This case comes before the court on various filings by the parties. The underlying action is for declaratory judgment, pursuant to G.L. c. 231A, § 1, concerning the rights of the parties to certain ways, known as Wheldens Path, Pohogonot Road, and the Road to Short Point, over certain parcels of real property owned of record by Defendants, Michael D. Myerow, as Trustee of Botar Realty Trust, Rabor Realty Trust, and Tarob Realty Trust (Myerow Defendants); Pamela Kohlberg, as Trustee of the Jobs Neck Trust; Andrew Kohlberg, as Trustee of the High Road Realty Trust; Jeffrey Flynn, Richard Keeler, and Patricia Post, as Trustees of the Pohogonot Trust (Pohogonot Defendants); and Short Point Holdings, LLC.
Motion for Partial Summary Judgment on Counts II, IV, VI, VII, and VIII of the Second Amended Complaint
The Myerow Defendants have moved for Partial Summary Judgment on Counts II, IV, VI, VII, and VIII of the Second Amended Complaint. Plaintiffs have filed a Non-opposition to the motion. In the Non-opposition, Plaintiffs expressly reserve their prescriptive easement claims. Subsequently, the parties field a Stipulation of Dismissal as to Counts II, IV, VII, and VIII, only, of the Second Amended Complaint. Count VI seeks a prescriptive easement over the Beach Paths. Therefore, Count VI of the Second Amended Complaint is an issue that should be reserved for trial. Accordingly, it is hereby:
ORDERED that Counts II, IV, VII, and VIII of the Second Amended Complaint are DISMISSED with prejudice; and it is further
ORDERED that the Myerow Defendants Motion for Partial Summary Judgment on Count VI of the Second Amended Complaint is DENIED.
Motion for Partial Summary Judgment on Counts II, VI, and VII of the Counterclaims of the Additional Defendants in Counterclaim
The Myerow Defendants filed a Motion for Partial Summary Judgment on Counts II, VI, and VII of the Counterclaims against the Pohogonot Defendants by the Additional Defendants in Counterclaim. On July 20, 2009, the last remaining Additional Defendants in Counterclaim, Paul E. Konig and Joanne V. Konig, as Trustees of the Paul E. Konig Revocable Living Trust and the Joanne V. Konig Revocable Trust (Konig Additional Defendants in Counterclaim), filed a Non-opposition to the Motion, stating that they understood that by this non-opposition, the court would dismiss Counts II, VI, and VII of their Counterclaims. By letter dated September 30, 2009, the attorney for the Pohogonot Defendants and the Myerow Defendants informed the court that the Konig Additional Defendants in Counterclaim assented to the dismissal of the counts with prejudice. Accordingly, it is hereby:
ORDERED that Counts II, VI, and VII of the Counterclaims against the Pohogonot Defendants by the Additional Defendants in Counterclaim are DISMISSED with prejudice.
So Ordered.
By the court (Trombly, J.).
JOHN D. HAMILTON, JR and ANDREW H. COHN, as Trustees of OYSTER POND EP TRUST; RICHARD L. FRIEDMAN, ALLEN W. NORTON, and JUDITH NORTON, individually and with MELISSA NORTON, as Trustees of QUIET OAKS REALTY TRUST; ALBERT WHITE, TONI WHITE HANOVER, and SHAUNA WHITE SMITH, as Trustees of the QUAMPACKY TRUST; MARK B. NORTON; SHAUNA WHITE SMITH; DEBRA WHITE SCOTT; LISA WHITE; and TONI WHITE HANOVER v. MICHAEL D. MYEROW, as Trustee of BOTAR REALTY TRUST, RABOR REALTY TRUST, AND TAROB REALTY TRUST; PAMELA KOHLBERG, as Trustee of the JOBS NECK TRUST; ANDREW KOHLBERG, as Trustee of the HIGH ROAD REALTY TRUST; JEFFREY FLYNN, RICHARD KEELER, and PATRICIA POST, as Trustees of the POHOGONOT TRUST; and SHORT POINT HOLDINGS, LLC. PAUL E. KONIG and JOANNE V. KONIG, as Trustees of the PAUL E. KONIG REVOCABLE LIVING TRUST and the JOANNE V. KONIG REVOCABLE TRUST, Additional Defendants in Counterclaim.