150 MAIN STREET, LLC vs. ARLENE MARTINO.

Petitioner 150 Main Street, LLC (hereinafter “Petitioner”) filed its Petition to Correct Easement Designation (“the S-Petition 2”) on June 28, 2013, seeking to change the legal description of land referred to as a “Way” (hereinafter the “Subject Property”) on a plan and a certificate of title for property owned by Petitioner, and to affirm that the Subject Property is an “easement” for the benefit of Respondent Arlene Martino (hereinafter “Respondent”) as opposed to a public or private way. [Note 1] On September 30, 2013, Respondent filed a Response to the Petition, seeking dismissal of the Petition or, in the alternative, a declaration that the Subject Property retains its description as a “Way”. Status conferences were held on October 22, 2013 and December 10, 2013.

On January 6, 2014, Petitioner filed its Motion for Summary Judgment, together with supporting memorandum and appendix. Respondent filed its Response to Petitioner’s Motion for Summary Judgment on February 3, 2014, together with Affidavits of Respondent Arlene Martino (the “Respondent Affidavit”) and Leonard M. Davidson, Esq. Petitioner filed its Reply in Support of its Motion for Summary Judgment, together with Affidavits of Andrew Browne (the “Browne Affidavit”) and Jesse J. Adelman (the “Adelman Affidavit”), on February 10, 2014. On February 14, 2014, Respondent filed its Response to the Reply of the Petitioner, together with the Affidavit of Nancy Leifer (the “Leifer Affidavit”) and its Motion to Strike the Browne Affidavit and most of the Adelman Affidavit as irrelevant and including hearsay. Petitioner filed its Response to Respondent’s Statement of Additional Material Facts and Opposition to Respondent’s Motion to Strike on February 19, 2014. A Summary Judgment hearing was held on all motions on February 20, 2014, and the matter was taken under advisement.

The parties attended a status conference on June 24, 2014, at which time this court requested that the Town of Wayland (the “Town”) be brought in to discuss the status of the Subject Property. All parties including the Town appeared at a status conference on July 29, 2014, and agreed to discuss settlement. On September 26, 2014, Petitioner filed its First Amended S Petition to Correct Easement Designation and to Consolidate Contiguous Lots. Respondent filed its Answer and Response on October 14, 2014. A decision of today’s date has been issued (the “Decision”). In accordance with the Decision, it is hereby:

ORDERED and ADJUDGED that the Browne Affidavit should not be stricken.

ORDERED and ADJUDGED that Paragraphs 2, 3, 4, 5 and 7 of the Adelman Affidavit should not be stricken.

ORDERED and ADJUDGED that Paragraphs 6 and 8 of the Adelman Affidavit and any attached exhibits and Paragraph 3 of the Leifer Affidavit and any attached exhibits will be stricken on the grounds of hearsay.

ORDERED and ADJUDGED that the Subject Property is not a public way and that any public use of the Subject Property was tantamount to a license revocable by Petitioner at any time.

ORDERED and ADJUDGED that the Land Court Decree dated December 16, 2011, did not make a determination of whether the Subject Property was a private way and the determination of the Subject Property’s status is not barred in the present matter on the basis of issue preclusion.

ORDERED and ADJUDGED that the Subject Property is a private way. ORDERED and ADJUDGED that Petitioner may consolidate any lots included in Petitioner Property (Lots 1, 2, 3, 8, A, B and the Subject Property) except for the Subject Property.

ORDERED and ADJUDGED that Petitioner’s Motion for Summary Judgment is DENIED.

By the court.