TLC 54444

March 31, 1980

Essex, ss.

Sullivan, J.


Hotel Edison Company (the "Hotel") has petitioned this Court pursuant to G. L. c. 60, §69, to vacate a final decree entered in favor of the City of Lynn in Tax Lien Case No. 54444. The decree foreclosed the Hotel's right to redeem under the deed given by the collector of Taxes to said City dated June 9, 1975 and recorded with Essex South District Deeds, Book 6160, Page 670. The City's petition to foreclose the Hotel's rights of redemption was filed on February 27, 1978. The case was assigned for hearing on November 21, 1978 and was continued several times until on June 14, 1979 the parties were advised that the final decree would be entered on August 1, 1979 if an agreement between them had not been reached by that time. The motion for final decree in fact was allowed on said date, and on August 14, 1979 a petition to vacate was denied. An appeal was taken to the Appeals Court which on January 23, 1980 was dismissed for failure of the Hotel to prosecute it, i.e. by failure to file a brief.

On Friday, March 21, 1980, the Hotel sought from this Court an ex parte temporary restraining order to prohibit the City from taking further steps in its tax title proceeding against the Hotel. This request for a restraining order was denied by this Court which rather gave the Hotel a short order of notice; however, it was allowed by Justice Kass of the Appeals Court on March 24, 1980. The latter order read as follows:

On the ex parte motion of the defendant/appellant, Hotel Edison Company, I order that the City of Lynn, acting through its treasurer, is temporarily restrained from taking further steps in its tax title proceeding against the Hotel Edison Company, including, but not limited to, recording a decree of tax title in the Registry of Deeds. This order shall stay in force pending a determination by the Land Court on the petition of Hotel Edison Company to vacate the tax title decree previously issued by it in favor of the City of Lynn. If the Land Court has not acted on that petition by the close of business on April 1, 1980, the parties to this case shall appear in this court at 10:00 A.M., April 2, 1980 for such further action, if any, as may beindicated. This order is without prejudice to Hotel Edison Company to file a petition for rehearing in this court on the dismissal of its appeal.

However, the City had recorded a copy of the final decree in the tax title foreclosure proceeding prior to the allowance of the restaining order.

The short order of notice issued by this Court was returnable last Wednesday, March 26, 1980, but the merits of the Hotel's petition for vacation of the decree was continued to Friday, March 28, 1980, for hearing. At that time it appeared that the Board of Assessors in Lynn had recommended to the Commissioner pursuant to the provisions of G. L. c. 58, §8 an abatement which would reduce the assessment of the premises for the years in question to $80,000, which coincidentally would be the amount to be paid to the City for unpaid taxes. At a conference relative to the recommendation of the Commissioner took the position that he was unable to authorize the assessors to abate any part of taxes in question since with the dismissal of the appeal to the Appeals Court, title to the property had vested in the City of Lynn. The assessors adhere to their recommendation to the State, but the treasurer has not assented to the present petition for vacation of the decree.

Without considering the correctness of the position of the Commissioner it seems to the Court that the Hotel should not be penalized by the dismissal of its pending appeal. The Board of Assessors of Lynn has made a recommendation to the Commonwealth which should be acted upon prior to the final resolution of the matter before this Court. The Court, however, will not tolerate any dilatory tactics, and the City of Lynn is free to move again for a final decree if there should be any unreasonable delay in the decision by the Commonwealth or the payment by the Hotel of the amount agreed upon in settlement.

In the exercise of my discretion I hereby vacate the decree foreclosing the Hotel's right of redemption.

Decree accordingly.