EMMANUEL N. PAPANICKOLAS and ROSE PAPANICKOLAS, as Trustees of TELECOM PARK TRUST vs. MICHAEL WEISS and ELAINE WEISS, as Trustees of FARM AVENUE TWO LOTS

This action was commenced by plaintiffs Emmanuel N. Papanickolas and Rose Papanickolas, as Trustees of Telcom Park Trust ("the Trustees"), with the filing of their Complaint For Declaratory Judgment, Injunctive Relief And Damages ("the Complaint") on November 22, 2019 against defendants Michael Weiss and Elaine Weiss, as Trustees of Farm Avenue Two Lots Realty Trust ("the Realty Trust"), and Farm Avenue Two Lots, LLC ("the LLC"). In the Complaint, the Trustees seek a declaratory judgment that an express easement over land owned by the Trustees for the benefit of property owned by the Realty Trust has been extinguished, with the result that the Realty Trust has no right to use it (Count I), damages for the Realty Trust's alleged trespasses (Count II), and an injunction (more properly considered a remedy rather than a claim for relief) (Count III).

On February 3, 2020, the parties filed a Stipulation Of Dismissal Without Prejudice as to Michael Weiss and Elaine Weiss and further stipulated that the LLC is the trustee of the Realty Trust. On February 28, 2020, the LLC filed Defendant Farm Avenue Two Lots, LLC's Mass. R. Civ. P. 12 Motion To Dismiss For Failure To State Claims For Relief And Lack Of Subject Matter Jurisdiction ("the Motion") and supporting pleadings. On May 8, 2020, the Trustees filed Plaintiffs' Opposition To Defendant Farm Avenue Two Lots, LLC's Motion To Dismiss For Failure To State A Claim And Lack Of Subject Matter Jurisdiction. The Realty Trust filed a reply on June 8, 2020. The matter was heard by videoconference on June 18, 2020. For the reasons stated on the record on June 18, 2020 and in a memorandum of decision and order of even date with this Judgment, the Motion was allowed.

In accordance with the court's decision, it is hereby

ORDERED, ADJUDGED and DECLARED on Count I of the Complaint that the easement created over Parcel 8-R-1 by the June 1971 Order Of Taking by the Commonwealth of Massachusetts recorded at the Essex South Registry of Deeds at Book 5777, Page 332, for the benefit of the Salem Country Club, Inc. has not been extinguished by abandonment.

It is further

ORDERED that Count I of the Complaint is dismissed with prejudice pursuant to Mass. R. Civ. P. 12(b)(6) and 12(c) for failure to state a claim upon which relief could be granted.

It is further

ORDERED that Count II of the Complaint is dismissed without prejudice pursuant to Mass. R. Civ. P. 12(b)(1) because this court does not have subject matter jurisdiction over it.

It is further

ORDERED and ADJUDGED that this Judgment is a full adjudication of the parties' claims in this case, and all prayers for relief by any party to this action that are not granted in the preceding paragraphs are denied.

It is further

ORDERED that, upon payment of all required fees, this Judgment or a certified copy of it may be filed in the Registry and entered on the margin of all relevant documents.

SO ORDERED.