Home BOSTON PIPE COVERING, INC. vs. RONALD P. ROSATI, JR., & another. [Note 1]

428 Mass. 1018

November 9, 1998

The case was submitted on the papers filed, accompanied by a memorandum of law.

Herbert D. Lewis for the petitioner.

Boston Pipe Covering, Inc. (petitioner), appeals pursuant to S.J.C. Rule 2:21, 421 Mass. 1303 (1995), from the denial of relief by a single justice of this court.

The petitioner, in seeking relief here under G. L. c. 211, s. 3, indicates that it is the defendant in a Superior Court action for monetary damages and that it has taken an appeal from an interlocutory judgment to the Appeals Court. That appeal is reportedly pending. The petitioner states that Rosati and Croteau (respondents) have sent to counsel "Plaintiffs' First Request for Production of Documents in Supplementary Process . . . and . . . First Set of Interrogatories in Supplementary Process." [Note 2] The petitioner contends that the respondents are not entitled to that discovery while the matter is pending before the Appeals Court. The petitioner's motion to strike these pleadings was denied by a Superior Court judge and by a single justice of the Appeals Court. A single justice of this court denied relief after a hearing.

We assume, without deciding, that the motion to strike is interlocutory in the circumstances. Although the petitioner also sought relief from a single justice of the Appeals Court, we treat the appeal as one from the denial by the Superior Court judge because that is the focus of the petitioner's argument to us. Rule 2:21, therefore, is applicable.

We have reviewed the material submitted by the petitioner and have considered the arguments in light of the requirement of rule 2:21 (2) that the petitioner indicate the reasons "why review of the trial court decision cannot adequately be obtained on appeal from any final adverse judgment in the trial court or by other available means." That material, including the references to to the possibility of exposure to contempt, sanctions, or default does not satisfy the petitioner's obligation.

Judgment affirmed.


[Note 1] Robert Croteau.

[Note 2] Bearing the civil action number of the original action.