ALAN KUPELNICK vs. BOSTON RENT EQUITY BOARD & another. [Note 1]

The plaintiff challenges a decision of the Boston rent equity board (board) ordering that the defendant Sheldon has the right to purchase for $51,166 a unit in premises owned by the plaintiff on Glencoe Street in the Brighton section of Boston. The plaintiff appealed the board's decision to the City of Boston Division of the Housing Court Department. There the board successfully moved for summary judgment. We transferred the plaintiff's appeal here on our own motion.

From the docket it appears that the judge considered the summary judgment motion only on the complaint, the answer, and the motion for summary judgment. The plaintiff represented to the judge orally that there were disputes as to material facts. There was before the judge no affidavit, no verified pleading, no deposition, no agreement as to facts, and no answers to interrogatories. A recitation of facts in the motion for summary judgment was not an adequate foundation for allowance of the summary judgment motion. This case was not presented on the record before the board and, therefore, material before the board can provide no support for allowance of the motion for summary judgment. The board was not entitled to summary judgment on the record before the judge. See Godbout v. Cousens, 396 Mass. 254, 263 (1985); Attorney Gen. v. Bailey, 386 Mass. 367, 371, cert. denied sub nom. Bailey v. Bellotti, 459 U.S. 970 (1982); Community Nat'l Bank v. Dawes, 369 Mass. 550, 554 (1976).

We need not reach the issue of the lawfulness of the regulation under which the board's order was entered, a point raised before the judge and considered in our opinion, issued today, in Perry v. Boston Rent Equity Bd., ante 780 (1989).

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The judgment for the board is vacated, and the case is remanded to the Boston Housing Court for further proceedings.

So ordered.