SYED NURUZZMAN vs. ANDRE KOROTOUOV [Note 1]

CRANE, J. This appeal presents the issue of whether a trial judge abused his discretion in denying a tenant's request for continuance to obtain counsel in a residential summary process case where the landlord was seeking possession because the tenant allegedly held over after the conclusion of the term while being in compliance with all other terms of the tenancy.

Andre Korotounov ("tenant") occupied an apartment at 89-91 Hancock Street, Cambridge. He was sixty-two years old and had lived there for ten years or more as a government subsidized Section 8 tenant. Syed Nuruzzman ("landlord") alleged that the tenancy was terminated without cause and offered to create a new tenancy in a notice to quit for an increased rent of $400.00 each month. The tenant was current in his rent, and the landlord did not allege any other reason for terminating the tenancy. When the tenant did not accept the offer and continued in possession, the landlord commenced a summary process action.

The tenant appeared in court on the morning of the scheduled trial, June 22, 2017, and requested a continuance to obtain counsel. He had consulted with an attorney who was present but ceased to represent the tenant for undisclosed reasons before the trial and without filing an appearance. The tenant never filed an answer or any other responsive pleading.

When the case was called, the landlord's counsel described the matter to the court as an eviction for failure to accept a new tenancy, and the judge asked, "So this is a no-fault eviction?" and stated, "So he has no defenses?" The tenant responded that he had a defense and wanted time to get a lawyer to present it. The judge responded, "But in a no-fault eviction you have no defenses. . . . They just want possession." When the tenant stated that he had a disagreement with the attorney he spoke to at court, the judge stated, "She told you the law correctly." The judge further stated, "You're fighting a losing battle." The tenant still asked for time to get another lawyer, to which the judge said, "Well, you're going to get the same answer. You have a judge saying the same thing." The judge then suspended the proceedings while the parties went outside the court room to discuss settlement.

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Sometime in the early afternoon, the parties appeared before the judge again. Initially, the court indicated that it would continue the matter for one week, but when the landlord's counsel stated that he would not be available then and no sooner than three weeks later because of a combination of a public holiday on the following day the court scheduled summary process trials and counsel's personal schedule, the court denied the request for continuance. In doing so, the court stated, "It's a no-fault eviction." The court then continued the trial until 2 P.M. to obtain an interpreter for the tenant.

Once again, the tenant requested a continuance to obtain counsel. The trial judge stated, "But you had an attorney this morning. You decided, for the record, that you waived your right to an attorney today. It's on for trial. Counsel wants a trial today." To this, the tenant responded, "I didn't fire her. She refused to --." The court then conducted a bench trial with testimony from both parties, with the interpreter participating. It admitted the notice to quit and the summons and complaint as the only exhibits. The tenant testified that he was sixty-two years old, had a disability and a section 8 voucher, and lived at the premises for twenty years, paying his rent on time. The tenant also testified that he did not meet the attorney that he hired until the morning of the trial and that she refused to represent him and had all of his documents including his lease. Again, the tenant asked for more time to find another attorney and get his file. No lease was ever offered into evidence. The court found for the landlord for possession only and ordered that execution be stayed until September 15, 2017.

The tenant contends that the trial judge abused his discretion when he failed to grant him a continuance to obtain counsel. The landlord responds that it was not an abuse of discretion to deny a continuance to obtain counsel under these circumstances because any lease between the parties had expired. Therefore, the landlord was entitled to be awarded possession.

"We review the denial of a request for a continuance for abuse of discretion. See [Commonwealth v.] Miles, [ 420 Mass. 67, 85 (1995)]; Commonwealth v. Cavanaugh, 371 Mass. 46, 50-51 (1976). '[T]here is no "mechanical test" for determining whether the denial of a continuance constitutes an abuse of discretion because we must examine the unique circumstances of each case, particularly the reasons underlying the request.' Commonwealth v. Pena, 462 Mass. 183, 190 (2012). A judge should grant a continuance only when justice so requires, balancing the requesting party's need for additional time against concerns about inconvenience, cost, potential prejudice, and the burden of the delay on both the parties and the judicial system. Commonwealth v. Gilchrest, 364 Mass. 272, 276 (1973)." Commonwealth v. Ray, 467 Mass. 115, 128 (2014). A judge has committed an abuse of discretion when the basis of the judge's decision stems from "'a clear error of judgment in weighing' the factors relevant to the decision" and, thus, "the decision falls outside the range of reasonable alternatives." L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).

The trial judge denied the tenant's request for a continuance without making any reference to the factors in Gilchrest, supra. Instead, he decided the tenant had no defenses before hearing any evidence. At each instance when the trial judge considered the tenant's request for a continuance, he stated that this was a no-fault eviction for which the tenant had no defenses. He had only the representation of landlord's counsel when he stated this and had taken no evidence. When the trial judge did take evidence, it was undisputed the tenant had a section 8 voucher through a local

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housing authority. However, there was no evidence of any lease or whether its term had expired as the landlord now argues. Depending upon whether the lease expired or not, the landlord may have been required to show "good cause" or a "non-discriminatory business reason" for terminating the tenancy. "Tenants of public and subsidized housing also have the advantage of greater procedural protections against eviction than tenants of private housing. See G.L. c. 121B, § 32; 42 U.S.C. §1437d(k)(1)(4) (1994) (providing that tenants of State and Federal public housing may not be evicted except for good cause)." Dowell v. Commissioner of Transitional Assistance, 424 Mass. 610, 615-616 (1997). By denying the tenant's request for a continuance to engage counsel, the court accepted the assertion of landlord's counsel that this was a "no-fault" eviction without examining any lease.

Tenant's failure to agree with prospective counsel about representation and tenant's requests for a continuance to obtain other counsel do not appear to be interposed for delay. Contrary to the trial judge's statement just before the trial commenced, the tenant never waived his right to be represented by counsel by failing to obtain representation from the attorney who was present on the morning of trial. Moreover, the court was initially inclined to continue the trial for one week but declined to do so because the landlord's counsel was not available for three weeks. This was a bench trial where the tenant was current in his rent, other than a requested increase of $400.00 each month. The parties were the only witnesses, and the outcome of the trial was likely to turn on whether any lease had expired or not. Even after any continued trial at which the landlord might prevail, the tenant would have been entitled to seek a stay for as long as twelve months pursuant to G.L. c. 239, § 9, because he was over sixty years of age, had been a tenant for more than ten years, and was otherwise current in his rent. The trial judge did stay the execution until September 15, 2017, without explanation. There were a range of reasonable alternatives available to the trial judge other than conducting the bench trial without giving the tenant a further opportunity to obtain counsel because the trial judge concluded the tenant had no defenses before receiving any evidence.

The trial judge made a clear error of judgment that fell outside the range of reasonable alternatives when he responded to the tenant's repeated requests for a continuance to obtain counsel under all of these circumstances. It was an abuse of discretion to deny tenant's request for continuance in these circumstances.

Judgment vacated, and this case is returned for a new trial.