MISC 20-000302

SEPTEMBER 25, 2020

ESSEX, ss.



The defendants have filed a motion seeking reconsideration of the court's issuance, on September 8, 2020, of a preliminary injunction enjoining the defendants, their agents and others from using any part of Phoenix Row where it is adjacent to their building at 38-42 Washington Street in Haverhill for parking of vehicles or from blocking any part of the way by placement of trash containers or other obstructions, Pursuant to Land Court Rule 9, no response to a motion for reconsideration need be filed by the opposing party, nor is the court required to hold a hearing on such a motion if the motion is denied. Notwithstanding the lack of requirement for a response, the plaintiff filed an opposition, supported by affidavit, and the court held a hearing on the motion on September 24, 2020.

A motion for reconsideration is addressed to the discretion of the motion judge. Audubon Hill Condominium Ass'n v. Community Ass'n Underwriters of America, Inc., 82 Mass. App. Ct. 461 , 466 (2012). To support a motion for reconsideration, the moving party "should specify (1) 'changed circumstances' such as (a) newly discovered evidence or information, or (b) a development of relevant law; or (2) a particular and demonstrable error in the original ruling or decision." Id.

The defendants, claiming lack of sufficient time prior to the hearing on the initial motion for preliminary injunction, seek reconsideration so as to have the court consider two affidavits filed in support of the motion, which the defendants offer to support their anticipated, but not yet pleaded, defense that they have extinguished the plaintiffs' deeded easement rights by adverse possession or by acquisition of an easement by prescription. Specifically, they offer the affidavits of Kim Hosford and Joel Rosen in support of their motion for reconsideration of the court's issuance of injunctive relief. Presumably, the two affidavits are offered as "newly discovered evidence."

It is not clear from the defendants' motion why the evidence offered in the affidavits could not have been offered in a timely manner. "[F]orgotten evidence newly discovered" does not constitute newly discovered evidence for the purpose of reopening a case. Commonwealth v. Duest, 30 Mass. App. Ct. 623 , 628 (1991). That one had not thought to present evidence previously also does not make that evidence "newly discovered evidence." Nelson v. Conservation Comm'n of Wayland, 90 Mass. App. Ct. 133 (2016) (Rule 1:28 Decision). However, even accepting for the purposes of the motion the asserted unavailability of the testimony offered in the two affidavits at the time of the hearing on the initial motion for preliminary injunctive relief, the two affidavits provide insufficient grounds to justify reconsideration of the issuance of the injunction.

At least at this stage of the proceedings, the defendants have not contested that the plaintiff shares with the defendants deeded rights to use of the entire thirty-foot width of Phoenix Row where it is adjacent to both of their properties. Notwithstanding the service of the complaint on the defendants on August 13, 2020, the defendants have yet to file a responsive pleading or otherwise formally assert a defense to the plaintiff's claims. They have suggested that they will assert by way of defense that they have extinguished the plaintiffs' rights in Phoenix Row by adverse possession or by acquisition of an easement by prescription.

In support of this expected defense, they offer the affidavit of Kim Hosford, who asserts in her affidavit that she is, or has been doing business "here," without identifying where "here" is, for five years, and without identifying what five year period she is referring to. She claims that "we were always able to park behind the building." She does not identify the building to which she is referring. The court will not assume it is the building at 38-42 Washington Street.

The defendants also offer the affidavit of Joel Rosen, who, as trustee, was the prior owner of the building at 38-42 Washington Street, and whose family owns or owned the adjacent and nearby buildings at 22-36 Washington Street and 14 Washington Street. Mr. Rosen, an attorney, is careful not to overstate the facts with respect to his personal observations of parking behind and adjacent to the building at 38-42 Washington Street. He states that his father always parked behind the family's building at 14 Washington Street, and that the trucks for the family business were parked behind that building as well. Later, between 1982 and 1991, Mr. Rosen states that 14 Washington Street was sold, and he acquired the adjoining building, presumably 22-36 Washington Street. During this period, he states that his business used the parking spaces parallel to both buildings, including 38-42 Washington Street, but is vague as to exactly what parking took place behind 38-42 Washington Street. For instance, he states that he had "my own parking space" but does not give its location. I infer that Mr. Rosen, a careful attorney, was purposefully vague, and I therefore infer that his own designated parking space was behind the building at 22-36 Washington Street, and not the building at issue in this case. After 1993, when the family business closed, and the building at 22-36 Washington Street was sold, Mr. Rosen was apparently no longer an everyday observer of parking that did or did not take place at 38-42 Washington Street. He states that his tenants used Phoenix Row for parking, but is vague as to the location, extent and frequency of parking behind the building.

The plaintiff submitted the affidavit of Jared Stewart, the president of the plaintiff, in opposition to the defendants' motion for reconsideration. Mr. Stewart claims personal familiarity with Phoenix Row since 2011, when the plaintiff purchased its property abutting Phoenix Row. Mr. Stewart states in his affidavit that when he would come to work in the morning, or leave in the evening, he would occasionally see a car or two parked parallel to the building at 38-42 Washington Street in a manner so as not to block the passageway, and that this parking was "inconsistent." He states that the defendants' recent use of Phoenix Row for parking and the placement of a trash dumpster are well in excess of the occasional" and "inconsistent" use he previously observed.

Mr. Stewart's observations are not inconsistent with Mr. Rosen's observations with respect to recent use of Phoenix Row adjacent to the defendants' building. The affidavits before the court collectively suggest that perhaps some intermittent parking occurred behind the subject building, but at this stage of the proceedings, the evidence before the court is insufficient to constitute the "new evidence" that would be necessary to justify reconsideration of the issuance of the injunction. Mr. Rosen's observations as presented in his affidavit are vague and insufficient to justify a finding that there likely has been use of area at the rear of 38-42 Washington Street for parking on a consistent and regular basis for a continuous period of twenty years. Without more, the affidavits submitted by the defendants do not establish a likelihood that they will succeed on their anticipated adverse possession or prescriptive easement claims, nor have the defendants demonstrated that they will be irreparably harmed by the continued vitality of the injunction issued on September 8, 2020.


For the reasons described above, the defendants' Motion for Reconsideration of Order Granting Preliminary Injunction is DENIED.