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Before this Court are the cross motions for
summary judgment of the third party Plaintiff, Kiewit Construction Company
(“Kiewit”), and third party defendant, ThermoCor Kimmins, Inc (“Kimmons”).
Kiewit asks this Court to enforce a contract between the parties by
requiring Kimmons to pay the costs of Kiewit’s defense in the underlying
negligence action. Kiewit also seeks attorney’s fees pursuant to G.L. 1956
§ 9-1-45. Kimmons opposes Kiewit’s motion and asks this Court to dismiss
the third party complaint. Jurisdiction is pursuant to Superior Court Rule
of Civil Procedure 56 (c).
Motion by Plaintiff Infinite Group, Inc. pursuant to Rhode Island Rules of
Civil Procedure Rule 56 for summary judgment on the counterclaims. After
reviewing all supporting documents, the Superior Court justice granted
summary judgment on the counterclaim for breach of contract because the
Plaintiff was not a party to the contract. On the counterclaim for
intentional interference with prospective contractual relations, disputed
issues of material fact precluded summary judgment.
Motion by
Plaintiff Keystone Elevator for attorney’s fees incurred for an appeal of a
decision of this Court by Defendants. The
Superior Court justice reviewed the authority to award attorney’s fees under
the mechanic’s lien statute, acknowledged that the ability to award
attorney’s fees under § 34-28-19 was in her discretion, and determined that
the Plaintiff’s request was reasonable.
The trial justice rejected all of Defendants’ arguments on this
motion, which were repeated from its argument before the Supreme Court.
The trial justice ordered Defendants to pay Plaintiff $13,755 in
attorney’s fees pursuant to § 34-28-19.
Richard
Ciccone and Elsie Ciccone (Plaintiffs) sued Fleet National Bank (Fleet) and
Rhode Island Hospital Trust (Hospital Trust) (collectively, Defendants)
relative to a trust attorney’s misuse of certain trust funds. Before
this Court was Fleet’s motion for summary judgment as to the following
claims in Plaintiff’s Amended Verified Complaint: Count X (negligence
of Fleet), Count XI (conversion of Hospital Trust), and Count XII (negligence
of Hospital Trust). The Court denied Fleet’s motion with regard to
Count X, as based on the economic loss doctrine, and granted Fleet’s motion,
grounded in G.L. 1956 § 6A-3-419(3), as to Count XI. Furthermore, the
Court held that § 6A-3-419 displaced Plaintiffs’ negligence claim and,
accordingly, granted Fleet’s motion as to Count XII. Additionally, the
Court denied Fleet’s motion as based on the ratification by suit doctrine,
and having found that an issue of material fact existed, denied Fleet’s
motion as founded upon ratification of a Fleet cashier’s check.
John Merolla
V. City of Providence No. 03-5440 (August 11, 2004)
RUBINE, J. This
matter comes before the Court on cross motions for summary judgment.
At issue is the correct interpretation of the provisions of G.L. 1956
§ 16-16-24 insofar as it pertains to the post-retirement employment of
teachers in coaching positions. The Plaintiff has filed a complaint for
declaratory and injunctive relief in connection with a decision made by the
Employees’ Retirement Board of Rhode Island (hereinafter “the Retirement
Board”) that the aforesaid statute, as amended, bars the Plaintiff, a
retired teacher, from continuing to fill the job as Head Football Coach at Mt.
Pleasant High School in
Providence, Rhode Island. In
reliance on the Retirement Board’s interpretation of § 16-16-24, the
Providence School Board (hereinafter “the School Board”) dismissed
Plaintiff from his coaching position
George E. Wall and Irene C. Wall v. Elizabeth
H. Minifie, Peter J. O'Connell, Brian T. McKeon, Rebecca McSweeney, Michael
martin in their capacity a Members of the Zoning Board of Review of the City
of Newport, No. 03-0130 (August 5, 2004)
Cecil
Sartor, Didier Sartor, William P. Kyros, Arthur Landy, Eva Landy, John C.
Whistler and Mary Lovejoy v. Town of Barrington, No. 03-3985 (August 4,
2004)
The Court
denied Plaintiffs’ request for declaratory and injunctive relief concerning
the scope of use permitted on a particular public right-of-way.
Plaintiffs maintained that the public’s right to use the right-of-way
is limited to foot travel. The
Court disagreed, finding automobile access and parking not inconsistent with
the grantor’s intent in dedicating the land to public use.
Town
of Johnson v. David J. Santilli, Robert A. Lafazia, Peter Voccia, Jr.,
Geraldine Loffredo, Robin Carlone, in their capacity As members of the
Johnston School Committee, Margaret Iacovelli in her capacity as
Superintendent of Schools, and the Law Offices of Stephen M. Robinson,
No,. 03-0219 (August 2, 2004)
Tammy
I. Smith v. J.T. Investments, Edward J. Smith and Harold Smith, No.
03-4443 (July 27, 2004)
The
Providence Journal Company, Zachary R. Milder and Paul Parker v. Town of West
Warwick, Wolfgand Bauer, in his cpacity as the Town Manager, Charles Hall in
his capacity as the Fire Chief of the Town of West Warwick, and Peter
Brousseau, in his capacity as the Chief of Police of West Warwick Irving J.
Owens, in his capacity as State Fire Marshall, Elizabeth Laposata, in her
capacity as State Medical Examiner, and Patrick Lynch, in his capacity as
Attorney General for the State of Rhode Island, No. 03-207; The
Providence Journal Co. and Paul Parker v. Donald L. Carcieri, in his capacity
as Governor of the State of Rhode Island, No. 03-2697 (July 22, 2004)
John
P. Marley, in his capacity as the surviving spouse and beneficiary of the
Estate of Jennifer J. Gnys v. Margaret S. Wool, Ph.D., Marianne Goldsmith,
M.D., and Rhode Island Hospital, No. 00-3829 (July 23, 2004)
Rhode
Island Public Telecommunications Authority v. Glenn F. Russell, et al, No.
93-7116 (July 23, 2004)
David
C. Tocco v. Kenneth Richardson, in his capacity as Finance Director of the
Town of Johnston; and Louis A. Perrotta, in his capacity as Mayor of the Town
of Johnston, No. 96-1004 (July 23, 2004)
Elana
Marchakov and Arkadi Marchakov, Individually and as Parents, Natural
Guardians, and Next-of-Friends to their minor child, Daniel Marchakov v.
Donald Champagne and Diane Champagen, No. 00-1861 (July 23, 2004)
Monarch
Builders, Inc., a Massachusetts Corporation v. Roman Natyniak and Marsle
Natyniak, Their Heirs-at-law, Devisees, Successors and/or Assigns, Unknown and
Unascertained, No. 99-5681; Monarch Builders, Inc. v. Marsle Natyniak,
d/k/a Marcelle Natyniak, et al, No. 00-0036 (July 22, 2004)
John
Lace v. Town of Burrillville Zoning Board of Review, by and through its
members, Raymond Cloutier (Chair), Michele Carboni, George Kelling, Ed
Hockwater, Ken Johnson, John Patriarca, Robert Mellion, William E. Gonyea
(Council Liason), No. 02-6554 (July 22, 2004)
Triton
Realty Limited Partnership and Triton Realty, Inc. v. Essex Mutual Insurance
Company, Merchants Insurance Company of New Hampshire, Inc., Merchantsj
Insurance Group, National Fire Insurance Company of Hartford, CNA Insurance
Company, Derco, LLC, Jeffrey Derderian and Michael Derderian, No. 03-0319
(July 21, 2004)
Judith
Grant, Carol Lincoln, Janice Leffingwell and Joyce Hendricks v. Robert C.
Nyman, Kenneth J. Nyman, Keith Johnson, Robert B. Gates and Fleet National
Bank f/k/a Rhode Island Hospital Trust National Bank, No. 03-2893 (July
19, 2004)
The Court
granted Defendants’ Motion to Strike Jury Demand.
The Court held that Plaintiffs’ two counts of breach of fiduciary
duty and one count for equitable relief are equitable in nature and thus not
triable by a jury.
Fredrick
Hone, Jr. v. Exeter Zoning Board, No. 03-410 (July 14, 2004)
Karen
E. Biernacki v. Enrique Pinzon and Deborah Pinzon, No. 99-5482 (July 12,
2004)
Plaintiff
sought an injunction restraining Defendants from entering her property and
from interfering with her use of the property.
Defendants counterclaimed, seeking to be adjudged the owners in fee
simple of the real estate. The
Court, sitting without a jury, decided in favor of the Defendants and found
that Defendants’ use of the land was sufficiently actual, open, notorious,
hostile, under claim of right, continuous, and exclusive for more than the
requisite ten years to satisfy the elements for adverse possession.
Elana
Marchakov and Arkadi Marchakov, Individually and as Parents, Natural
Guardians, and Next-of-Friends to their minor child, Daniel Marchakov v.
Donald Champagne and Diane Champagne, No. 00-1861 (July 8, 2004)
The Court
denied Defendants’ motion for summary judgment, which sought to exclude
references to the Rhode Island Housing Maintenance and Occupancy Code, the
Rhode Island Residential Landlord and Tenant Act, the Lead Poisoning
Prevention Act, and the Rules and Regulations for Lead Poisoning Prevention.
The Court permitted the use of these statutes as evidence of negligence which
resulted in the lead poisoning of a minor child.
Robert
Andreozzi and Cathy Andreozzi, Individually and as Natural Parents, Next
Friends, and Guardians of Tori Andreozzi, Minor v. Marilyn C. Brownell,
MCB Productions, LTD. and BMW Financial Services, N.A., LLC, No. 03-267
(July 8, 2004)
BMW Financial
Services, N.A., LLC. (Defendant), motor vehicle lessor, filed a Motion for
Summary Judgment against Plaintiffs Robert and Cathy Andreozzi and their
daughter, Tori Andreozzi. BMW argued that R.I.G.L. 1956 §§ 31-33-6 and
31-34-4 release the lessor/owner of a vehicle from liability if the
lessee/driver provides proof of financial responsibility. The Court noted that
when a general statute conflicts with a more specific statute, the latter
shall be considered an exception to the general rule, in accordance with
R.I.G.L. §43-3-26. Thus, while § 31-33-6 applies to owners of vehicles in
general, § 31-34-4 is specifically written to address lessor/lessee
liability. Section 31-34-4 imposes joint and several liability on any owner of
a for hire vehicle subject to Rhode Island financial responsibility laws for
damages caused by the negligence of an authorized driver. Thus Defendant’s
Motion for Summary Judgment was denied.
State
of Rhode Island, by and through Patrick Lynch, Attorney General v. Lead
Industries Association, Inc., et al, No. 99-5226 (July 2, 2004)
State
of Rhode Island v. Jonathan Oster, No. 02-3047 (July 2, 2004)
Motion
to suppress for violations of sealing and storage provisions of state and
federal wiretap statutes. Following
an evidentiary hearing, the Superior Court Justice finds that the State
violated the sealing and storage provisions of the state and federal wiretap
statutes, R.I. Gen. Laws § 12-5.1-8(a) and 18 U.S.C. § 2518(8)(a).
Because the State failed to provide a satisfactory explanation for the
violations, the Court grants, in part, defendant Oster’s motion to suppress
wiretap evidence.
Edson
Toro v. State of Rhode Island, No. 97-3049 (June 30, 2004)
Anthony
P. Marandola v. Marandola Mechanical, Inc., No. 03-5949 (June 29, 2004)
Petition for
Allowance and Payment of the Amended Secured Claim of US Filter Process Water
Systems, Inc. (US Filter). The
Court disallowed the Petition, finding that US Filter failed to meet its
burden of proving that either G.L. 1956 § 6A-9-109(d)(6) or § 6A-9-309(2)
applied to a joint checking agreement involving the general contractor, the
subcontractor, and US Filter. Furthermore,
the Court denied US Filter relief pursuant to an unjust enrichment or
constructive trust theory.
Barbara
Alpert v. Middletown Zonong Board of Review and William and Geraldine Weir,
No. 03-0436 (June 28, 2004)
Abutting
landowner appealed the grant of a dimensional variance to landowner to build a
nonconforming structure, which structure was larger than an existing,
dilapidated home. The landowner received permission to demolish the
existing home and sought to build a new one. HELD: the decision of the
zoning board is reversed. The Board failed to include specific findings
of fact that the relief requested was the least relief necessary to enjoy the
permitted use applied for. The Board’s failure could not operate to
entitle the applicant to a second opportunity to present evidence where the
record on appeal demonstrated that the applicant had failed to present
evidence that the relief requested was the least relief necessary.
Steven
Foote, Dana Foote, Tamara Foote, and March Hill Corporation v. Fleet Financial
Group, Fleet Bank - NH, Industrial Investment Corporation, Industrial
investment Corporation - NH, and Michael C. Demers, No. 99-6196 (June 25,
2004)
Joseph
G. Sharman and William Schmiedekneckt v. S & S Realty Associates, No.
03-6681 (June 24, 2004)
NI,
LTD. v. Charles Y. Duncan, Elizabeth Minifie, Peter O'Connell, Brian McKeon,
and Michael Martin, in their capacity as members of the Zoning Board of Review
of the City of Newport, and The Preservation Society of Newport County,
No. 02-0573 (June 23, 2004)
Peter
F. Vargas and Jadranka Vargas, Individually and as Natural Parent, and Next of
Friends of Richard A. Vargas, a minor v. Robert A. Carrellas, M.D.,
Charles L. Steingel, M.D. Newport Hospital, and Richard Morgera, M.D., No.
98-0049 (June 23, 2004)
Sandra
Mendoza, f/k/a Sandra Santiago, and Charles E. Williams v. Midland Hyundai,
Inc. d/b/a Midland Mazda - Hyundai, No. 02-3909 (June 22, 2004)
Plaintiffs’
motion for class certification and Defendant’s motion to dismiss or, in the
alternative, for summary judgment. The
Court granted Defendant’s motion for summary judgment, finding that the Department of Transportation adopted
its “Rules and Regulations Regarding Dealers,
Manufacturers and Rental Licenses” as emergency rules, which expired within
120 days of their submission to the Secretary of State.
Larry
Milder and Lisa Milder v. East Greenwich Town Council, Et Al v. Robert M.
Duffey, Sharon S. Duffy, Joseph Herbert and Kim Herbert No. 02-873 (June
22, 2004)
Competing
motions for Summary Judgment brought by the Milders, Duffys, Herberts and the
East Greenwich Preserve for declaratory and injunctive relief regarding the
issuance of a “non-conforming use” zoning certificate; the application of
an Open Space Easement; and the rights of the parties under an existing
Conditional Easement/Agreement. The
Superior Court justice found that the doctrine of res
judicata applies to the “non-conforming use” zoning certificate
issues. The Court further
determined that 2.7 acres of the property in question is burdened by an Open
Space Easement. Granting and denying various portions of the parties’
motions for Summary Judgment, the Superior Court justice ordered that the
keeping and maintaining of horses on the property in question is a legal
non-conforming and permitted use, subject to the rights as defined in the Open
Space Easement and the Conditional Easement/Agreement.
John
M. Park v. Rizzo Ford, Inc., No. 02-3910 (June 17, 2004)
Plaintiff’s
motion for class certification and Defendant’s motion to dismiss or, in the
alternative, for summary judgment. The
Court granted Defendant’s motion for summary judgment, finding that the Department of Transportation
adopted its “Rules and Regulations Regarding Dealers,
Manufacturers and Rental Licenses” as emergency rules, which expired within
120 days of their submission to the Secretary of State.
Casa
DiMario, Inc. and Andiross, Inc. v. Rhode Island Department of Business
Regulation and the Town of Johnston, No. 02-1642 (June 16, 2004)
Delbonis
Sand and Gravel Co. and Frank Delbonis v. The Town of Richmond, Stephen D.
Antoni, Clyde B. Gordon, Jr., Kevin R. Gosper, Henry R. Oppenheimer, and W.
Michael Sullivan in their capacity as the Town Council of The Town of
Richmond, Elizabeth Fournier, in her capacity as Richmond Tas Assessor and
Patricia A. Sullivan in her capacity as Tresurer of the Town of Richmond
Zoning Board of Review, No. 99-0356 (June 15, 2004)
25
Assoc., LLC and PRI VI, LLC v. Edgar Paxson, in his capacity as Building
Official of the City of Providence; Samuel J. Shamoon, in his capacity as
Acting Director of the Department of Inspection and Standards of the City of
Providence and The City of Providence, No. 03-2771 (June 15, 2004)
The
Plaintiffs, 25 Assoc., LLC and PRI VI, LLC (“Plaintiffs”), filed an action
for declaratory and injunctive relief against the Defendants - Edgar Paxson,
in his capacity as Building Official for the City of Providence; Samuel
Shamoon, in his capacity as Acting Director of the Department of Inspection
and Standards of the City of Providence; and the City of Providence -
requesting a declaration of their rights pursuant to the City’s Zoning
Ordinance and seeking a permanent injunction enjoining the City from assessing
penalties and fines against the Plaintiffs for alleged violations of the
Downcity District regulations. The Court declared the provisions of the
Ordinance pertaining to the Downcity District to be null and void based on the
City’s failure (1) to depict the Downcity District on the relevant maps, (2)
to comply with proper notice requirements prior to amending the Ordinance, and
(3) to maintain the maps in the location mandated by the Enabling Act and the
Ordinance. The Court permanently
enjoined the City from imposing any penalties or fines against the Plaintiffs
relative to the demolition project at issue.
Douglas
L. Taylor v. Rhode Island Department of Human Services, No. 03-4514 (June
10, 2004)
Jon
E. Cohen v. Charles Duncan, Elizabeth Minifie, Peter J. O'Connel, Michael
Martin, and Brian T. McKeon, in their capacities as Members of the Zoning
Board of Review of the City of Newport, and the Inn At Cliff Walk, Inc. d/b/a
The Chanler, No. 02-599; Inn At Cliff Walk, Inc. v. Zoning Board of Review of
The City of Newport, No. 01-380 (June 9, 2004)
In
Part I of this consolidated decision, an aggrieved neighbor appeals a zoning
board of review’s approval of certain acts, by local zoning and building
officials, which purport to approve various aspects of a land development
project. Held: local hotel which existed by means of conditional
approval became nonconforming when the zoning ordinance was later amended to
prohibit any hotel uses in the relevant district. Because the applicable
ordinance prohibits any expansion or alteration of nonconforming uses, except
for limited repair purposes, the zoning board’s decision was in error of
law. Moreover, the hotel owner’s failure to follow proper procedures
negates any claim of good faith reliance on any purported approvals.
In
Part II of the decision, Plaintiff Hotel appealed zoning board’s decision
regarding the legal status of the hotel use and the propriety of future
activities on the property. That decision resulted from an appeal from a
zoning officer’s response to an informal request for information. The
Court concluded that a zoning certification or information provided pursuant
to R.I. General Laws § 45-24-54 is an advisory opinion, for guidance and
clarification only. Because such an advisory opinion is non-binding, it
results in no aggrieved parties. Therefore, the Zoning Enabling Statute
does not authorize an appeal from a zoning certificate or other information to
the zoning board or Superior Court. The board’s purported decision
here was issued in excess of statutory authority.
Insurance
Reconstruction Services, Inc. v. A.F. Lusi Construction, Inc. and Hartford
Accident and Indemnity Company; Insurance Reconstruction Services, Inc. v.
Providence Fire Restoration, Inc. and Commercial Drying Technologies, Inc.,
No. 03-4826 (June 1, 2004)
Motion for
summary judgment or partial summary judgment by Insurance Reconstruction
Services, Inc. (Plaintiff) against A.F. Lusi Construction, Inc. and Hartford
Accident and Indemnity Company (Defendants).
Finding the contract at issue ambiguous and the existence of a genuine
issue of material fact, the Court denied Plaintiff’s motion for summary
judgment. The Court further found
that Plaintiff was not entitled to judgment as a matter of law pursuant to the
Severin Doctrine. Finally, the
Court denied Plaintiff’s motion for partial summary judgment as there
existed a genuine issue of material fact.
D. David Slaven & Denise A. Slaven v.
Zoning Board of Review of the Town of Smithfield, George McKinnon, Antonio
Fonseca, David Greene, David Tassone, James Busam, Peter Fogarty and
Christopher O'Connor, as Members of the Smithfield Zoning Board of Review,
No. 03-0811 (May 28, 2004)
Summit Neighborhood Association and Grant
Dulgarian v. Rhode Island Department of Health, the Miriam Hospital and the
City of Providence, No. 03-5200 (May 27, 2004)
Sandford Neuschatz v. Jan H. Reitsma, in his
capacity as Director of the Rhode Island Department of Environmental
Management, No. 02-1589 (May 24, 2004)
Rhode Island Probation and Parole Association
v. State of Rhode Island, No. 01-3951 (May 21, 2004)
Climaco Guzman and Cielo Guzman v. Jan-Pro
Cleaning Systems, Inc., and Carol McZLennan, alias, No. 96-4703 (May 19,
2004)
Monarch Builders, Inc., a Massachusetts
Corporation v. Roman Natynak and Marsle Natynak, Their Heirs-at-law, Devisees,
Successors and/or Assigns, Unknown and Unascertained, No. 99-5681; Monarch
Builders, Inc., v. Marsle Natynak, a/k/a Marcelle Natyniak, et al, No.
00-0036 (May 17, 2004)
Following
a non-jury trial, the Superior Court Justice found in favor of defendants and
denied Plaintiff’s Petitions to Foreclose Defendants’ rights of redemption
and to Quiet Title of the property in question.
The Court found that plaintiff’s possession of the property in
question, including those acts of possession asserted by the previous tax
title holder, was insufficient to establish adverse possession.
State of Rhode Island, by and through
Patrick Lynch, Attorney General v. Lead Industries Association, Inc., et al,
No. 99-5226 (May 14, 2004)
Employers Mutual Casualty Company as Subrogee
of the Corrugated Pallet Co. v. Michael Weinig, Inc., No. 03-4115 (May 14,
2004)
James A. Duckworth v. Dennis A. Burkholder and
Cynthia A. Burkholder, No. 02-19 (May 10, 2004)
Gerald Zavota v. The Zoning Board of Review
For The Town of Barrington, et al, No. 02-1905 (May 7, 2004)
Japonica Partners v. State of Rhode Island,
Department of Labor and Training, Division of Labor Standards and Ronald C.
Garabedian, No. 00-1393; Ronald C. Garabedian v. Division of Labor
Standards, Department of Labor and Training, State of Rhode Island and
Providence Plantations and Japonica Partners & Co., No. 00-1603 (May
7, 2004)
Japonica
Partners and Ronald Garabedian appealed an administrative decision of the
Division of Labor Standards, Department of Labor and Training which awarded
Ronald C. Garabedian $5,703.49 in gross wages which had been denied to him by
his employer. After reviewing the entire record and considering the arguments,
the Court upheld the award in favor of Garabedian, but ordered that the amount
of the award be modified to conform to the record evidence. The Court
increased the award for unpaid vacation and arrearage wages to $9692.38, and
it increased the assessment against Japonica Partners to $2423.10.
Summit Insurance Co. v. Patrick Porcaro,
Andrea Porcaro, Anthony J. Fargnoli, Rhonda Fargnoli, Vincent Caprarelli,
et al, No. 99-2521 (May 5, 2004)
Tower Venture II, LLC. v. Global
Telecommunications, LLC, No. 04-0808 (April 30, 2004)
Lucien Gendron v. Robert Bruni, No.
03-5762 (April 26, 2004)
David Brooks v. Rhode Island Department of
Human Services, No. 03-1125 (April 22, 2004)
Richmond Ready-Mix as Possessor in interest of
Accounts Receivable of Atlantic Ready-Mix Concrete, Inc. v. Atlantic Concrete
Forms, Inc., No. 92-0960 (April 21, 2004)
Sitting
without a jury, the Court reviewed the parties’ Stipulated Facts and Consent
Decree to determine whether Atlantic Ready-Mix Concrete, Inc.’s (ARM)
account receivable, due and owing in the amount of $113,237.67 and for which
the Plaintiff was the possessor in interest, should be set-off by two
promissory notes claimed by the Defendant against ARM. The
Plaintiff purchased ARM’s account receivable from Citizens Trust Company
(Citizens), who had repossessed the account after ARM defaulted on a loan
Citizens issued to it for which the account was collateral.
The Court found the Defendant did not have standing to enforce the
promissory note issued by ARM to a third party.
With regard to the promissory note issued by ARM to the Defendant, the
Court established that the Defendant neither met its burden of proof for the
law of successor liability nor for the principle of set-off.
Applying Rhode Island’s Uniform Commercial Code, the Court
interpreted G.L. 1956 (1985 Reenactment) § 6A-9-104(i) on set-off in
accordance with the majority of jurisdictions and applied the priority
provisions of section G.L. 1956 (1985 Reenactment) § 6A-9-318(1)(b). Finding
the Defendant’s set-off counterclaim arose from its contract with ARM and
accrued after the Defendant received notice of the existence of the assignment
of the account receivable to Citizens, the Court concluded that the Plaintiff
owns ARM’s account receivable free and clear of the Defendant’s promissory
note. The Court, finding the
Defendant cannot set off ARM’s account receivable by its note and that said
note is neither valid nor enforceable against the Plaintiff, entered judgment
for the Plaintiff in the amount of the account receivable.
Chain Store Maintenance, Inc. v. National
Glass & Gate Service, Inc. d/b/a NG&G Facility Services International,
Inc., John Doe Corp., Alan P. Riendeau, Michael Cote, Patricia Dimascio,
Claudia Silva, Charles Vachon, and John Doe, No. 01-3522 (April 21, 2004)
Jane Sylvia Barrett v. Mark H. Barrett, alias,
and Karen B. Monahan, alias, as Co-Trustess of The Horace M. Barrett Trusts
u/a/dtd 2/22/02, No. 03-0340 (April 20, 2004)
Cullen, Inc., John Cullen and Barbara Cullen
v. Capital Crossing Preferred Corporation, No. 01-5337 (April 15, 2004)
In
a case involving a default on a mortgage and accompanying note, the Court
awarded costs associated with the redemption and attempted foreclosure,
interest, late fees and attorneys’ fees to the Mortgagee.
Manuel Machado and Maria Machado v. Holy Ghost
Brotherhood Charity, No. 01-4223 (April 14, 2004)
Raymond Bourque Muriel Jannell v. Thomas
Bruce, in his capacity as Treasurer of the Town of Cumberland; Katia
Ballisiano, in her capacity as The Town Planner of the Town of Cumberland;
Timothy Hogan, in his capacity as a Member of the Town of Cumberland Planning
Board: David F. Coutu, in his capacity as a Member of the Town of Cumberland
Planning Board; John Shevlin, in his capacity as a Member of the Town of
Cumberland Planning Board; Roy Costa, Jr., in his capacity as a Member of the
Town of Cumberland Planning Board; Albert Lamoureux, in his capacity as a
Member of the Town of Cumberland Planning Board; Robert Pellegrini, Jr., in
his capacity as a Member of the Town of Cumberland Planning Board; Cynthia A.
Mlyniec, in her capacity as a Member of the Town of Cumberland Planning Board;
Brandon Bell, in his capacity as a Member of the Town of Cumberland Planning
Board, No. 03-6614 (April 13, 2004)
Heidi Iselin v. Retirement Board of the
Employees Retirement System of Rhode Island, and Employees Retirement System
of Rhode Island, No. 03-5162 (April 9, 2004)
Pursuant
to the Administrative Procedures Act, Iselin appealed a decision of the
Retirement Board of the Employees’ Retirement System of Rhode Island
(Retirement Board), which found that the Retirement Board did not have
discretion to apply equitable tolling to the five-year statutory time frame
for filing accidental disability retirement applications under G.L. 1956 §
36-10-14(b). After reviewing the
entire record and considering the arguments, the Court found that the statute
is clear and that the Retirement Board does not have such discretion.
Additionally, Iselin sought declaratory relief which the Court declined
to entertain as the Administrative Procedures Act provided Iselin with an
adequate remedy and such relief would be duplicative of the administrative
review process. The Court affirmed
the Retirement Board’s decision.
Johnston School Committee v. Rhode
Island State Labor Relations Board, No. 03-0141 (Amended) (April 9, 2004)
Stanley Weiss Associates, LLC v. Energy
Management Inc., EMI Grace Park Hotel, LLC, James S. Gordon, Individually, and
Mitchell H. Jacobs, Individually, No. 02-1794 (April 7, 2004)
The
Court granted summary judgment for the fraud in the inducement counts finding
that Plaintiff’s reliance was unreasonable. Summary judgment is denied
for breach of contract claim finding that material issues of fact are exist as
to the alter ego status of the Defendant corporation. Summary judgment
is denied for a fraudulent transfer claim, as material issues of fact exist
with regard to the nature of the transfers.
Kurt Strakaluse v. Retirement Board of the
Employees' Retirement System of Rhode Island, Paul J. Tavares, Chairperson and
Treasurer of the Retirement Board of the Rhode Island Employees' Retirement
System in his official capacity, and Joann E. Flaminio, Executive Director of
the Retirement Board of the Rhode Island Employees' Retirement System in her
offical capacity, No. 99-3030 (April 8, 2004)
Pursuant
to the Administrative Procedures Act, Strakaluse appealed a decision of the
Retirement Board of the Employees Retirement System of Rhode Island
(Retirement Board), which found Strakaluse’s accidental disability pension
application, in which he claimed job-related stress and depression, did not
meet the identifiable incident requirement in accordance with G.L. 1956 §
45-21.2-9(a). After reviewing the
entire record and considering the arguments, the Court deferred to the
Retirement Board’s interpretation of the statute because it is consistent
with the Legislature’s intent. The
Court affirmed the Retirement Board’s decision finding that it is not based
on an error of law or clearly erroneous in view of the substantial evidence in
the record.
Karen F. Toti and Alan B.
Toti Individually and as Natural Parents and next Friends of Cross B. Toti, a
Minor v. Marshall W. Carpenter, M.D., James Whiteside, M.D., George B. Cabe,
M.D. Elizabeth L. Brill, M.D. and Women & Infants Hospital of Rhode Island,
No. 99-1373 (April 8, 2004)
The
Department of Human Services moved to intervene and set aside judgment after
the original parties settled a medical malpractice action, which purportedly
extinguished DHS’s right to reimbursement of Medicaid payments.
Granting DHS’s motion to intervene, the Court held that Plaintiff was
required to give DHS notice of any lawsuit or settlement pursuant to G.L. 1956
§ 40-6-9(d) and 42 U.S.C. § 1396a(a)(45).
The Court also granted DHS’s motion to set aside judgment in order to
recover Medicaid payments pursuant to § 40-6-9.
The Court held that the collateral source statute, § 9-19-34.1, does
not apply in this case because there was neither a jury verdict, nor a
settlement amount reduced based on the Medicaid payments, as the statute
requires.
Maria Esposito, as Executrix of the Estate of
Marion T. Thompson v. James P. O'Hair, Daniel Regan, Atmed Treatment Center,
Inc. and the Medical Malpractice Joint Underwriting Association of Rhode
Island, No. 01-1542 (April 6, 2004)
The
parties to a medical malpractice action settled every issue, but left to the
Court’s determination whether Plaintiff is entitled to recover damages paid
by Medicaid. The Court held that
the collateral source statute, G.L. 1956 § 9-19-34.1, does not preclude
Plaintiff from recovering those sums because Medicaid does not fall within one
of the enumerated categories set forth in the statute.
Accordingly, summary judgment entered in favor of Plaintiff.
St. Angelo Motors, Inc. v. County
Development Associates, LLC; CVS Corporation; Consumer Value Stores of Rhode
Island, Inc.; Barrington CVS, Inc.; CVS, Inc.; J. Robert Pesce; CVS Pharmacy,
Inc., No. 99-0242 (April 5, 2004)
Johnston School Committee v. Rhode Island
State Labor Relations Board, No. 03-0141 (April 5, 2004)
Joseph M. Brito v. Belvedere Developers, LLC
(f/k/a/ Bristol Hotel Partners, LLC); Belvedere Hotel, LTD.; Center
Development Corporation, Town of Bristol (by and through its Planning Board),
James W. Farley, Jerome A. Squatrito, Frank Sienkiewicz, Kenneth J. Marshall
and Anthony D. Murgo, in their capacities as members of the Planning Board of
the Town of Bristol, No,. 03-6232 (March 29, 2004)
State of Rhode Island Department of
Corrections and Rhode Island Refunding Bond Authority as successor to Rhode
Island Public Buildings Authority v. ADP Marshall, Inc. as successor-by-merger
to Marshall Constractors, Inc.; The Aetna Casualty and Surety Company;
Perma-Pipe, Inc.; The Bookbinder Company, Inc.; John Doe I and John Doe II on
behalf of the Bookbinder Company, Inc.; Liberty Mutual Company; Atlantic
Mutual Insurance Company; and Commercial Union Insurance Company, No.
99-4704 (March 29, 2004)
Respective
motions for summary judgment of subcontractor and surety, Defendants, in suit
by Department of Corrections and Refunding Bond Authority, Plaintiffs, to
recover monies allegedly expended in repairing correctional facility’s hot
water system. The Court granted
the subcontractor’s motion against Department of Corrections, finding that a
settlement agreement releasing claims relating to the water system’s
installation was binding on the Department.
The Court further granted the surety’s motion against Plaintiffs as
the settlement agreement, in addition to binding Department of Corrections,
bound Refunding Bond Authority.
1500 Mineral Spring Associates, LP, 1800 Smith
Street Associates, LP, and Jason's Realty Corp., No. 00-1732, 00-3174,
00-3175 (March 26, 2004)
Jeffrey Scott Hornoff v. City of
Warwick Police Department, No. 03-4264 (March 23, 2004)
Alan S. Cameron v. Rhode Island Department of
Business Regulation and Marilyn Shannon McConaghy, In her capacity as Director
of the Department of Business Regulation, No. 03-0319 (March 23, 2004)
Estelle Burton v. Cumberland Farms, Inc.,
No. 00-6170 (March 19, 2004)
Candace E. McCarthy v. Jeffrey W.
Durham et al, No. 03-360 (March 17, 2004)
Estate of Anna M. Notarianni, No. 02-5295 (March 17, 2004)
State of Rhode Island v. Marcus Rodriquez, No. 00-2232 (March 16, 2004)
Michael Homer v. Shawn Brown in his capacity as Finance Director for the
Town of Middletown and the Town of Middletown, Rhode Island, No. 03-0345
(March 15, 2004)
Brett C. Lill v. John Algiere, Thurmond Silks,
Howard Schaffer, Philllip Scalise, Daniel Harrington, Jeffery Gilman, and
Anthony D'Agnenica, in their capacities as members of the Zoning Board of
Review of the Town of Hopkinton, Rhode Island, No. 01-0501 (March 15,
2004)
State of Rhode Island, by and through
Patrick C. Lynch, Attorney General v. Lead Industries Association, Inc.,
et al, No. 99-5226 (March 16, 2004)
Jane Cannata v. John J. Labutti, et al,
No. 99-3916 (March 12, 2004)
Lucille B. Hemond v. Lucrecia Gaudette,
No. 02-2965 (March 12, 2004)
State of Rhode Island v. Robert
Picerno, No. 02-3047B; State of Rhode Island v. Jonathan Oster, No.
02-3047A (March 10, 2004)
Chelo's of Woonsocket, Inc., Beef Hearth,
Inc., Beef Hearth of Providence, Inc., Chelo's of Warwick, Inc., Chelo's Beef
Hearth of Cranston, Inc., Chelo's Realty, Inc., Chelo's Waterfront Bar &
Grill, Inc., Chelo's Real Estate, Chelo's of East Providence, Inc., Chelo's
Properties, L.L.C., Chelo's of South County, Inc., Chelo's Steak House, Inc.,
Glenn Chelo, and Craig Chelo, No. 03-4646 (March 8, 2004)
Plaintiffs
moved for a preliminary injunction enjoining Defendants from allegedly
violating a non-competition agreement. Defendants
counterclaimed for injunctive relief and declaratory judgment.
Finding that Plaintiffs failed to demonstrate irreparable harm or a
reasonable likelihood of success on the merits, the Court denied Plaintiffs’
motion. The Court further denied
Defendants’ claim for injunctive relief as Defendants have likewise failed
to prove irreparable harm and a reasonable likelihood of success on the
merits. The Court granted,
however, Defendants’ claim for declaratory relief.
Cranston School Committee v. City of Cranston;
Peter T. Pastore, Jr., President of the Cranston City Council, Allen W. Fung,
Randall A. Jackvony, Ellen O'Hara, Cynthia M. Fogarty, Paula McFarland, Marc
D. Ferolito, John E. Lanni, Jr., and Kirk McDonough, in their capacity as
members of the Cranston City Council, Stephen P. Laffey, Mayor of the City of
Cranston; Jerome I. Baron, Fiance Director of the City of Cranston; Carlo
Delbonis, Tax Assessor of the City of Cranston and Randy Rossi, Treasurer of
the City of Cranston, No. 03-5110 (March, 2004)
Complaint
filed pursuant to R.I.G.L. § 16-2-21.4, brought by Plaintiff school
committee, seeking additional funding from the Defendant appropriating
authority in the amount of $3,200,770 for the 2003-2004 school year.
The Superior Court Justice found that the Plaintiff failed to meet its
burden by proving by a preponderance of the evidence that an additional
appropriation of $3,200,770 is necessary for the current school year.
Denying Plaintiff’s request for an additional appropriation, the
trial justice concluded that the greater weight of the evidence in the record
establishes that the Cranston public school system is adequately funded by the
City in the amount of $105,718,285 (the amount appropriated by the City), and
this appropriation will permit the School Committee to operate with a balanced
budget in fiscal year 2003-04.
Michael Cobb d/b/a Executive Search
Group v. Stevens-Henager College and College America Services, Inc., No.
01-493 (March 4, 2004)
Jeffrey Scott Hornoff v. City of
Warwick Police Department, No. 03-4264 (March 2, 2004)
The Elena Carcieri Trust - 1988 and Elena
Pisaturo as Successor Trustee v. Enterprise Rent-A-Car Company of Rhode Island,
No. 03-6330 (March 2, 2004)
Frederick S. Tanner v. The Town of East
Greenwich, et al., No. 02-0876 (March 1, 2004)
State of Rhode Island, by and through Patrick
C. Lynch, Attorney General v. Lead Industries Association, No. 99-5226
(March 1, 2004)
Robert Johnson v. Robert L. Carl, Jr.,
individually and in his capacity as Director, Department of Administration,
and the State of Rhode Island, No. 02-5952 (March 1, 2004)
State of Rhode Island v. Timothy J.
Sullivan, No. 01-0177 (March 1, 2004) This is an
amended Decision, due to typographical errors in the original Decision filed
on February 11, 2004.
Frederick S. Tanner v. The Town of
East Greenwich, et al, No. 02-0876 (February 27, 2004)
Hotel Associates, LLC v. HMS Associates
Limited Partnership, Anthony M. B. Hart, Fulford Manufacturing Company,
and International Building Wrecking Company, No. 96-6273; Hotel
Associates, LLC v. Scottsdale Insurance Company v. HMS Associates Limited
Partnership, Anthony M.B. Hart, Fulford Manufacturing Company, No. 97-0507
(February 20, 2004)
Plaintiff
filed claims for strict liability, equitable indemnification, fraudulent
nondisclosure, and negligence resulting from its remediation of underground
storage tanks on a property it purchased from a Defendant.
The Court granted the Defendants’ motions for summary judgment as to
all of these claims. The Court granted the motions as to the strict liability
claims, finding no private cause of action exists under the Hazardous Waste
Management Act. The Court granted the motions as to equitable indemnifications
claims, finding the State of Rhode Island exclusively enforces the Underground
Storage Tank Regulations and the Hazardous Waste Management Act. The Court
granted the motion as to the nondisclosure claim, finding the doctrine of
caveat emptor applies to commercial real estate transactions in Rhode Island.
Finally, the Court granted the motion as to the negligence claim, finding the
Plaintiff did not establish the existence of a duty.
Sura Realty Corp., v. Park Realty Trust,
No. 98-5535 (February 18, 2004)
The Court
decided a series of motions in response to Plaintiff SuRa Realty
Corporation’s efforts to obtain a decree forever barring Park Realty Trust
from redeeming rights to certain real property in Woonsocket.
Jurisdiction was pursuant to the Rhode Island Tax Sale Statute, G.L.
1956 § 44-9-1 et seq. The
Court found, inter alia, that the Defendant’s response to the
Petition to Foreclose the Right of Redemption was untimely and ordered that a
decree forever barring the Park Realty Trust from redeeming rights to the
subject property enter.
Ivette Alicea v. Rhode Island Department of
Human Services, No. 03-3144 (February 18, 2004)
Jamie Perrotti and Paul A. Perrotti v. Paul S.
Gonicberg, No. 00-1969 (February 11, 2004)
Plaintiff
husband and plaintiff wife, who were in car accident, brought a negligence
action against the Defendant driver of the other vehicle. At the time of
the accident plaintiff wife was six months pregnant. At trial, the Court
granted judgment as a matter of law, dismissing the plaintiff wife’s psychic
damage claim for anxiety and anguish she allegedly endured regarding the
health of her unborn fetus. On the remaining negligence count, the jury
awarded the plaintiffs $750 on damages. Plaintiffs moved for a new
trial. The Superior Court denied the motion for new trial, finding that
evidence of the daughter’s injury was relevant to the daughter’s claim,
which had been severed from the plaintiffs’ within claims; exclusion of
evidence of the mother’s anxiety and concern regarding the unborn fetus was
not before the Court as that claim had been dismissed by judgment as a matter
of law; and that the jury’s verdict was not against the weight of the
evidence.
International Brotherhood of Police Officers,
Local 301 v. City of Cranston and Melody J. Cassel and Raymond J. Angell III,
No. 03-0680 (February, 2004)
DeSimone Electric, Inc. v. CMG, Inc., Ashford
Homes, LLC, and James Colucci, No. 01-6077 (February 9, 2004)
This
matter was before the Court on Plaintiff’s breach of contract claim and
petition to enforce its mechanics’ lien, as well as Defendants’ breach of
contract and negligence claims. The
Court dismissed Plaintiff’s petition, holding the Rhode Island Mechanics’
Lien Law, as amended, unconstitutional. In
addition, the Court found that Plaintiff could not recover on its breach of
contract claim because it did not substantially perform.
The Court further held that Plaintiff breached its contract concerning
certain electrical installation work and was negligent in its performance of
same. Accordingly, the Court granted Defendants $10,666 for the costs
expended on permits and in hiring outside parties to finish or correct work.
The Court, however, denies Defendants recovery as to their claims for
management and supervision fees and interest because Defendants have failed to
prove said claims to a reasonable degree of certainty or by competent
evidence.
State of Rhode Island Department of
Corrections v. Rhode Island Brotherhood of Correctional Officers, No.
96-5983 (February 5, 2004)
Before this
Court are the State of Rhode Island Department of Corrections’ motion to
vacate an arbitration award and the Rhode Island Brotherhood of Correctional
Officers’ motion to confirm the same. The
Court granted the motion to vacate, holding that whether the Department of
Corrections’ director may refuse to fill certain posts on an overtime basis
does not constitute an arbitrable issue and, therefore, the arbitrator
exceeded his powers. The Court
further found that submission of this dispute to arbitration constituted an
usurpation of the Department of Corrections’ and its director’s statutory
authority under R.I. Gen. Laws § 42-56-10(2).
Finally, the Court held that the arbitrator’s award failed to draw
its essence from the collective bargaining agreement and was irrational.
REPM, Inc. v. P.C.M., Inc., No. 00-6329
(February 5, 2004)
Kyle Rowley v. 25 India Point St. Corporation,
Inc., d/b/a Bootleggers Nightclub, and Enrico Marzilli, Jacen Scungio, Carmen
Iacobo, John Lepore, and John Doe, No. 00-1810 (January 30, 2004)
Before the
Court were several post-trial motions of the Defendants and Plaintiff.
The Court denied Defendants’ renewed motion for judgment as a matter
of law, finding that assault and battery are torts involving maliciousness and
will support an award of punitive damages.
The Court denied Defendants’ motion for a new trial holding that
assault and battery require separate and distinct elements of proof than false
imprisonment and intentional infliction of emotional distress; therefore, the
jury verdict was not inconsistent. The
Court set aside the award of punitive damages because it was unsupported by
any compensatory damages and did not manifest the requisite “willfulness,
recklessness, or wickedness.”
Town of Burrillville v. Rhode Island State
Labor Relations Board, No. 02-2513 (January 30, 2004)
Town of
Burrillville appealed a decision of the Rhode Island State Labor Relations
Board (“RISLRB”), which found that the Town of Burrillville violated G.L.
§ 28-7-13(6) by refusing to bargain with the Local 369, International
Brotherhood of Police Officers over the implementation of a General Order,
issued by the Chief of Police, dictating procedures to be followed when a
police officer is injured while on duty. After
reviewing the entire record and considering the arguments, the Court held that
the content of the General Order constituted a mandatory subject for
bargaining and that the Union did not waive its right to bargain over
the General Order. The Court affirmed the decision of the RISLRB.
State of Rhode Island v. Robert Picerno,
No. 02-3047 (January 30, 2004)
Motion to
suppress statements and tangible evidence.
Superior Court justice denies defendant’s motion, finding no
violation of defendant’s constitutional rights against self-incrimination,
freedom from unreasonable searches and seizures, or right to counsel.
Defendant knowingly, intelligently, and voluntarily waived his Miranda
rights, and made all statements voluntarily.
Consent to search defendant’s residence obtained freely,
intelligently, and voluntarily from defendant’s spouse/co-inhabitant.
Mary E. DeFontes and, Nicholas T. Long,
individually and on behalf of a class of persons similarly situated v. Dell
Computers Corporation, Dell Catalog Sales Limited Partnership, Dell Marketing
Limited Partnership, Qualxserv, LLP and Banctec, Inc., No. 03-2636
(January 29, 2004)
Andre Charpentier v. Evangelista Enterprises,
LLC., et al., v. Jack Mayo and Heather Mayo, No. 01-6149 (January 23,
2004)
Executive Transporation, Inc. v. Division of
Public Utilities and Carriers, No. 02-1907 (January 22, 2004)
Heritage Healthcare Services, Inc., v. The
Beacon Mutual Insurance Company, Joseph Arthur Solomon, Jeffrey Carleton
Johnson and Michael Dennis Lynch, No. 02-7016 (January 21, 2004)
Luanne Powers v. Joseph A. Coccia and Rose A.
Coccia, Alias, No. 02-6986 (January 20, 2004)
Motion for
new trial by Plaintiff following a jury verdict in favor of Defendant
landlord, finding that he was not negligent in maintaining the premises.
The Court finds that the verdict was not contrary to the evidence as
the jury could reasonably conclude that a dangerous defect did not exist at
the time. The Court also finds
that the jury was properly instructed on a landowner’s duty of care;
moreover, the Plaintiff did not timely object to the jury instructions.
The Court further finds that an affidavit was properly excluded as
hearsay and not an admission made by a party’s agent or servant.
Morris Maglioli and Andrea Maglioli for
themselves and as the parents and natural guardians of Talia Maglioli, a minor
v. J.P. Noonan Transporation, Inc. and Kenneth Baker, No. 01-6423; Nelson
Ferreira and Angela Ferreira, for themselves and as parents and natural
guardians of Devin Ferreira, a minor v. J.P. Noonan Transporation, Inc. and
Kenneth Baker, No. 01-6408 (January 16, 2004)
Motion
for new trial and/or additur by Plaintiffs from a jury decision of the
Superior Court. After reviewing
the evidence before it, and considering the credibility of the witnesses, this
Court found errors of law warranting a new trial.
In particular, this Court erred in instructing the jury on the rear-end
doctrine presumption because the car accident at issue did not in fact
constitute a rear-end collision, and erred in giving the sudden emergency
instruction as the facts adduced in evidence did not warrant the same.
Allstate Drilling Company d/b/a New England
Foundation & Stabilization Co., No. 02-5877 (January 15, 2004)
In a non-jury
trial, Plaintiff seeks recovery from the Defendant for breach of contract and
quantum meruit in the amount of $15,928.75.
Defendant hired Plaintiff to perform construction work on her home for
$17,000 and paid $8,500 as a deposit before the work began.
Plaintiff incurred additional expenses during the project in the amount
of $7,428.75. The contract
provided that any extra costs would be brought to the attention of the
Defendant; however, the Court finds that Defendant was never informed of these
additional costs. Accordingly,
Plaintiff has not met its burden of proof on the breach of contract and
quantum meruit claims. Judgment
entered in favor of the Defendant.
Walter R. Simpson, Jr. v. State of Rhode
Island Department of Corrections, No. 01-2031 (January 15, 2004)
In a non-jury
trial, Plaintiff seeks recovery from Defendant Department of Corrections for
injuries sustained as a result of an assault by a fellow prisoner.
The Court finds that Plaintiff failed to present sufficient evidence
that Defendant breached its duty of care or had reason to know that he would
be assaulted. Judgment for the
Defendant.
Bid Daddy Taxi Service, Inc. v. Rhode Island
Public Utilities Commission Division of Public Utilities & Carriers,
No. 02-6091 (January 14, 2004)
In Re: Carolyn Zak, No. 03-3992 (January
8, 2004)
Samram Kem, in his capacity as Administrator
of the Estate of Yuth Prum v. John M. Monchick, M.D., F.A.C.S., Salim Ghorra,
M.D., and Rhode Island Hospital, No. 99-4646 (January 7, 2004)
Jeffrey Scott Hornoff v. City of Warwick
Police Department, No. 2003-4264 (January 6, 2004)
Bruce Brayman Builders, Inc. v. Town of
Hopkinton Zoning Board of Review & Thomas McQuade, No. 00-0036
(January 4, 2004)
Appeal from a
decision of the Zoning Board of Review of the Town of Hopkinton denying an
area and street frontage dimensional variance for the construction of a
residential dwelling. The Board
did not err in denying the variances because the Plaintiff’s application was
improperly amended during the course of the hearings before the Zoning Board. The
home, as proposed in the amended application, still required a variance from
the side yard setback requirements, which the Plaintiff was no longer
requesting. The Superior
Court affirmed the decision of the Board denying the variances.
2002)
