions of a dwelling unit within a reasonable time after notice of a violation of such code or law from the tenant or agency.” A landlord violates G.L. c. 93A where a breach of the implied warranty of habitability is found by the court to be material and substantial. Cruz Management Co. Inc., v. Thomas, 417 Mass. 782 (1994); Dorgan v. Loukas, 19 Mass.App.Ct. 959 (1985).

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Chapter 93A, s. 9 (3) provides that damages “. . . shall be awarded in the amount of actual damages or twenty-five dollars, whichever is greater; or up to three but not less than two times such amount if the Court finds that use or employment of the act or practice was a willful or knowing violation of said section two or that the refusal to grant relief upon demand was made in bad faith with knowledge or reason to know that the act or practice complained of violated section 2.” The prevailing party is entitled to reasonable attorney’s fees and costs. The measure of damages under G.L. c. 93A is calculated by determining the rental value of the unit as warranted, minus the value of the unit in its defective condition, plus any reasonable expenses incurred by the tenant as a result of the defective condition. That amount is then doubled or trebled if the Court finds that either (1) the landlord failed to make a reasonable offer of settlement in response to a written demand letter, or (2) the landlord’s conduct was willful or intentional. Where the defendant has withheld rent, the total amount of withheld rent is then deducted from this amount. The resulting figure is the final award of damages. Wolfberg v. Hunter, 385 Mass. 390 (1982).

The defendants were at all times relevant to this action engaged in trade or commerce within the meaning of G.L. c. 93A with respect to the operation and management of rental housing in the City of Boston.

The plaintiffs’ demand letter dated December 29, 2005, and delivered to the defendants on or about December 30, 2005,

constituted a legally sufficient demand for relief pursuant to G.L. c. 93A, s. 9. I rule that the defendants’ written response to the demand letter was not made in bad faith with knowledge or reason to know that the acts or practices complained of were unfair or deceptive in violation of G.L. c. 93A, s. 2.

I rule that the defendants failed within a reasonable time after notice from the plaintiffs to take prompt, appropriate and effective action to corrective defective conditions necessary to bring the premises into compliance with the State Sanitary Code. Further, I rule that the defendants’ breach of the implied warranty of habitability during the period from January 2002 through July 2004 was material and substantial. For these reasons, I rule that the defendants violated Chapter 93A.

The defendants had actual knowledge of the sewage/odor problems as of January 2002. The problem was chronic and continued throughout the plaintiffs’ tenancy. They failed. I rule that the defendants’ failure to take appropriate and effective measures to resolve the serious

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sewer/odor problems during the period that the plaintiffs occupied Apartment 1 constituted willful or intentional conduct within the meaning of Chapter 93A.[8]

The Chapter 93A damages are calculated as follows: $5,100.00 (diminished value of leasehold as calculated for breach of the implied warranty of habitability) less $1,950.00 (unpaid rent) is $3,150.00.[9] Since the defendants’ conduct was willful or intentional, I shall double the actual damages to $6,300.00.

6. Cumulative Damages. The plaintiffs are not entitled to recover cumulative damages arising from the same facts under every theory of recovery, but they entitled to recover damages under the theory that results in the largest award of damages. Wolfberg v. Hunter, 385 Mass. 390

(1982).

The plaintiffs have prevailed on their conditions-based claims under the breach of the implied warranty, interference with quiet enjoyment and unfair trade practice counts. I shall award damages under Chapter 93A since that count provides the plaintiffs with the largest monetary recovery.

INTERIM ORDER

Based upon all the credible testimony and evidence presented at trial in light of the governing law, it is ORDERED that:

1. Judgment enter for plaintiffs on Count I (breach of implied warranty of habitability), Count II (breach of covenant of quiet enjoyment) and Count V (violation of consumer protection act) of their amended complaint, with damages awarded under G.L. c. 93A in the amount of $6,300.00 plus costs and a reasonable attorney’s fee.

2. Judgment enters for the defendants on Count III (negligence) and Count IV (intentional infliction of emotional distress) of the plaintiffs’ amended complaint.

3. Within twenty (20) days after the issuance of this Interim Order, the defendant/plaintiff-in-counterclaim

may file with this Court a motion for counsel

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[8] Under the provisions of the Chapter 93A landlord-tenant regulations, 940 CMR s.3.17 (6) (0, “it shall be an unfair and deceptive practice for an owner to . . . violate willfully any provisions of G.L. c. 186, s.14.” Since I have found that the defendants’ conduct was willful or intentional, the defendants’ violation of G.L. c. 186, s. 14 constituted an unfair or deceptive act or practice.

[9] The defendants are not entitled to a judgment for unpaid rent since that amount was setoff against and therefore reduced the damages awarded on the plaintiffs’ Chapter 93A claim.

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fees, costs and expenses in accordance with the procedure prescribed in Yorke Mgmt v. Castro, 406 Mass. 17, 20 (1989).

4. Final Judgment shall enter on all claims after statutory attorney’s fees, costs and expenses are assessed.

cc: Burton A. Nadler, Esq.

Eliza J. Minsch, Esq.

Gabriel Rivera

Alba C. Corona-Perez

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End Of Decision

HOUSING COURT

REGINALD BYRD VS.CODMAN SQUARE, LP,

CITY OF BOSTON DIVISION

Docket # CIVIL ACTION NO.06H84CV000782

Parties: REGINALD BYRD VS.CODMAN SQUARE, LP,

Judge: /s/ JEFFREY M. WINIK, FIRST JUSTICE

Date: March 26, 2008

MEMORANDUM OF DECISION ON THE DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

Introduction

The plaintiff (a tenant) commenced this civil action seeking monetary damages from the defendant (a property owner) for injuries he sustained from a rat bite. The plaintiffs complaint includes personal injury-based claims for (1) breach of implied warranty of habitability, (2) violation of G.L. c. 186, s. 14 (interference with quiet enjoyment), (3) negligence, and (4) violation of G.L. c. 93A (unfair trade practice). The defendant filed an answer in which it denied the allegations.

This matter is before the Court on the defendant’s Motion for Summary Judgment. The defendant contends that the plaintiff is barred from recovering any monetary damages from the defendant arising from the rat bite injury. The defendant argues that it is protected from suit under the terms of a September 2006 general release executed by the plaintiff in favor of Winn Management (the property management company retained by the defendant). The defendant filed a memorandum of law in support of its motion together with a statement of undisputed material facts, interrogatory answers, and documentary exhibits. The plaintiff filed a written opposition to the defendant’s motion supported by affidavits, interrogatory answers and documentary exhibits.

For the reasons stated in this memorandum, the defendant’s Motion for Summary Judgment is DENIED.

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Facts

The following facts do not appear to be in dispute. The defendant, Codman Square, LP (“Codman Square”), owns a number of

residential apartment buildings that together comprise the 80-unit state subsidized development known as BHP Codman Square Apartments (“Codman Square Apartments”).[1] The development buildings are located in the Dorchester section of Boston. In 2000, Codman Square executed a Management Agreement with Winn Management Company, LLC (“Winn Management”). Under the terms of the agreement Codman Square appointed Winn Management as the exclusive agent to manage Codman Square Apartments. While under the terms of the management contract Winn Management is responsible for the everyday maintenance of Codman Square Apartments, Codman Square retains control and authority as the owner of the development. For example, the prior approval of Codman Square is required for any maintenance or repair expenditure that exceeds $1,500.00. Further, the management contract provides that Winn Management shall not take any maintenance or repair related action “so long as the owner is contesting, or has affirmed its intention to contest” any governmental orders or requirements affecting Codman Square Apartments.

On September 30, 2005, Winn Management, acting as agent for Codman Square, rented 3 Gaylord Street, Apartment 1 (“apartment”), to Beacon Hill Multicultural Psychological Associates, Inc. (“BHMPA”). The Gaylord Street building is part of Codman Square Apartments. The occupancy agreement between Winn Management and BHMPA identifies Codman Square as the owner and BHMPA as the tenant. That same day, BHMPA, acting under the terms of a Housing Assistance Payment contract with Metropolitan Boston Housing Partnership (“MBHP”), rented the apartment to the plaintiff, Reginald Byrd (“Byrd”). The occupancy agreement between BHMPA and Byrd identifies BHMPA as the “leaseholder” and Byrd as the tenant. This second occupancy agreement does not name or identify Codman Square as the owner or landlord. [2] The second occupancy agreement states that all notices to the “Owner” are to be sent to Winn Management.

For purposes of ruling on this summary judgment motion, I shall assume, without deciding, that on November 14, 2005, a rat bit Byrd on his left big toe while he was in the

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[1] The development receives assistance under the State Housing Assistance for Rental Production (SHARP) program.

[2] It appears that Byrd also signed the first lease between Codman Square and BHMPA.

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apartment. Byrd notified Winn Management of his injury and complained about an ongoing rodent problem.

On July 27, 2006, Byrd sent Winn Management a letter demanding a monetary settlement for damages he suffered as a result of the rat bite. Winn Management and Byrd agreed to settle the claim. For this reason, Byrd never commenced a civil action against Winn Management. On September 7, 2006, in exchange for the payment of $14,250.00 from Winn Management “insurer,” Byrd executed a “Release of All Claims” arising from the November 14, 2005 rat bite injury.

The release specifically discharges Wynn (sic) Management, Neighborhood Risk Management, American Home Assurance Company and AIG Claims ” . . . from any and all claims, medical expenses, liens, and claims for demands, damages, actions, causes of actions or suits of any kind or nature whatsoever . . .” resulting from the rat bite injury. The release does not specifically name Codman Square. The release includes the following general language discharging ” . . . all other persons, firms or corporations, associations or partnerships liable or who might be claimed to be liable from claims, damages and injuries . . .” arising from the rat bite injury.

In December 2006, Byrd commenced this civil action against Codman Square seeking damages for injuries arising from the November 14, 2005 rate bite incident.

The parties dispute whether Byrd knew that Codman Square was the owner of the development before he executed the September 7, 2006 release. Further, the parties dispute whether Byrd intended to discharge Codman Square at the time he executed the release.

Discussion

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that the party opposing the motion has no reasonable expectation of proving an essential element of that party’s case.” Kourouvacilis v. General Motors Corp, 410 Mass. 706, 716 (1991).

General Language in Release. Codman Square argues that as a matter of law the general discharge language in the September 7, 2006 release executed by Byrd (” . . . all other persons, firms or corporations, associations or partnerships liable or who might be claimed to be liable from claims, damages and injuries . . . “) bars Byrd from asserting any claims against Codman Square arising from the November 14, 2005 rate bite incident.

With the passage of G.L. c. 231B, s. 4 in 1962, the legislature abolished the old common law rule that the discharge of one joint tortfeasor constituted a discharge of all other joint tortfeasors. Cram v Town of Northbridge, 410 Mass. 800 (1991). G.L. c. 231B, s. 4 provides that, “When a release . . . is given in good faith to one of two or more persons liable in tort for the same injury: (a) It shall not discharge any of the other tortfeasors

from liability for the injury unless its terms so provide …”

Codman Square presents the same argument raised by the defendant in Cram, supra. at 802, that “the release signed by the plaintiff does provide for the discharge of other tortfeasors since (under the stereotype boiler plate words), it exempts from liability `all other persons, firms or corporations.’ The court in Cram rejected the defendant’s argument. Rather, it interpreted the provision of G.L. c. 231, s. 4, to mean that “a plaintiff who signs a general release form does not discharge all potential joint tortfeasors who are not specifically mentioned in the release unless the plaintiff intends to do so.” Id. at 804. [3]

It is these specific issues – whether Codman Square is potentially a joint tortfeasor and whether Byrd intended to release Codman Square – that will determine whether Byrd can pursue his personal injury claims against Codman Square. I conclude that these mixed issues of fact and law cannot be resolved upon summary judgment.

First, Codman Square is potentially a “joint tortfeasor” with respect to the claims asserted by Byrd arising from the rat bite incident. Even though Winn Management was retained by Codman Square to manage the development on a day-to-day basis, Codman Square retained certain control and authority as the owner with respect to the maintenance and repair of the development. Under the terms of the management contract existing at the time of the rat bite

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[3] Codman Square did not include a citation to Cram in its memorandum of law. This is surprising given that Cram addresses the very issue raised in Codman Square’s summary judgment motion.

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incident, the prior approval of Codman Square was required for any maintenance or repair expenditure that exceeds $1,500.00. Further, the management contract provided that Winn Management would not take any maintenance or repair related action “so long as the owner is contesting, or has affirmed its intention to contest” any governmental orders or requirements affecting the development.

Byrd has asserted personal injury-based claims against Codman Square for breach of the implied warranty of habitability, violation of G.L. c. 186, s. 14, negligence and violation of G.L. c. 93A.

There exists with respect to every residential tenancy an implied warranty of habitability that the premises are fit for human habitation. Boston Housing Authority v. Hemingway, 363 Mass. 184, 199 (1973). Where a tenant is injured as a result of the owner’s breach the implied warranty of habitability, the tenant may recover damages for personal injuries. Young v. Garwicki, 380 Mass. 162, 170-171 (1980); Berman & Sons, Inc. v. Jefferson, 379 Mass. 196 (1979); Crowell v. McCaffrey, 377 Mass. 443 (1979). Even where an owner hires a management company to manage the property, the owner remains obligated to comply with the implied warranty. The owner’s obligations cannot be waived as a matter of public policy. Boston Housing Authority v. Hemingway, supra. Here there exist

disputed issues of fact as to whether there was a rodent problem at 3 Gaylord Street and whether Codman Square knew or should have known of the problem before Byrd was injured. [4]

The quiet enjoyment statute, G.L. c. 186, s.14, provides that a “lessor or landlord” who “directly or indirectly interferes with the quiet enjoyment of any residential premises” shall be liable for “actual or consequential damages or three month’s rent, whichever is greater …” Actual damages includes personal injury damages. The statute requires proof that the landlord’s conduct caused a serious interference with the tenant’s quiet enjoyment of the premises. Simon v. Solomon, 385 Mass. 91 (1982). A serious interference is an act or omission that impairs the character and value of the leased premises. Doe v. New Bedford Housing Authority, 417 Mass. 273, 284-285 (1994); Lowery v. Robinson, 13 Mass. App. Ct. 982 (1982). A landlord violates

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[4] In his affidavit, Byrd states that shortly after he moved into 3 Gaylord Street, he saw rats in his apartment and outside the building by the dumpster. There is no evidence in the summary judgment record that Byrd complained to Winn Management about rodents until after he was bitten on November 14, 2005. If this is correct then with respect to the issue of notice, the disputed issue of fact will be whether a rodent problem existed at the inception of Byrd’s tenancy (in such a situation the owner is presumed to have notice of the problem) or whether Codman Square was otherwise aware of the problem (either from complaints from other tenants or from observations made by its agents or employees).

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G.L. c. 186, s.14 where he had notice, or reason to know of a serious condition adversely affecting the tenant’s use of the apartment, and failed to take appropriate corrective measures. Al Ziab v. Mourgis, 424 Mass. 847, 850-851 (1997); Cruz Management Co., Inc. v. Thomas, 417 Mass. 782 (1994). As the property manager, Winn Management is considered a landlord within the meaning of Section 14. As the owner of residential property, Codman Square is also considered a “lessor or landlord” within the meaning of Section 14. With respect to the quiet enjoyment claim, there exist disputed issues of fact as to whether a rodent problem existed at 3 Gaylord Street, whether Codman Square had notice or reason to know there was a rodent problem before Byrd was injured and whether Codman Square then failed to take appropriate corrective measures.

As a matter of negligence law, a landowner – such as Codman Square – owes a common law duty to those lawfully upon its property to maintain the property in a reasonably safe condition and exercise reasonable care to correct any unsafe conditions at the premises within a reasonable period of time after he first knew or should have known of the conditions. Young v. Garwicki, supra. With respect to the negligence claim there exist disputed issues of fact as to whether a rodent problem existed at 3 Gaylord Street, whether Codman Square had notice or reason to know there was a rodent

problem before Byrd was injured and whether Codman Square then failed to exercise reasonable care to correct the problem.

Finally, a person who suffers personal injury as a result of a property owner’s unfair or deceptive trade practice may recover actual damages under G.L. c. 93A. Under the provisions of the Chapter 93A landlord-tenant regulations, 940 CMR s.3.17 (1) (i), “it shall be an unfair and deceptive practice for an owner to . . . fail to comply with the State Sanitary Code or any other law applicable to the conditions of a dwelling unit within a reasonable time after notice of a violation of such code or law from the tenant or agency.” An owner violates G.L. c. 93A where a breach of the implied warranty of habitability is found by the court to be material and substantial. Cruz Management Co. Inc., v. Thomas, 417 Mass. 782 (1994); Dorgan v. Loukas, 19 Mass.App.Ct. 959 (1985). The State Sanitary Code, 105 C.M.R. s.410.550 (B) provides that “the owner of a dwelling containing two or more dwelling units shall maintain it and its premises free from all rodents.” With respect to the Chapter 93A claim, there exist disputed issues of fact as to whether a rodent problem existed at 3 Gaylord Street, whether Codman Square had notice or

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reason to know there was a rodent problem before Byrd was injured and whether Codman Square failed to correct the problem within a reasonable time after notice.

As the owner of the development, Codman Square is potentially liable to Byrd under each of the four theories set forth in the complaint. It is for the jury to determine the facts and decide these claims.

Second, there exist disputed issues of material fact as to whether Byrd intended to release Codman Square at the time he executed the release in September 2006. The plaintiff, pointing to the first occupancy agreement (that identifies Codman Square as the owner) and the complaint in this action (that also identifies Codman Square as the owner), argues that Byrd must have known that Codman Square was the owner of 3 Gaylord Street, and therefore intended to release Codman Square from liability at the time he executed the release. Byrd, in his affidavit, states that he recalls only signing the second occupancy agreement that identifies BHMPA as the leaseholder and Winn Management as the manager. He further states that he does not recall signing and did not receive a copy of the first occupancy agreement (between Winn Management and BHMPA that identifies Codman Square as the owner). Finally, Byrd states that at the time he signed the release in September 2006, he did not know that Codman Square was the owner and did not intend to release Codman Square from liability arising from the rat bite incident. Byrd’s attorney, Eliza J. Minsch, states in her affidavit that at the time the release was executed on September 7, 2006, she did not know who owned 3 Gaylord Street. She further states that Byrd “only intended to release Winn Management from liability, not the owner of the premises.” Attorney Minsch states that it was not until several weeks after Byrd had signed the release that she determined that Codman Square was the “likely”

owner of 3 Gaylord Street. She then sent Codman Square a demand letter on October 17, 2006, and commenced this civil action on December 14, 2006.

It is for a jury to sort through these disputed factual issues and determine whether Byrd intended to release Codman Square as part of the September 7, 2006 general release.

Effect of Agent’s Release on Principal. Codman Square, citing to Bailey v. Town of Bourne, 38 Mass.App.Ct 70, 72 and Tewksbury v. Fellsway Laundry, 319 Mass. 386 (1946), [5]

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[5] The holding in Tewksbury is irrelevant to any issue raised in the summary judgment motion. In Tewksbury at p. 389, the court held that in the absence of fraud, duress or mutual mistake, a release executed by the injured plaintiff in favor of the defendants cannot be avoided as against the same defendants merely because the plaintiff’s injuries proved more serious than the plaintiff believed at the time he executed the release.

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argues that Byrd cannot pursue personal injury claims against Codman Square arising from the rat bite incident because “a general release given to an agent will preclude a subsequent action against the principal.” Codman Square contends that because Winn Management was its agent with respect to the management and maintenance of the development, the release executed by Byrd that discharged Winn Management also discharged Codman Square as Winn Management’s principal.

Codman Square’s statement of law is only partially correct. The court in Bailey v. Town of Bourne, supra., cites to the case of Elias v. Unisys Corp, 410 Mass. 479 (1991). In Elias, the court held that when a plaintiff executes a general release in favor of an agent (but does not specifically name the principal), the agent’s principal nonetheless is discharged from liability to the extent such liability is based upon principles of respondeat superior or vicarious liability. In effect, the release of the agent will discharge the innocent or blameless principal whose liability is based solely on the agent’s wrongdoing. However, where as is the case here, the claims involve allegations of joint liability on the part of the agent and principal, the rule set forth in Cram v Town of Northbridge, supra., applies. As I stated earlier, the court in Cram interpreted the provision of G.L. c. 231, s. 4, to mean that “a plaintiff who signs a general release form does not discharge all potential joint tortfeasors who are not specifically mentioned in the release unless the plaintiff intends to do so.” Id. at 804.

Codman Square, as the owner of residential property, owes its tenants statutory and common law duties of care distinct from any duties of care that its property manager might owe its tenants. For this reason, Codman Square is potentially liable to Byrd as a joint tortfeasor. To the extent that Byrd’s claims against Codman Square are not based upon principles of respondeat superior or vicarious liability, the release executed by Byrd to Winn Management (as

agent) does not discharge Codman Square (as principal) as a matter of law.

Conclusion

Accordingly, Codman Square’s Motion for Summary Judgment is DENIED.

SO ORDERED.

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cc: Eliza J. Minsch, Esq.

Ethan Triestman, Esq.

Michael D. Keohane, Esq.

Erin M. Mullen, Esq.

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End Of Decision

HOUSING COURT

MARIA SULLIVAN, Plaintiff VS. DEBORAH ANDERSON, Defendant

Docket # SUMMARY PROCESS NO. 08H84SP000717

Parties: MARIA SULLIVAN, Plaintiff VS. DEBORAH ANDERSON, Defendant

Judge: /s/ JEFFREY M. WINIK

FIRST JUSTICE

Date: March 12, 2008

ORDER

1. Plaintiff’s Motion for Leave to File Motions to Dismiss and Motion for Summary Judgment are ALLOWED.

2. Defendant’s Motion for a Non-Thursday Trial Date is ALLOWED. The clerk has scheduled the jury trial to commence on March 31, 2008.

3. Plaintiff’s Motion to Dismiss Defendant’s Claim for Discrimination is DENIED. The plaintiff is the defendant’s residential landlord. The defendant’s G.L. c. 151B, s.4 discrimination counterclaim involves allegations of wrongful conduct on the part of the plaintiff related to the residential tenancy. The plaintiff argues that the defendant is barred from asserting her discrimination counterclaim in

the Housing Court because she did not first file an administrative complaint with the Massachusetts Commission on Discrimination (“MCAD”). The plaintiff is mistaken. G.L. c. 151B, s. 9, p.2 states in relevant part that, “Any person claiming to be aggrieved by an unlawful practice relative to housing under this chapter, but has not filed a complaint pursuant to Section five [to the MCAD], may commence a civil action . . . in the housing court within whose district the alleged unlawful practice occurred . . .” The parties have stipulated that the defendant has not filed a complaint with the MCAD. Accordingly, the defendant may pursue her housing-based discrimination claim by filing an action in the Housing Court without first filing an administrative complaint with the MCAD.

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4. Defendant’s Motion for Joinder Pursuant to Mass.R.Civ.P. 19 and 20 is DENIED. The jury trial is scheduled to commence on March 31, 2008. Allowing the defendant to assert claims against third parties (the plaintiff’s husband and daughter) would require that the summary process trial be continued for an indefinite period of time. The Court is not prepared to sanction any further delays in this case. Counterclaims in summary process cases are permissive not mandatory. The defendant may pursue any claims she might have against the plaintiff’s husband or daughter in a separate action. Joinder of the plaintiffs husband or her daughter is not necessary to adjudicate the plaintiff’s claim for possession, the defendant’s affirmative defenses or the defendant’s counterclaims against the plaintiff.

5. Plaintiffs Motion to Dismiss Defendant’s Claim that Tenancy was not Properly Terminated and/or Case not Properly Brought is ALLOWED with assent of all parties.

6. Defendant’s Motion for Partial Summary Judgment Based on Unlawful Allegation of Non-Payment is DENIED. There exist disputed issues of material fact pertaining to whether the defendant voluntarily terminated her Section 8 lease before the Section 8 leasing agent terminated the Housing Assistance Payments Contract. The amount of rent (or payments for use and occupancy), if any, that the defendant was required to pay the plaintiff from November 2007 to the present involve factual disputes that must be decided at trial.

7. The defendant shall have seven (7) days to file affidavit and opposition to Plaintiff’s Motion for Summary Judgment on Defendant’s Claim for Violation of G.L. c. 93A. The Court shall rule on the motion without further hearing thereafter.

SO ORDERED.

End Of Decision

HOUSING COURT

CIERA BURNETT VS. QUINCY RESIDENTIAL REALTY and DANA SCHNEIDER

Docket # CIVIL ACTION NO. 07H84CV000557

Parties: CIERA BURNETT VS. QUINCY RESIDENTIAL REALTY and DANA SCHNEIDER

Judge: /s/JEFFREY M. WINIK, FIRST JUSTICE

Date: April 28, 2008

ORDER FOR ASSESSMENT OF DAMAGES AND ENTRY OF FINAL JUDGMENT

This matter is before the Court on the plaintiff’s Motion for Assessment of Damages. The plaintiff commenced this action by filing a complaint in August 2007. The plaintiff alleges that the defendant failed to provide services (including working exterior door locks, heat and hot water) promised in a residential lease (Count One – Breach of Contract), violated the security deposit statute (Count Three- G.L. c. 186, s. 15B) and engaged in unfair or deceptive trade practices (Count Two – G.L. c. 93A). The defendant was served with a summons and complaint, but did not appear or file a responsive pleading. The defendant was defaulted on February 27, 2008. The defendant was sent a hearing notice but she did not

appear at the assessment of damages hearing on April 25, 2008.

Based upon the undisputed testimony and evidence presented at the assessment hearing, I find and rule as follows:

In August 2006, the plaintiff, Ciera Burnett, signed a residential lease with the defendants, Quincy Residential Realty LLC and Dana Schneider, and commenced her tenancy at 159 Delhi Street, in Boston. The monthly rent was $1,000.00. At the inception of her tenancy

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the plaintiff gave the defendants a $500.00 security deposit and pre-paid rent totaling $5,000.00. The defendants never accounted for the security deposit and never provided the plaintiff with a statement of conditions.

The defendants did not maintain the plaintiff’s apartment in good repair and safe condition. They failed to provide heat or hot water. Further, the exterior door did not have a working lock. Finally, the bathtub was not usable. Despite repeated requests from the plaintiff, the defendants never corrected these seriously defective conditions. On September 18, 2006, a thief gained entry to the building through the defective exterior door. The thief then broke through the interior door and entered the plaintiffs apartment. The thief stole the plaintiff s personal computer (with a current depreciated market value of $1,700.00) and jewelry (valued at $200.00). Because of the defendants’ failure to correct the serious health and safety issues, the plaintiff was forced to vacate her apartment by the end of October 2006. I rule that the plaintiff was constructively evicted from her apartment. Despite repeated demands (including a written Chapter 93A demand letter dated January 2, 2007), the defendants refused to refund the $5,000.00 rent payment made by the plaintiff in August 2006, refused to return her security deposit and refused to compensate her for the property taken by the thief.

I find that the fair rental value of the premises was $0.00 for the period from August through October 2006. The plaintiff was not obligated to pay the defendants any rent thereafter because the lease was terminated upon the plaintiffs construction eviction from the premises.

The court assesses damages as follows:

1. Statutory damages of $1,500.00 plus $43.75 in interest pursuant to G.L. c. 186, s. 15B (Count Three);

2. Actual damages of $7,900.00 for breach of contract (Count One), trebled to $23,700.00 pursuant to G.L. c. 93A (Count Two). [1] The Court awards the plaintiff reasonable attorney’s fees of $1,803.00 and costs of $217.84 pursuant to G.L. c. 93A.

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[1] The plaintiff’s claims arise from the same operative facts. The plaintiff is not entitled to cumulative damages. Accordingly, I shall award damages under G.L. c. 93A. This provides the plaintiff with the largest recovery. See, Wolf berg v. Hunter, 385 Mass. 390 (1982).

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ORDER FOR JUDGMENT

Based upon all the evidence presented at the hearing in light of the governing law, it is ORDERED that:

1. Judgment enters for the plaintiff on Count One (Breach of Contract) and Count Two (G.L. c. 93A) of the Complaint, with damages awarded under G.L. c. 93A in the amount of $23,700.00 plus reasonable attorney’s fees of $1,803.00 and costs of $217.84.

2. Judgment enters for the plaintiff in the amount of $1,543.75 on Count Three (G.L. c. 186, s. 15b) of the Complaint.

cc: Andrew M. Fischer, Esq.

Quincy Residential Realty LLC

Dana Schneider

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End Of Decision

HOUSING COURT

PIETA BLAKELY VS. TAMARA COUNCIL VS. BOSTON HOUSING AUTHORITY

Docket # SUMMARY PROCESS NO.04H84SP001695

Parties: PIETA BLAKELY VS. TAMARA COUNCIL VS. BOSTON HOUSING AUTHORITY

Judge: /s/JEFFREY M. WINIK, FIRST JUSTICE

Date: April 25, 2008

FINDINGS OF FACT, RULINGS OF LAW AND ORDER OF JUDGMENT

In May 2004, plaintiff Pieta Blakely commenced this summary process action against defendant Tamara Council seeking possession of residential premises and damages for unpaid rent. The defendant filed an answer that included counterclaims arising from her occupancy at the premises. The defendant also filed an amended third-party complaint against third-party defendant Boston Housing Authority seeking a declaratory judgment, injunctive relief and damages arising from the denial of her application for Section 8 tenancy approval and the termination of her Section 8 voucher. The plaintiff filed an amended complaint that added a negligence claim against third-party defendant Boston Housing Authority. Prior to trial the defendant vacated the premises rendering the plaintiff’s possession claim moot.

Based upon all the credible testimony and evidence presented at trial, and the reasonable inferences drawn therefrom, the Court finds as follows:

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Findings of Fact

The defendant/third-party plaintiff, Tamara Council, lived in Lewiston, Maine in 2003. While living in Maine, Council received a Section 8 housing voucher issued in accordance with the provisions of the Section 8 Housing Choice Voucher Program.[1] The Section 8 program administrator in Maine, the Lewiston Housing Authority (“LHA”), determined that Council met the eligibility requirements

of the program based upon her family income and composition. The LHA recorded Council’s family composition and income information on the HUD-50058 form. Council’s sole source of income in 2003 was assistance payments administered by the Maine welfare department under Maine’s Temporary Assistance for Needy Families Program (“TANF”). She had no other family income.

In July of 2003, Council notified the LHA of her intention to move from Maine to Boston. [2] The LHA approved Council’s request that she be permitted to use her Section 8 voucher to find an apartment in Boston. On August 22, 2003, the LHA issued Council a new Section 8 voucher that was valid from August 22 until October 22, 2003. [3]

The third-party defendant, the Boston Housing Authority (“BHA”), participates in and administers the Section 8 voucher program in the City of Boston.

On September 30, 2003, acting in compliance with the Section 8 portability regulations, the LHA (the initiating PHA) sent the BHA (the receiving PHA) copies of Council’s Section 8 voucher, her HUD Form 52665 (family portability information), and her most recent HUD Form 50058 that included information about her income and family composition. The documentation provided by the LHA showed that Council’s sole source of income was welfare assistance administered by the State of Maine.

The portability regulations, 24 C.F.R. s. 982.355 (a) and (b), require that the receiving PHA “must administer assistance for the family” and “must issue a voucher to the family.”

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[1] 42 U.S.C. s. 1437 (f).

[2] In accordance with the “portability” provisions of the Section 8 program, 24 C.F.R. s.s.s. 982.314, 982.353, 982.355, a voucher-holder has the right to transfer her voucher anywhere in the United States, so long as the new location is within the geographic jurisdiction of a housing authority that participates in and administers the Section 8 voucher program.

[3] The HUD portability regulations refer to a participating family that moves to a new geographic location as a “portable family.” The HUD portability regulations refer to the public housing authority (“PHA”) that issues the initial Section 8 voucher to the program participant as the “initiating PHA” and refers to the PHA in the community where the program participant moves as the “receiving PHA.”

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Subpart (c) (1) states that “[t]he receiving PHA does not redetermine eligibility for a portable family that was already receiving assistance in the initial PHA Section 8 tenant-based program.” Since Council was already receiving assistance from the LHA, she was deemed eligible to participate in the Section 8 voucher program in Boston. However, subpart (c) (4) provides that the receiving PHA may opt to conduct a new reexamination of the household composition and income information set forth in the HUD Form 50058 it received from the initiating PHA. If the receiving PHA decides to reexamine such information, “the receiving PHA may not delay issuing the family a voucher or otherwise delay approval

of a unit unless the recertification is necessary to redetermine income eligibility.”

On October 10, 2003, Council met with the BHA’s Section 8 leasing officer, Johanne Pagan. The BHA leasing officer had received Council’s Section 8 documentation from the LHA. Relying on the income and family composition information contained in the LHA documents, the BHA leasing officer verified Council’s family composition and unit size need. Council told the BHA leasing officer that she intended to apply for assistance from the Massachusetts Transitional Assistance Department (“MTAD”). Council gave the BHA leasing officer a letter stating that she had an appointment scheduled for the next week at the Dorchester office of the MTAD. The BHA leasing officer gave Council a form letter dated October 10, 2003 that directed her to obtain a letter from DTA that would state what Council’s prospective income and benefits would be once she became a Massachusetts resident. The BHA leasing officer told Council to bring the MTAD letter with her when she came to the BHA office to sign her Section 8 lease. [4] The BHA leasing officer requested that Council provide this information because it was the BHA’s customary practice and procedure to establish an annual recertification date that would coincide with the date of the new lease. Further, the BHA would use the income information to calculate accurately Council’s share of the Section 8 contract rent once she found a new apartment in Massachusetts.

At the October 10, 2003 meeting, the BHA leasing office verified the original issue and expiration dates of the Section 8 voucher that the LHA had issued to Council. The leasing officer then issued a new BHA Section 8 Housing Choice Voucher to Council. The BHA

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[4] Council had not as of that date located a new apartment. As of October 10, 2003, Council’s only income was the TANF assistance she continued to receive from the State of Maine. In asking Council to obtain prospective income verification information from the MTAD, the BHA leasing officer reasonably believed that Council’s primary source of income would be public assistance from the MTAD by the time Council moved to Boston and found a Section 8 eligible apartment.

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Section 8 voucher had the same issue date (August 22, 2003) and expiration date (October 22, 2003) as the LHA voucher. The Section 8 portability regulations provide that the voucher issued by the receiving PHA replaces and supersedes the voucher that had been issued by the initiating PHA. Accordingly, the operative voucher as of October 10, 2003 was the one issued to Council by the BHA.

As of October 10, 2003, the BHA had complied with the obligations it owed to Council as the “receiving PHA” under the provisions of HUD’s Section 8 portability regulations.

Council met with an MTAD caseworker in mid-October 2003. She was told that the MTAD would not open a new case until Council’s Maine public assistance case was closed, and that the MTAD would not prepare a prospective budget until the new case was opened. Council never reported the results of her meeting at the MTAD with

anyone at the BHA.

Shortly after her meeting at the MTAD in mid-October 2003, Council returned to Maine. Council worked with a rental agent, Lee Cody, to find a Section 8 suitable apartment in Boston. During the remainder of October and most of November 2003, Council, while living in Maine, made short, infrequent trips to Boston to search for an apartment. [5]

In October 2003, Cody (acting for Council) located two potentially suitable apartments and submitted written requests to the BHA for Section 8 lease approval. The BHA inspected and rejected each apartment. The BHA then extended Council’s Section 8 voucher to November 30, 2003. [6]

Council gave birth to her child on November 8, 2003. She was living in Maine at the time.

In early November 2003, Cody located a potentially suitable three-bedroom apartment at 323 Quincy Street, in the Dorchester section of Boston (the “Quincy Street apartment”). The plaintiff, Pieta Blakely, owned the dwelling at 323 Quincy Street. At this time Council was still in Maine. Blakely dealt only with Cody. Blakely agreed to lease the Quincy Street apartment to Council and to participate in the Section 8 voucher program. Council and Blakely signed a Request for Tenancy Approval application for the Quincy Street apartment. The application was dated November 10, 2003. Cody submitted the application to the BHA. On November 20, 2003,

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[5] Council was in the later stages of her pregnancy during this period. This is why she had Cody assist her.

[6] In accordance with the portability regulations, 24 C.F.R. s. 982.355 (c) (6), “[t]he receiving PHA must determine whether to extend the voucher term.” The BHA extended the voucher term through November 30, 2003.

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an inspector from the BHA re-inspected and approved the Quincy Street apartment. [7] Blakely expected that the lease term would commence on December 1, 2003.

As of November 20, 2003, all that remained to done to complete the Section 8 approval process for the Quincy Street apartment was (1) the BHA needed to calculate Council’s share of the Section 8 contract rent (based upon household income information that the BHA had asked Council to obtain from the MTAD), (2) Blakely needed to sign a Housing Assistance Payments Contract (“HAP contract”), and then (3) Blakely and Council needed to sign a BHA-approved Section 8 lease. Blakely and the BHA assumed that Council would promptly contact the BHA leasing officer to make an appointment to complete the application approval process.

Council’s Section 8 voucher was set to expire on November 30, 2003. That voucher term was automatically extended during the period that Council was actively engaged the lease approval process for the Quincy Street apartment. However, were the lease approval process for the Quincy Street apartment to end either with the BHA rejecting the apartment or Council failing to complete the application process, Council’s Section 8 file would be closed and

her Section 8 voucher would expire by its own terms. [8]

After the BHA re-inspected and approved the Quincy Street apartment on November 20, 2003, Cody asked Blakely if Council could move into the apartment before the Section 8 lease and HAP contracts were executed. Blakely had prior experience as a landlord with the Section 8 program. She was familiar with the Section 8 program documents, and was aware that the BHA would be obligated to pay the subsidized portion of the contract rent only if she executed an approved Section 8 lease and HAP contract. Nonetheless, Blakely agreed that Council could move into the apartment before the lease and HAP contract were signed.

Council returned to Boston and moved into the Quincy Street apartment sometime during the last week of November 2003. Blakely never met Council before Council moved into the Quincy Street apartment. Blakely allowed Council to move into the apartment even though (1) the BHA had not completed Council’s income re-certification that was necessary to establish Council’s share of the Section 8 contract rent, (2) Council and Blakely had not signed a BHA approved Section 8 lease, and (3) the BHA and Blakely had not signed a HAP contract.

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[7] The apartment did not pass the first inspection conducted on November 18, 2003.

[8] Under those circumstances, the BHA would not have been obligated to extend or issue a new Section 8 voucher if, by way of example, the BHA did not have adequate funding to support a new Section 8 voucher.

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Shortly after Council moved into the Quincy Street apartment, Council told Blakely that she would promptly contact the BHA leasing officer to arrange a date and time to complete the Section 8 lease approval process. Blakely believed her and made no effort to contact the BHA. Blakely admitted that she understood she was taking a financial risk when she allowed Council to move into the apartment without an executed lease and HAP contract. Nonetheless, she expected to be paid. Blakely thought that even if the Section 8 lease and HAP contract were signed within a few weeks, the BHA would pay its share of the Section 8 rent retroactive to December 1, 2003. Blakely never agreed to waive the rent due for December 2003 and the months thereafter.

The parties stipulated at trial that $1,530.00 represents the fair rental value for the monthly use and occupancy of the premises during the months that Council lived at the Quincy Street apartment.

Council testified that as soon as she moved into the Quincy Street apartment in late November 2003, she left telephonic messages for the BHA leasing officer, but that those messages were never returned. I do not find Council’s testimony on this issue credible. In response to questions regarding her contacts with the BHA, Council testified that she “assumed” that Cody was “handling everything.” Cody never testified at trial. I accept as credible the testimony of Marilyn O’Sullivan, the BHA’s Chief Office for Occupancy and Leased Housing. O’Sullivan testified that there was

no contact between Council (or Cody) and any person working for the BHA between November 20, 2003 and mid-March 2004. I find that Council never had any contact (direct or indirect) with the BHA leasing officer or any other BHA employee at any time between November 20, 2003 (when the BHA inspector approved the Quincy Street apartment) and mid-March 2004 (after Council had received the notice to quit from Blakely). [9]

At the end of February 2004, in a letter from the Maine public welfare department dated February 26, 2004, the BHA for the first time received notice that Council was no longer receiving welfare benefits from the State of Maine and that her Maine welfare case had been closed. This was the first communication that the BHA had received from anyone regarding Council since BHA inspected and approved the Quincy Street apartment on November 20, 2003. The BHA had not heard from Council (or Cody) for over three months. Around this same time

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[9] There is no evidence that Council contacted the BHA leasing officer at any time after October 10, 2003, or that Cody contacted the BHA leasing officer at any time after November 20, 2003.

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the BHA learned that because the BHA had not requested that the LHA accept responsibility for Council’s Section 8 subsidy under the provisions of the Section 8 portability regulations (the BHA had not made the request because Council had not contacted the BHA to complete her Section 8 lease approval), the LHA would no longer agree to reimburse the BHA for any subsidy payments that might be paid to Blakely on behalf of Council.

Blakely did not receive any rent from Council from December 2003 through March 2004. As the unpaid rent balance was growing Blakely became concerned and spoke to Council. Council told Blakely she was in communication with the BHA. Council’s statement was untrue.

In early March 2004, Blakely finally called the BHA leasing officer, and learned for the first time that Council had never contacted the BHA after November 20, 2003 to complete the Section 8 approval process. The leasing officer informed Blakely that because Council had not contacted the BHA for over three months, the BHA would not approve Council’s Section 8 application for the Quincy Street apartment and would not make any Section 8 rent subsidy payments to Blakely.

On March 14, 2004, Blakely served Council with a 14-day notice to quit for nonpayment of rent. As of March 2004, the amount of unpaid rent totaled $6,600.00.

Council contacted the BHA in mid-March 2004, after she had received the 14-day notice to quit from Blakely. Council demanded that the BHA complete the Section 8 lease approval process for the Quincy Street apartment and make retroactive Section 8 rent subsidy payments to Blakely for the period from December 2003 through March 2004. The BHA refused. After having not heard from Council (or Cody) for over three months (measured from the date on which the BHA inspector approved the Quincy Street apartment in late November

2003), the BHA concluded that Council had abandoned her Section 8 lease approval application for the Quincy Street apartment. Since the application was no longer open and active, Council’s Section 8 voucher (that had been extended to November 30, 2003) expired by its own terms. Further, the BHA determined that it was not authorized under the provisions of the Section 8 program rules and regulations to make any retroactive Section 8 rent subsidy payments to Blakely during the period that Council occupied the apartment without an approved and executed Section 8 lease and HAP contract. Finally, the BHA refused to re-open Council’s November 10, 2003 Section 8 lease approval application because by the time Council finally contacted the BHA in mid-March 2004, the LHA had notified the BHA that because of the delay in completing Council’s

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application process the LHA was no longer required under the provisions of the Section 8 portability regulations to reimburse the BHA for any subsidy payments the BHA made on behalf of Council. The BHA had insufficient funds in its own Section 8 accounts to subsidize Council’s rent pursuant to the 2003 voucher or to support the issuance of a new Section 8 voucher. For these reasons, the BHA told Council that it would not re-open her November 10, 2003 Section 8 lease approval application for the Quincy Street apartment and would not issue her a new Section 8 voucher.

As of March 2004, Council owed Blakely $6,600.00 in unpaid rent for the use of the premises for the months of December 2003 to March 2004. Council did not have any money to pay the past or future rent. The BHA was not legally authorized to make any Section 8 subsidy payments to Blakely because she had never executed a HAP contract. Even if in March 2004 the BHA had been willing to approve Council’s Section 8 application and execute a HAP contract, under the Section 8 program rules and regulations it could not have made rent subsidy payments to Blakely retroactive to December 2003. Blakely was unwilling to waive her claim to the unpaid rent for the period December 2003 to March 2004.

The parties stipulated at trial that the amount of unpaid rent for Council’s use of the Quincy Street apartment from December 2003 through June 2004 totaled $10,710.00.

Blakely commenced a summary process action against Council in May 2004. In June 2004, Council filed a third party compliant against the BHA seeking a declaratory judgment, injunctive relief and damages with respect to the November 10, 2003 Section 8 lease approval application. [10]

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[10] On August 11, 2004, the Court granted Council a preliminary injunction directing the BHA to complete the November 10, 2003 Section 8 tenancy approval application process and execute a HAP contract with Blakely. Blakely agreed to execute the HAP contract subject to the condition (which the parties agreed to upon stipulation) that she retained the right to pursue her claim for Section 8 rent subsidy payments from the BHA and/or Council retroactive to December 2003. In compliance with the August 11 preliminary injunction order the parties executed a Section 8 lease

and HAP contract, and the BHA commenced making rent subsidy payments to Blakely retroactive to July 2004.

The preliminary injunction order provided that “said lease and HAP contract shall terminate automatically should this preliminary injunction be vacated or dissolved.”

Many of the factual assertions set forth in the preliminary injunction record – which the court determined Council would likely be able to establish at trial – were not presented as evidence or proved at trial. The most critical difference between the evidence presented at the preliminary injunction hearing and at trial was that there was no credible evidence presented at trial that Council (or Cody) contacted the BHA leasing officer anytime between November 20, 2003 and mid-March 2004. It was the likelihood that Council would prove at trial that she had contacted the BHA after she came to Boston in November 2003 and actively tried to obtain the MTAD income information requested by the BHA that moved the Court to issue the preliminary injunction (the import being that Council would likely prove that she did not abandon her Section 8 lease approval application and that the BHA

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Sometime in August or September 2004, Council vacated the Quincy Street premises. Council did not notify Blakely before or after she vacated the premises.

Council did not present any evidence pertaining to her implied warranty of habitability, quiet enjoyment, retaliation or Chapter 93A counterclaims against Blakely.

Rulings of Law

Blakely’s Possession Claim Against Council. Council voluntarily vacated and surrendered possession of the Quincy Street apartment prior to trial. Therefore, Blakely’s possession claim has been rendered moot.

Blakely’s Rent Claim Against Council. As of the November 20, 2003, Council and Blakely had not executed a lease and had not entered into an oral tenancy at will agreement. Nonetheless, Blakely gave Council permission to occupy the Quincy Street apartment before the BHA had completed the Section 8 lease approval process and before a Section 8 lease was signed. Blakely reasonably expected in November 2003 that Council would promptly contact the BHA, complete the Section 8 approval process and execute a Section 8 lease. Blakely’s assumptions were wrong. Council did not contact the BHA until after she received the notice to quit from Blakely – more than three months after she moved into the apartment.

From December 2003 through June 2004, Council occupied the premises with Blakely’s permission but without ever executing a Section 8 lease or entering into a tenancy at will agreement. Nonetheless, Blakely expected to receive payment representing the fair value for Council’s use of the premises. Council received a significant benefit and she knew or should have known that Blakely expected to be paid on a monthly basis for Council’s use of the premises. Council did not make any payments to Blakely for her use of the apartment between December 2003 and June 2004.

I rule that from December 2003 through June 2004, Council occupied the Quincy Street premises as a tenant at sufferance. Under G.L. c. 186, s. 3, a tenant at sufferance is obligated to pay

rent during the period that she occupies the premises. Blakely understood that she was taking a risk in allowing Council to occupy the apartment before a Section 8 HAP contract and

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failed to assist her in obtaining the MTAD income information). Council neither contacted the BHA after November 20, 2003 nor asked the BHA for assistance in obtaining the requested prospective income information.

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lease were executed. The risk was that she would have to look to Council (who had little if any income) to pay the fair rental value for the monthly use of the premises if Council failed to complete the Section 8 lease approval application process or if the BHA for any reason refused to approve the Section 8 application.

I rule that Council was obligated to pay Blakely $1,530.00 per month from December 2003 through June 2004, representing the fair rental value for her use of the premises as a tenant at sufferance. In breach of her legal obligations, Council did not make any rent payments to Blakely during this seven-month period. The amount that Council owes Blakely in damages totals $10,710.00. [11]

Council’s Federal Law Claim Against the BHA. Council claims that in violation of her rights under federal law, the BHA refused to complete the Section 8 lease approval application process for the Quincy Street premises, refused to approve a Section 8 lease, refused to execute a HAP contract and wrongfully terminated her Section 8 voucher.

The HUD Section 8 regulations, 24 CFR s. 982.305, require that before a new Section 8 tenancy can be implemented the following steps must be completed: (1) the PHA must inspect and determine that the apartment satisfies HUD’s housing quality standards; (2) the PHA must approve the Section 8 lease between the landlord and tenant (including the amount of Section 8 contract rent and subsidy), and (3) the landlord and tenant must execute the Section 8 lease. Further, the PHA may not make any Section 8 housing assistance payments to the landlord until the HAP contract has been executed. The PHA must use its best efforts to execute a HAP contract with the landlord before the lease terms begins. The HAP contract must be executed no later than sixty (60) calendar days from the beginning of the lease term. The PHA is not obligated to make any subsidy payments to the unit owner until after the HAP contract is executed.

At the October 10, 2003 meeting, the BHA Section 8 leasing officer (reasonably believing that Council’s Maine public assistance case would be closed immediately when she moved to Boston) asked Council to obtain a written benefits letter from the MTAD that would set forth the prospective assistance benefits Council would receive once she moved to Boston.

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[11] Alternatively, Blakely is entitled to recover these damages from Council under a quantum meruit theory. See, Douillette v. Parmenter, 335 Mass. 305 (1957). Blakely provided a measurable benefit to Council, Council accepted the benefit with the

reasonable expectation that she would have to compensate Blakely, and Blakely expected to be compensated in exchange for providing the benefit.

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The BHA leasing officer told Council that she would need this information to complete the annual re-certification process and calculate Council’s share of the Section 8 rent once Council found a suitable apartment in Boston (as the BHA was entitled to do under 24 C.F.R. s. 982.516 and s. 982.355 (c) (4)). [12] The BHA leasing officer had to complete the rent subsidy calculation before a Section 8 lease could be executed. Anticipating the Council would obtain this information from MTAD by the time she moved to Boston, the leasing officer told her that she could bring the MTAD benefits letter to the BHA when she returned to the BHA office to complete the Section 8 application process sign the Section 8 lease. She told Council that her share of the Section 8 contract rent would be calculated at that time.

Council’s agent, Cody, submitted the request for Section 8 lease approval application for the Quincy Street apartment on November 10, 2003.

The BHA inspected and approved the Quincy Street apartment on November 20, 2003. As of that date, the remaining steps Council had to take to complete the Section 8 lease application process were to (1) obtain the prospective public assistance income letter from the MTAD, and (2) schedule an appointment to come into the BHA office with Blakely so that the BHA could complete the annual re-certification of household income, calculate Council’s share of the Section 8 contract rent, sign the HAP contract, and have Blakely and Council sign the Section 8 lease.

Once the Quincy Street apartment passed the November 20, 2003 re-inspection, the BHA was prepared and willing to complete the process necessary to approve Council’s pending Section 8 application. It was Council’s responsibility to contact the BHA leasing officer within a reasonable period of time after November 20, 2003 to schedule an appointment to complete the Section 8 lease approval process. The BHA was waiting for Council to contact the leasing officer.

The BHA owed Council a legal duty under 24 C.F.R. s. 982.335 (c) (10) to “provide assistance” in processing her Section 8 lease approval application. Under federal law, 24 C.F.R. s. 960.259 (c) (1), this assistance extends to efforts necessary to help Council to obtain required

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[12] It is the BHA’s policy and practice to verify the income for all Section 8 households – including portability households – at the time a new Section lease and HAP contract are signed. This allows the BHA to establish the tenant’s share of the Section 8 rent (and the subsidized amount that the BHA would be required to pay) and for administrative convenience to establish an annual re-certification date that coincides with the date that the lease and HAP contract are executed. This is consistent with the BHA’s obligation under federal law to re-certify household composition and income annually.

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third party income verification such as income information from the MTAD. Council argues that the BHA breached this legal duty because it failed to assist Council obtain income verification from the MTAD. Council argues that it was her inability to obtain this income information that prevented her from completing the Section 8 lease approval process. Council then argues that because the delay resulted from the BHA’s failure to comply with its obligations under the Section 8 program regulations, the BHA violated federal law when it refused in March 2004 to complete the Section 8 lease approval process for the Quincy Street apartment.

I rule that the BHA did not fail or refuse to provide assistance to Council with respect to her Section 8 lease approval application. Council did not take even the simplest steps that would have enabled the BHA to assist her to complete the Section 8 lease approval process in a timely manner. Council’s lack of diligence and common sense is striking. Back on October 10, 2003 (when the BHA leasing officer asked Council to provide prospective income information from the MTAD), Council told the BHA leasing officer that she had an appointment with the MTAD scheduled for the next week. Council knew that she would be returning to Maine shortly after the MTAD appointment. Council went to the MTAD the next week, however she never told the BHA leasing officer (either orally or in writing) that she had been unable to obtain the prospective income information from the MTAD. [13]

The Section 8 lease approval process was not completed because Council failed to make even the most minimal efforts to cooperate with the BHA. At no time after November 20, 2003 did Council tell the BHA leasing officer if or when she would be moving to Boston. Council did not contact the BHA leasing officer after she moved to Boston in late November 2003. She did not provide the BHA leasing officer with a local address or telephone number where she could be reached in Boston. She never told the BHA leasing officer that she had been unable to obtain the prospective budget letter from the MTAD or why she had been unable to obtain the requested information. [14] There is no evidence that the BHA leasing officer or any BHA employee knew or

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[13] Apparently, the MTAD caseworker told Council that she could not apply for public assistance in Massachusetts until her Maine public assistance file was closed. It is for this reason that MTAD would not provide her with a projected budget or other welfare benefit information.

[14] At the time of the October 10, 2003 meeting, the leasing officer reasonably assumed that when Council moved to Boston the Maine public assistance department would stop making assistance payments to Council and close her case. The leasing officer also reasonably assumed that Council would then begin to receive public assistance from the MTAD. Even if the leasing officer’s assumptions were wrong, the income verification requirement could have been quickly addressed had Council contacted the BHA leasing officer when she moved to Boston in late November 2003. Because Council never contacted the leasing officer to explain that she had been unable to obtain prospective

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in the exercise of reasonable care should have known, prior to March 2004, that Council had in fact moved to Boston or that she was living at the Quincy Street apartment. [15] The BHA was not required to guess what Council’s intentions might have been with respect to the Quincy Street apartment.

It was not until mid-March 2004, after Blakely had served her with the notice to quit for nonpayment of rent, that Council finally contacted the BHA leasing officer. Council’s action came too late to resurrect her Section 8 lease approval application. By the time Council contact the leasing officer, the BHA correctly determined that Council had abandoned her November 10, 2003 Section 8 lease approval application. Council’s Section 8 voucher expired by its own terms once her lease approval application was closed. The BHA no longer had the financial ability to subsidize Council’s rent or support a new Section 8 voucher.

I rule that Council abandoned her November 10, 2003 request for Section 8 lease approval application as a result of her failure without explanation or excuse to contact the BHA leasing officer between November 20, 2003 and March 2004 (more than three months from the date on which the BHA inspected and approved the Quincy Street apartment). The Section 8 voucher that the BHA issued to Council was extended through November 30, 2003. Since Council (through Cody) requested Section 8 lease approval for the Quincy Street apartment within the voucher period, the voucher expiration date was further extended while that November 10, 2003 application was processed. However, by the time Council contacted the BHA leasing officer in mid-March 2004, the BHA acted reasonably and in compliance with federal law when it determined that Council had abandoned her November 2003 Section 8 lease approval application. Once the application was closed Council’s Section 8 voucher expired by its own terms.

By February 2004, the BHA’s financial position changed significantly for the worse with respect to its ability to fund the Section 8 rent subsidy that Council’s would have received had she completed the lease approval process promptly in late November or December 2003. Because of Council’s inexcusable failure to cooperate with the BHA’s efforts to process her

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income information from the MTAD, the leasing officer had no reason to contact the MTAD directly to obtain third-party income verification (or as was the case here, the absence of income). Under these circumstances, the BHA’s failure to contact the MTAD on behalf of Council did not constitute a failure to “provide assistance” under 24 C.F.R. s. 982.335 (c) (10).

[15] It was in early March 2004 that the BHA first learned from Blakely that Council was living at the Quincy Street apartment.

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Section 8 lease application, a lease and HAP contract were never executed for the Quincy Street apartment. For that reason the BHA was never able to request that the LHA reimburse it for subsidy

payments due under the HUD portability regulations. The BHA did not make the request for the simple reason that it could not seek reimbursement for subsidy payments it had never made. In February or March 2004, the LHA informed the BHA that because the BHA as the “receiving PHA” had not requested reimbursement from the LHA as the “initiating PHA” within the time period specified in the Section 8 portability regulations, the LHA would not reimburse the BHA for any Section 8 subsidy payments it might make on behalf of Council going forward. Without that reimbursement from the LHA, the BHA did not have adequate funds in its Section 8 accounts to subsidize Council’s tenancy. Further, because the BHA did not have adequate funds available in its own Section 8 accounts, it could not support the issuance of a new Section 8 voucher.

Under these circumstances, I rule that:

a) The BHA complied with its duties and obligations owed to Council under HUD’s Section 8 portability regulations, 24 C.F.R. s. 982.355 (a) and (b). It issued Council a new Section 8 voucher in October 2003 and thereafter extended the expiration date of that voucher to November 30, 2003. The voucher’s expiration date was extended during the period that Council’s November 10, 2003 lease approval application was pending. However, the voucher expired by its own terms when after more than three months passed without hearing from Council, the BHA reasonably concluded that Council had abandoned her November 10, 2003 request for Section 8 lease approval application.

b) The BHA acted reasonably and lawfully in accordance with federal law, 42 U.S.C. s. 1437(f) and the HUD Section 8 program regulations promulgated hereunder (24 C.F.R. s.s. 982.314 (c) and 982.355 (a) and (b)) when in March 2004 the BHA (1) denied Council’s demand that it re-open her November 10, 2003 Section 8 request for lease approval application, approve a Section 8 lease and execute a HAP contract for the Quincy Street apartment retroactive to December 1, 2003, and (2) denied Council’s demand that it issue her a new Section 8 voucher.

Council’s Negligence Claim Against the BHA. Council contends that the BHA was negligent in failing or refusing to assist her and complete her November 10, 2003 Section 8 lease approval application process in a timely manner. She argues that the BHA owed her a duty of reasonable care under the circumstances arguing that it was foreseeable to the BHA that she

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would suffer injury (the loss of her apartment through eviction) and monetary harm (unpaid rent claimed by Blakely) as a result of the BHA’s negligent failure to assist her and complete the Section 8 lease approval process in a timely manner.

“Before liability for negligence can be imposed, there must first be a legal duty owed by the defendant to the plaintiff, and a breach of that duty proximately resulting in injury [citations omitted].” Davis v. Westwood Group, 420 Mass. 739, 742-743 (1995); Nelson v Massachusetts Port Authority, 55 Mass. App. Ct. 433, 435 (2002).

For the same reasons I determined that the BHA did not violate any obligations to Council secured under federal law, I rule that the BHA did not breach any common law duty of care it owed to

Council to provide assistance in a timely manner with her Section 8 lease approval application.

Blakely’s Negligence Claim Against the BHA. Blakely joined in Council’s contention that the BHA was negligent in failing to complete Council’s Section 8 lease approval process in a timely manner. Blakely argues that the BHA owed her a duty of reasonable care under the circumstances arguing that it was foreseeable to the BHA that Council and therefore Blakely would suffer monetary harm as a result of the BHA’s negligent failure to complete the Section 8 lease approval in a timely manner. Blakely alleges that she suffered monetary loss measured by the value of the rent subsidy payments that Blakely would have received from the BHA had the Section 8 application process been completed with a lease and HAP contract executed in 2003.

First, as I have ruled with respect to Council’s federal law and negligence claims, the BHA did not breach any duty it owed to Council to assist her and process her Section 8 lease approval application in a timely manner.

Second, assuming arguendo that the BHA had breached a legal duty owed to Council, the BHA owed no legal duty to Blakely given that Blakely never executed a HAP contract but nonetheless allowed Council to occupy the Quincy Street premises. Blakely testified that she was familiar with the Section 8 program (having rented apartments to other Section 8 eligible tenants), and she knew that under the Section 8 program regulations and rules the BHA was not legally or contractually responsible to pay a landlord the subsidized portion of the contract rent until after Section 8 HAP contract and lease were executed. Despite her knowledge of the Section 8 program requirements, Blakely imprudently allowed Council to move into Quincy Street apartment before Council had completed the Section 8 lease approval process. She did so

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at her own risk. Having made one error of judgment, Blakely proceeded to compound that error. She never made any effort to contact the BHA to ascertain the status of Council’s Section 8 lease approval application between the last week in November 2003 (when Council moved into the apartment) and early March 2004 (when she learned that Council had never contacted the BHA). Instead, Blakely accepted Council’s false representations that she had been in contact with the BHA Section 8 leasing officer. Had Blakely made her own inquiry to the BHA in November or December 2003, she would have learned that Council had not contacted the BHA upon her return to Boston in November 2003. Blakely did not contact the BHA until early March 2004. It was then she learned for the first time what she could have learned in December 2003 – that Council had never contacted the BHA after she moved into the Quincy Street apartment, and that because there was no executed HAP contract and Section 8 lease, the BHA would not make subsidy payments to Blakely towards any portion of Council’s rent.

I rule that Blakely has not established a claim for negligence against the BHA. Blakely has failed to establish that the BHA owed her or breached any legal duty.

Council’s Counterclaims against Blakely. Council did not present any evidence pertaining to her implied warranty of

habitability, quiet enjoyment, retaliation or Chapter 93A counterclaims against Blakely. Accordingly, I rule that Council’s counterclaims are deemed waived.

ORDER FOR JUDGMENT

Based upon all the credible testimony and evidence presented at trial in light of the governing law, it is ORDERED that:

1. Judgment enters dismissing Plaintiff Pieta Blakely’s claim for possession against Defendant Tamara Council as moot.

2. Judgment enters for Plaintiff Pieta Blakely against Defendant Tamara Council on Count 1 (damages for use and occupancy) of the amended complaint for damages in the amount of $10,710.00.

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3. Judgment enters for Plaintiff/Defendant-in-Counterclaim Pieta Blakely on Defendant/Plaintiff-in-Counterclaim Tamara Council’s implied warranty of habitability, quiet enjoyment, retaliation and Chapter 93A counterclaims.

4. Judgment enters for Third-Party Defendant Boston Housing Authority on Count 2 (Negligence) of Third-Party Plaintiff Pieta Blakely’s amended complaint.

5. Judgment enters for Third-Party Defendant Boston Housing Authority and against Third-Party Plaintiff Tamara Council on Count I (Wrongful Termination of Section 8 Voucher) and Count II (Wrongful Denial to Enter into Lease) of the Third-Party Complaint.

6. Pursuant to G.L. c. 231A, the Court declares that that Third-Party Defendant Boston Housing Authority acted lawfully in accordance with federal law, 42 U.S.C. s. 1437(f) and the HUD Section 8 program regulations promulgated there under (24 C.F.R. s.s. 982.314 (c) and 982.355 (a) and (b)) when in March 2004 the BHA (1) denied Third-Party Plaintiff Tamara Council’s demand that it approve a Section 8 lease and execute a HAP contract for the Quincy Street apartment retroactive to December 1, 2003, and (2) denied Third-Party Plaintiff Tamara Council’s demand that it issue her a new Section 8 voucher. Prior to March 2004, as a result of her own neglect and inaction, Third-Party Plaintiff Tamara Council abandoned her November 2003 request for Section 8 lease approval application with respect to the Quincy Street apartment, and for that reason the Section 8 Voucher issued to her by Third-Party Defendant Boston Housing Authority expired.

7. The preliminary injunction issued on August 11, 2004, be and hereby is vacated.

cc: Kevin V. Daley, Esq.

Damon M. Seligson, Esq.

Wilbur E. Commodore, Esq.

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End Of Decision

HOUSING COURT

FELIX OSAGIE VS. YVERN JONES

Docket # CIVIL ACTION NO. 06H84CV000205

Parties: FELIX OSAGIE VS. YVERN JONES

Judge: /s/ JEFFREY M. WINIK, FIRST JUSTICE

Date: April 3, 2008

ORDER

Order for Award of Attorney’s Fees and Costs; and

Order for Entry of Final Judgment

Attorney’s Fees and Costs

This matter is before the Court on the defendant’s (tenant’s) post-trial Motion for Attorney’s Fees and Costs. The plaintiff (“landlord”) opposes the motion.

After a two-day jury waived trial, the tenant prevailed on her conditions-based counterclaims for breach of implied warranty of habitability (Count I), interference with quiet enjoyment under G.L. c. 186, s. 14 (Count II) and violation of Chapter 93A (Count VIII). However, with respect to these conditions-based claims the tenant prevailed only with respect to one condition of the many alleged – a persistent bathtub drain defect that went uncorrected for four months.[1] The tenant proved actual damages of only $961.65 (diminished value of leasehold). The tenant was not entitled to recover cumulative damages arising from the same facts. Since statutory damages were greater than the actual damages, the Court awarded the tenant statutory damages of $4,080.00 (three month’s rent) under G.L. c. 186, s. 14. Further, the Court awarded the tenant nominal damages of $25.00 under G.L. c. 93A on her security deposit

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[1] The Court rejected the tenant’s allegations of rodent and cockroach infestation, a toilet leak, missing bathroom tiles, bedroom, bathroom and dining room ceiling leaks, kitchen sink leak and other minor conditions. A significant amount of trial time was spent on these issues.

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interest claim. The tenant did not prevail on her counterclaims for negligence (Count III), retaliation (Count IV), emotional distress (Count V) and security deposit statutory claim (Count VII).

As the prevailing party on her statutory quiet enjoyment and consumer protection counterclaims, the tenant is entitled to recover reasonable attorney’s fees and costs.

The Court should normally use the “lodestar” method to calculate the amount of a statutory award of attorney’s fees. Under the “lodestar” method, “[a] fair market rate for time reasonably spent in litigating a case is the basic measure of a reasonable

attorney’s fee under State law as well as Federal law.” Fontaine v. Ebtec Corp., 415 Mass. 309, 325-26 (1993). However, the actual amount of the attorney’s fee is largely discretionary with the trial court judge. Linthicum v. Archambault, 379 Mass. at 388. An evidentiary hearing is not required. Heller v. Silverbranch Const. Corp., 376 Mass. 621, 630-631 (1978). In determining an award of attorney’s fees, the Court must consider “the nature of the case and the issues presented, the time and labor required, the amount of the damages involved, the result obtained, the experience, reputation and ability of the attorney, the usual price charged for similar services by other attorneys in the same area, and the amount of awards in similar cases.” Linthicum v. Archambault, supra. at 381. 388-9. See Heller v. Silverbranch Const. Corp., supra. at 629 (“the standard of reasonableness depends not on what the attorney usually charges but, rather, on what his services were objectively worth . . . Absent specific direction from the Legislature, the crucial factors in making such a determination are: (1) how long the trial lasted, (2) the difficulty of the legal and factual issues involved, and (3) the degree of competence demonstrated by the attorney”). The prevailing party is entitled to recover fees and costs for the statutory claims on which she was successful. “As a rule, where a single chain of events gives rise to both a common law and a [statutory] claim, apportionment of legal effort between the two claims is not necessary . . .” Hanover Insurance Company v. Sutton, 46 Mass. App. Ct. 153, 176-77 (1999), quoting from Industrial Gen. Corp. v. Sequsia Pac. Sys. Corp., 849 F. supp. 820, 826 (D. Mass. 1994).

I have reviewed the affidavit and time records submitted by the tenant’s attorney, Maureen E. McDonagh. Attorney McDonagh represented her client with skill and professionalism.

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I find that the time Attorney McDonagh spent on pre-trial investigation, discovery, trial preparation and trial on all of her client’s counterclaims – 42.9 hours – provides a reasonable starting point for calculating the statutory attorney’s fee. Based upon Attorney McDonagh’s experience (but also taking into account the relative lack of complexity of the counterclaims and my knowledge of the hourly rates charged by attorneys who practice in the Housing Court for cases of similar complexity), I find that Attorney McDonagh is entitled to compensation at her requested reasonable hourly rate of $200.00.

The tenant may not recover attorney’s fees for unrelated claims or for claims or legal theories upon which she did not prevail. Attorney McDonagh spent a significant amount of her time on the preparation and presentation of counterclaims upon which her client did not prevail (negligence, emotional distress, discrimination and statutory security deposit claim). I must also take into account the time Attorney McDonagh used in an effort to establish the existence of conditions that the Court determined either did not exist or were minor. I conclude that no more than thirty-five (35%) percent of Attorney McDonagh’s time (15 hours) was reasonably attributable to the statutory counterclaims upon which her client prevailed.

After considering all of the factors set forth above, I award

the tenant reasonable attorneys’ fees in the amount of $3,000.00. [2] I shall also award the tenant reasonable expenses of $811.00 ($731.00 in constable fees and $80.00 in parking fees).

The award of attorney’s fees and costs are without interest. See, Patry v. Liberty Mobilehome Sales, Inc., 394 Mass. 270, 272 (1985).

ORDER FOR JUDGMENT

Based upon all the credible testimony and evidence presented at trial in light of the governing law, it is ORDERED that:

1. Judgment enter for the defendant/plaintiff-in-counterclaim on Count I (breach of implied warranty of habitability), Count II (breach of covenant of quiet enjoyment) and Count VIII (violation of consumer protection act) of her amended counterclaims, with damages awarded under G.L. c. 186, s. 14 in the amount of $4,080.00 plus $3,000.00 for statutory attorney’s fees and $811.00 for costs.

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[2] 15 hrs x $200.00 = $3,000.00.

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2. Judgment enters for the defendant/plaintiff-in-counterclaim on Count VIII (violation of G.L. c. 93A – security deposit interest) of her amended counterclaims in the amount of $25.00.

3. Judgment enters for the plaintiff on Count III (negligence), Count IV (retaliation), Count V (emotional distress), Count VI (discrimination) and Count VII (security deposit statute) of the defendant/plaintiff-in-counterclaim’s amended complaint.

4. Final judgment shall enter on all claims after statutory attorney’s fees, costs and expenses are assessed.

cc: Jack P. Milgram, Esq.

Maureen E. McDonagh, Esq.

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End Of Decision

HOUSING COURT

FEDERAL NATIONAL MORTGAGE ASSOCIATION, Plaintiff VS. CONSTANCE DIAS, Defendant

Docket # NO. 08H84SP01192

Parties: FEDERAL NATIONAL MORTGAGE ASSOCIATION, Plaintiff VS. CONSTANCE DIAS, Defendant

Judge: /s/JEFFREY M. WINIK

First Justice

Date: June 3, 2008

FINDINGS OF FACT, RULINGS OF LAW AND ORDER OF JUDGMENT

This is a summary process action in which the plaintiff is seeking to recover possession of the premises from the defendant.

Based upon all the credible testimony and evidence presented at trial, and the reasonable inferences drawn therefrom, the Court finds as follows:

Until September 24, 2007, Love Otucchere was the owner of the residential premises at 11 Leston Street, Unit 3, in the Mattapan section of Boston (the “premises”). Otucchere defaulted on her mortgage obligations, and on September 24, 2007, as the result of a foreclosure sale, the plaintiff, Federal National Mortgage Association, acquired title to the premises.

On or about December 1, 2007, defendant Constance Dias moved into the premises. According to the defendant, in mid-November 2007, she rented the premises from the former owner, Love Otucchere. The defendant gave the former owner $1,900.00 (purportedly for first and last month’s rent). I find that the plaintiff never authorized Otucchere to rent the premises to anyone or to act as its agent for any reason. On January 8, 2008, after learning that the defendant had moved into the premises, the plaintiff served her with legally sufficient notice to vacate the premises.

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I find that the plaintiff never entered into a tenancy with the defendant or otherwise authorized her to occupy the premises at anytime after September 24, 2007. I find that at the time the defendant moved into the premises she was unaware that Otucchere had lost the property upon foreclosure. Nonetheless, I rule that the defendant is a trespasser as against the plaintiff without any lawful right to remain in possession of the premises.

The plaintiff has established its case to recover possession

of the premises from the defendant. Execution shall issue on July 1, 2008.

The defendant was never a tenant or lawful occupant of the premises. Therefore, the plaintiff was not obligated to act as her landlord or to maintain the premises for her benefit. Accordingly, the defendant may not assert counterclaims against the plaintiff for breach of implied warranty of habitability, G.L. c. 93A or G.L. c. 186, s. 18.

ORDER FOR JUDGMENT

Based upon all the credible testimony and evidence presented at trial in light of the governing law, it is ORDERED that:

1. Judgment enters for the plaintiff for possession.

2. Execution for possession shall issue on July 1, 2008.

3. Judgment enters for the plaintiff dismissing the defendant’s counterclaims

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End Of Decision

HOUSING COURT

JOSEPH ONUJIOGWU VS. ABDIRISHID ABDULAHI, et al.

BOSTON DIVISION

Docket # CIVIL ACTION NO. 04H84CV000205

Parties: JOSEPH ONUJIOGWU VS. ABDIRISHID ABDULAHI, et al.

Judge: /s/JEFFREY M. WINIK

FIRST JUSTICE

Date: May 28, 2008

POST-JUDGMENT ORDER

This matter came before the Court on the Plaintiff’s Motion for New Trial Pursuant to M.R.C.P. 60(b)(1).

The claims and counterclaims in these consolidated civil actions involve six residential apartments at 150 Walnut Avenue, in Boston. The plaintiff (“landlord”) brought rent claims against all the defendants (“tenants”). The tenants from each apartment asserted separate counterclaims against the landlord for breach of the implied warranty of habitability, interference with quiet enjoyment (G.L. c. 186, s. 14), retaliation (G.L. c. 186, s. 18) and violation of security deposit statute (G.L. c. 186, s. 15B). These claims and counterclaims were consolidated for trial.[1]

After a four-day jury trial, a jury returned six separate special verdicts with respect to each apartment. The jury found in favor of each tenant on their breach of implied warranty, interference with quiet enjoyment and retaliation counterclaims. The jury found in favor of each tenant on the landlord’s rent claim. The jury found in favor of the landlord on the tenants’ security deposit counterclaims. In answer to Special Verdict

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[1] The remaining counterclaims were settled, dismissed or waived prior to trial: claims for rent overcharge, declaratory judgment, and property damage.

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Question 1 (For any period between November 1, 2002 and July 31, 2003, do the Tenants owe rent to the Landlord for the use of the Premises), the jury answered “No.”

In an order dated December 21, 2007, the court awarded the tenants statutory attorney’s fees and ordered that judgment enter upon the verdict of the jury.[2] Accordingly, pursuant to M.R.Civ.P., Rule 58, final judgment entered in favor of each tenant on the landlord’s rent claims on December 21, 2007.

The landlord did not file any post judgment motions for a new trial or to alter or amend the judgment pursuant to M.R.Civ.P., Rule 59 (a) or (e) within the time period set forth in the rule.

Mass.R.Civ.P. 60 (b) (1) provides that the court may relieve a party from a final judgment for “mistake, inadvertence, surprise, or excusable neglect.” The landlord argues that he should be granted a new trial claiming that the jury erred when it determined that the tenants did not owe rent to the landlord for the period from November 1, 2002 and July 31, 2003. The landlord did not include with his motion any affidavits or trial transcripts that address this claimed factual error or mistake. He argues that this judge (who also presided over the trial) ought to know with certainty that the tenants did not pay rent from November 1, 2002 and July 31, 2003, because in July 2007 the court ordered the tenants to post prospective monthly rent payments with the court. I disagree. The best that can be said (based upon my recollection without the benefit of a transcript) is that at the time of the rent escrow hearing, the parties disagreed as to whether some or all of the rent had been paid. The fact that I ordered the tenants to escrow prospective rent payments does not mean that I determined that any rent for a prior period was due or owing. I did not make such a determination. With respect to the trial testimony (again based upon my recollection without the benefit of a transcript), the best that could be said is that there was conflicting testimony

regarding whether any of

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The jury awarded damages on the statutory retaliation counterclaims to each tenant as follows: Apt. IL – $2,550.00; Apt. 2R – $2,550.00; Apt. 2L – $3,900.00; Apt. 2R – $3,150.00; Apt. 3L – $3,600.00; Apt. 3R – $3,150.00.

The damages awarded to the six tenant households on all claims totals $44,100.00 plus $28,835.00 for attorneys fees and $2,408.63 for costs.

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the tenants paid rent from November 1, 2002 and July 31, 2003. The jury, after considering all of the testimony and evidence, determined that the tenants did not owe any rent for that period. The plaintiff has not met his burden of showing that a reasonable jury could not have reached this conclusion based upon the evidence presented at trial and the reasonable inferences they could have drawn from that evidence.

For these reasons, the Plaintiff’s Motion for New Trial Pursuant to M.R.C.P. 60(b)(1) is DENIED.[3]

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[3] The plaintiff makes reference in his memorandum to the provisions of Mass.R.Civ.P. 60 (b) (6). Under Rule 60 (b) (6) the Court may relieve a party from a final judgment where there is good reason to justify that relief be granted. See, Eastern Say. Bank v. City of Salem, 33 Mass. App. Ct. 140, rev. denied, 413 Mass. 1106 (1992). “In ruling on a motion under rule 60 (b) (6), the `judge may consider whether the moving party has a meritorious claim or defense, . . . whether extraordinary circumstances warrant relief, . . . and `whether the substantial rights of the parties in the matter in controversy’ will be affected by granting the motion.” Adoption of Hugh, 35 Mass. App. Ct. 346, 351, rev. denied, 416 Mass. 1107 (1993), citing to Parrell v. Keenan, 389 Mass. 809, 815 (1985). The plaintiff has made no such showing.

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End Of Decision

HOUSING COURT

DURAN ABSHIR and FADUMO ABDI, individually and as parents of their minor children HODMAN ABSHIR and SAREDA ABSHIR VS. GABRIEL RIVERA and ALBA PEREZ a/k/a ALBA CORONA

BOSTON DIVISION

Docket # CIVIL ACTION NO. 06H84CV000020

Parties: DURAN ABSHIR and FADUMO ABDI, individually and as parents of their minor children HODMAN ABSHIR and SAREDA ABSHIR VS. GABRIEL RIVERA and ALBA PEREZ a/k/a ALBA CORONA

Judge: /s/JEFFREY M. WINIK

FIRST JUSTICE

Date: May 20, 2008

AMENDED FINDINGS OF FACT, RULINGS OF LAW AND ORDER FOR JUDGMENT

Based upon all the credible testimony and evidence presented at trial (and at the May 7, 2008 hearing at which additional evidence was presented), and the reasonable inferences drawn therefrom, the Court finds and rules as follows:

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[1] The plaintiffs have asserted the negligence claim individually and as parents/next friends of their two minor children.

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Findings of Fact

The residential property at 360 Meridian Street, in the East Boston section of Boston, contains nine condominium units. At all times relevant to the claims in this action, defendant Gabriel Rivera has owned and managed the condominium units.[2] Defendant Alba C. Perez-Corona is Rivera’s wife. During this same period, Perez-Corona acted as Rivera’s agent in the management of the condominium units and in her dealings with the residential tenants. Rivera renovated the condominium units in 1987. He installed new plumbing, electrical service, floors, ceilings, walls, windows and doors.

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[2] Each condominium is held in a separate trust. Rivera is the sole trustee of each trust. Apartment 1 is held by the 360 Meridian Street Realty Trust.

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evidence, I find that as of September 2004, the plaintiffs had paid all rent due through July 2004.[3] I find that they paid the rent due in full for every month that they occupied the premises.

The chronic sewage backups and persistent odors were defective conditions that diminished the value of the premises and interfered with the plaintiffs’ quiet use and enjoyment of the premises.

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[3] After they vacated the premises, the plaintiffs paid Rivera $500.00 in August 2004 and $500.00 in September 2004.

[4] Rivera testified that each time he inspected the drain in response to a complaint from the plaintiffs, he found tampons, sanitary towels and plastic bags. He said he told the plaintiffs not to dispose of these items in the toilet. The plaintiffs denied that they placed these items in their toilet. I credit the plaintiffs’ testimony. There is insufficient evidence to support Rivera’s claim that the drain clogged because the defendants placed sanitary napkins and other materials in the toilet.

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January 2003 Flood. On the evening of January 23, 2003, a frozen pipe in the building wall cracked. Water flowed from the cracked pipe into the plaintiffs’ apartment causing a closet ceiling to collapse. Fire fighters (who came in response to a call for assistance) shut off the main water valve to the building. Rivera responded to the plaintiffs’ call that same evening. He offered to put the plaintiffs up in a hotel. They declined the offer. Rivera had a plumber fix the pipe and restore water service. The water was off for two or three days. Rivera fixed the closet

ceiling. The lack of running water diminished the value of the premises and interfered with the plaintiffs’ quiet use and enjoyment of the premises.

January 2004 Flood. During a severe cold spell, a second pipe cracked in January 2004. The pipe was located in the hallway of Apartment 3, causing serious damage to that unit.[5] Water from the cracked pipe leaked through the plaintiffs’ living room and kitchen ceilings. Rivera responded to a call from the first floor tenant. He called a plumber who fixed the leak that same day. Rivera had one of his workers place plastic bags over the holes in the plaintiffs’ ceiling. The ceiling remained in that condition until March 2004 at which time Rivera removed the plastic bags and placed plywood over the ceiling openings. One month later, he finally completed the ceiling repairs by installing sheetrock. The defective ceiling diminished the value of the premises. The existence of the defective ceilings and Rivera’s failure to take prompt and appropriate action to make the necessary repairs interfered with the plaintiffs’ quiet use and enjoyment of the premises.[6]

The plaintiffs claim that the presence of mold and mildew in their apartment exacerbated existing illnesses of Fadumo Abdi and her children or caused them to suffer other physical ailments including colds and bronchial illnesses. Fadumo Abdi was diagnosed with perennial

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[5] Apartment 3 remained empty for the remainder of that winter.

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allergic rhinitis (and possible dust related allergies). Hodman Abshir was diagnosed with allergic rhinitis (showing an adverse reaction to the following molds: cladosporium/hormodendrum and epicoccum).[7] Sareda Abshir was diagnosed with asthma. She was not found to have any allergies.

caused or exacerbated the medical conditions. For example, Dr. Hamilos, in his report dated December 22, 2003, states only with respect to Fadumo Abdi that “[u]nfortunately, the apartment sounds like it is far from ideal because of the presence of moisture and molds.” With respect to Sareda Abshir, Dr. Silva, in a report dated December 17, 2003, states only that the patient has “no known allergies” and that the parents “has had house inspection and thinks may be environmental. Doubt asthma given complete lack of reproducible chronic cough or wheezing over the last 2 years.” With respect to Hodman Abshir, Dr. Silva, in a report dated December 17, 2003, states that the patient “has possible allergies” and again only that the parent “has had house inspection and thinks may be environmental. Doubts asthma.” Although an inspector from the City of Boston Inspectional Services Department (“ISD”) visually identified mildew in the apartment (March 3, 2004 inspection report), the apartment was never tested for the presence of any specific types of mold. The plaintiffs testified that the health of Fadumo Abdi and her children improved when they moved to a new apartment in August 2004. The evidence suggests otherwise, at least with respect to Fadumo Abdi. In his report dated April 8, 2005, nine months after the plaintiffs vacated Apartment 1, Dr. Hamilos reports “Faduma is still having perennial allergic rhinitis symptoms.” However, even if the children had fewer respiratory symptoms after they left Apartment 1, the reduction in post-occupancy symptoms does not constitute evidence sufficient to establish that mold or mildew caused or substantially contributed to their medical conditions while they lived in Apartment 1.

No Emotional Distress. The defective conditions in Apartment 1 caused the plaintiffs significant discomfort and interfered with their quiet use and enjoyment of the premises.

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[7] Hodman’s test screen did not register an adverse reaction to the following molds: alternaria, aspergillus, helminthosporium and penicillium.

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However, there is no evidence that the plaintiffs (or their children) suffered serious emotional distress as a result of the defendants’ failure to correct those conditions in a timely manner. There is no evidence that a doctor, psychologist, therapist or social worker diagnosed or treated any family member for emotional distress. There is no other evidence sufficient to establish that any family member suffered depression, anxiety, loss of sleep, loss of appetite or any other manifestation of emotional harm resulting from the defendants’ failure to correct those conditions in a timely manner.

Remaining Conditions. The plaintiffs testified that with the exception of the mildew violations, the conditions listed on the

March 3, 2004 ISD report (Exhibit 6) were minor. Rivera neither knew nor should have known of those conditions until after he received the ISD report. However, he did not correct the conditions at any time while the plaintiffs remained in possession of Apartment 1. I find that those conditions, though minor, collectively diminished the value of the premises.

Rulings of Law

1. Breach of Implied Warranty of Habitability (Count 1). There exists with respect to every residential tenancy an implied warranty of habitability that the premises are fit for human habitation. A landlord is in breach of this warranty where there exist defects that may materially affect the health or safety of occupants. Boston Housing Authority v. Hemingway, 363 Mass. 184, 199 (1973). A tenant is not entitled to receive damages for minor defects. Not every defect gives rise to a diminution in rental value. Isolated violations do not necessarily constitute a breach of the warranty. McKenna v. Begin, 5 Mass. App. Ct. 304 (1977). A breach of the implied warranty of habitability occurs from the point in time when a landlord had notice or should have known of a substantial defect or substantial Sanitary Code violation in the apartment. The breach continues until the defect or violation is remedied. Berman & Sons, Inc. v. Jefferson, 379 Mass. 196 (1979) [landlord in breach of warranty from first notice of

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substantial Sanitary Code violations that recurred over a period of time despite the landlord’s efforts to repair]. The measure of damages for breach of the implied warranty of habitability is the difference between the fair rental value of the premises free of defects and the fair rental value of the premises during the period that the defective conditions existed. Boston Housing Authority v. Hemingway, supra; Haddad v Gonzalez, 410 Mass. 855, 872 (1991).