Home LOUIS BERGER & another [Note 1] vs. CITY OF QUINCY & others. [Note 2]

14 Mass. App. Ct. 964

August 5, 1982

The plaintiffs appeal from a summary judgment entered for the defendants. This action for damages and equitable relief was brought against the city and several of its officials in connection with the defendants' demolition of one house, and the threatened demolition of a second house, on property originally owned by the plaintiffs and subsequently taken by the city. We reverse.

Contrary to the defendants' contention, there is a material issue of fact as to whether the city and its officials complied with G. L. c. 143, Sections 6-9. Cf. Worcester v. Eisenbeiser, 7 Mass. App. Ct. 345 , 349 (1979). This is so even if the judge, in his discretion, cf. Stetson v. Selectmen of Carlisle, 369 Mass. 755 , 763 n.12 (1976), considered the correspondence and notes submitted by the defendants. There is a genuine issue raised by the sworn complaint and affidavit of Estelle Berger as to whether, in the circumstances of this case, the plaintiffs refused or neglected to comply with orders to make the building safe within the meaning of G. L. c. 143, Section 9. Nor is it apparent from the record, in view of the continued negotiations, that the February 25, 1975, order had to be appealed under G. L. c. 143, Section 10, and G. L. c. 139, Section 2.

We also reject the defendants' rather anomalous claim that the plaintiffs' action insofar as it sought damages in excess of the amount awarded pursuant to G. L. c. 79, Section 6, was both premature and brought too late -- premature, because it was brought before the right to damages vested as the taking did not occur until after this litigation had commenced; too late, because no action under G. L. c. 79, Section 16, was brought within the two years after the taking. "It has often been held that where a statute requires action to be taken within a certain time after an event, the action

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may be taken before the event, the statute being construed as fixing the latest but not the earliest time for the taking of the action." Webster Thomas Co. v. Commonwealth, 336 Mass. 130 , 135-136 (1957). As in that case, there are here special circumstances so that an action created by statute may be instituted before the right finally accrues. Id. at 136. See also Becton, Dickinson & Co. v. State Tax Commn., 374 Mass. 230 , 234 (1978).

We see no error in the judge's refusal to allow the plaintiffs' amended complaint, but do not intimate that additional amendments, if proper, should not be considered in his discretion. See Fram v. Boston, 363 Mass. 68 , 73 (1973).

Judgment reversed.


[Note 1] Estelle Berger.

[Note 2] Five city employees were originally named as individual defendants, but three were dismissed by stipulation so that only two remained.