On August 29, 2018 a
Request,Application
was filed
involving a dispute between
Maddalone, Lucy,
Maddalone, Saverio,
and
Mcnerney, Cynthia F,
Mcnerney, Peter J,
for Equitable Remedies
in the District Court of Essex County.
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us ya
ao
COMMONWEALTH OF MASSACHUSETTS
ESSEX, ss SUPERIOR COURT
CA# 1877CV01262D
SAVERIO MADDALONE and
LUCY MADDALONE,
Plaintiffs
v
PETER J. McNERNEY, and
CYNTHIA F. McNERNEY,
Defendants
DEFENDANT CYNTHIA McNERNEY’S RESPONSE TO
PLAINTIFFS’ REQUESTED FINDINGS OF FACT
1. Undisputed.
2. Undisputed.
Undisputed.
Undisputed.
Undisputed.
6. Undisputed.
7. Undisputed.
8. Undisputed.
Undisputed.
10 Undisputed.
11 Undisputed.
12. Undisputed.
13 Undisputed.
14 Undisputed.
15 Undisputed.
16 Undisputed.
17 Undisputed.
18 Undisputed.
19 Disputed. Prior to the installation of the new boiler in
2007 the McNerneys had not considered one way or the other
whether the basement wall to the exterior was a common area that
could or could not be used for utilities. Common area walls
have numerous openings for dryer vents, plumbing utilities, gas
lines, etc. Testimony of Cynthia McNerney.
20. Disputed. The McNerneys received a general though
undocumented approval to replace their boiler. At that time,
the McNerneys had no idea that their new boiler would require
venting through the wall. When the issue of venting arose
during the installation, Saverio Maddalone was present and
approved the location of the venting. Testimony of Cynthia
McNerney; Contested Ex. D
21. Undisputed.
22. Disputed. Saverio Maddalone approved the placement of
the venting so that the only ‘abutter’ to the west wall did
approve. Undisputed that approval from the Maddalone’s
mortgagee was not obtained.
23. Undisputed.
24. Undisputed.
25. Disputed to the extent the requested finding implies the
McNerneys have ‘enjoyed’ the venting of their boiler through
the common wall. Undisputed that the boiler installed in 2007
has operated continuously (during the heating season) to
provide them heat for their unit.
26. Disputed. There were no such complaints before 2018
Peter McNerney, since deceased, denied there were any such
complaints but obviously is unable to so testify. Testimony
of Cynthia McNerney. He died before his deposition was taken.
The inability to present such a denial by Peter McNerney is
prejudicial to the remaining defendant Cynthia McNerney.
27. Disputed. See Response to #26 above.
28. Disputed.The complaint about the venting of the boiler
in 2018 only came about after a series of unrelated events where
the Maddalones took issue with the McNerneys concerning the
McNerneys alleged controlling of the condominium through Peter
McNerney being the de facto condominium manager. Testimony of
Cynthia McNerney & Uncontested Exhibits #37-42.
29. Disputed. There will be no admissible opinion evidence
that the exhaust venting from the boiler caused either property
damage or any personal injury. Furthermore, the boiler only
ran during heating season, a time when doors and windows would
otherwise be closed. Testimony of Cynthia McNerney.
Uncontested Exhibit #15.
30. Undisputed but tempered by the fact Cynthia McNerney first
observed the steam emanating from the vent on a particularly
cold and damp night when the steam exhaust was far more visible
than usual. Testimony of Cynthia McNerney.
31. Disputed. While Ex. 14 is quoted correctly with Peter
McNerney saying they had “no plan” to change their current use
of the high efficiency boiler, the implication of the McNerneys
making it “clear” they had no such plan is unwarranted. At that
point the McNerneys were trying to figure out why their boiler
replacement in 2007 required venting out the sidewall and while
they had no plan to change the boiler unit they were still
looking at ways to address the Maddalones then recent complaint.
Testimony of Cynthia McNerney.
32. Undisputed.
33. Undisputed.
34. Undisputed.
35. Undisputed.
36. Undisputed.
37. Disputed. The documentation shows the McNerney proposal
to replace the boiler would vent the exhaust up the chimney but
with a ‘fan in the can’
and that there would still be an air
intake vent through the
common basement sidewall, neither of
which were acceptable to the Maddalones. Testimony of Cynthia
McNerney; Testimony of Saverio Maddalone; Uncontested Exhibits
#15 & 21.
38. Undisputed.
39. Disputed. The meeting disintegrated with Lucy Maddalone
yelling at Peter McCarriston before any options for resolution
could be discussed and/or resolved. Testimony of Cynthia
McNerney.
40. Disputed. Testimony of Cynthia McNerney.
41. Disputed. The proposal for the replacement of the boiler,
while allowing the exhaust to vent up the chimney like the prior
boiler, also required an air intake vent and a ‘fan in the can’,
to which the Maddalones objected. Testimony of Cynthia
McNerney.
42. Disputed. The trustee authorization signed by Saverio
Maddalone was never delivered by the Maddalones at that time,
and not until documents were produced during litigation.
Testimony of Cynthia McNerney; Testimony of Saverio Maddalone.
43. Disputed. See #42 above.
44, Disputed. The Maddalones refused to accept the proposal
by McCarriston because it continued to require an air intake
vent and because of the noise potential of a fan in the can.
Testimony of Cynthia McNerney; Testimony of Saverio Maddalone.
45. Disputed. The McNerneys never had a proposal acceptable
to the
Maddalones which could then be taken to the association
for approval. Testimony of Cynthia McNerney; Testimony of
Saverio Maddalone.
46. Disputed. Visible steam when cold and damp, not noxious
gas, is vented through the exhaust. Uncontested Ex. #15.
47. Disputed. See #46 above.
48. Disputed. The Maddalones never agréed to the proposal
which would allow the exhaust to vent up the chimney again.
Testimony of Cynthia McNerney. See also response to #46 above
concerning the allegation of ‘noxious gas’.
49, Disputed. There is no requirement to abate a legal, code
compliant boiler system that does not emit noxious gas and went
uncomplained about for over 10 years.
50. Undisputed.
Sl. Disputed.
52. Disputed.
53. Disputed.
54. Disputed.
55. Undisputed that the McNerneys own the boilers and the vents
but disputed that they constitute a nuisance.
56 Disputed. See #46 & 49 above.
57 Disputed. See #46 & 49 above.
58 Disputed. See #46 & 49 above.
59 Disputed. There was no delay in taking remedial action
as Saverio Maddalone approved the installation of the vents
where they were placed in 2007. The Maddalones also did not
approve the proposed replacement in 2018 as it continued to
require an air intake vent and a fan in the can. Testimony of
Cynthia McNerney.
60. Disputed. Undisputed that the current boiler works as it
is supposed to work, high efficiency and code compliant.
Testimony of Cynthia McNerney; Uncontested Exhibit 15.
61. Disputed. There is no quote or proposal for such work so
that the cost is unknown, as well as who should bear the cost
where the current viable and code compliant system was installed
with no objection from the Maddalones and without complaint for
over 10 years. Testimony of Cynthia McNerney.
62. Disputed. Testimony of Cynthia McNerney.
63. Disputed. The Maddalones rejected the initial reasonable
proposal and never came up with an alternative that would
satisfy them. Testimony of Cynthia McNerney.
64. Disputed.
65. Disputed. The boiler was replaced in 2007 with the
knowledge and general approval of the condominium association
and with the venting placement agreed to by Saverio Maddalone.
Testimony of Cynthia McNerney.
66. Disputed.
67. Disputed.
68. Disputed.
Respectfully Submitted,
Cyn a Me ney, by her attorney,
Ethan Warren, Esq.
BBO# 516680
Law Office of Ethan Warren
794 Long Pond Road
Plymouth, MA 02360
508-224-6400
Ewarrenl417@gmail.com
Document Filed Date
September 09, 2021
Case Filing Date
August 29, 2018
Category
Equitable Remedies
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us ya ao COMMONWEALTH OF MASSACHUSETTS ESSEX, ss SUPERIOR COURT CA# 1877CV01262D SAVERIO MADDALONE and LUCY MADDALONE, Plaintiffs v PETER J. McNERNEY, and CYNTHIA F. McNERNEY, Defendants DEFENDANT CYNTHIA McNERNEY’S RESPONSE TO PLAINTIFFS’ REQUESTED FINDINGS OF FACT 1. Undisputed. 2. Undisputed. Undisputed. Undisputed. Undisputed. 6. Undisputed. 7. Undisputed. 8. Undisputed. Undisputed. 10 Undisputed. 11 Undisputed. 12. Undisputed. 13 Undisputed. 14 Undisputed. 15 Undisputed. 16 Undisputed. 17 Undisputed. 18 Undisputed. 19 Disputed. Prior to the installation of the new boiler in 2007 the McNerneys had not considered one way or the other whether the basement wall to the exterior was a common area that could or could not be used for utilities. Common area walls have numerous openings for dryer vents, plumbing utilities, gas lines, etc. Testimony of Cynthia McNerney. 20. Disputed. The McNerneys received a general though undocumented approval to replace their boiler. At that time, the McNerneys had no idea that their new boiler would require venting through the wall. When the issue of venting arose during the installation, Saverio Maddalone was present and approved the location of the venting. Testimony of Cynthia McNerney; Contested Ex. D 21. Undisputed. 22. Disputed. Saverio Maddalone approved the placement of the venting so that the only ‘abutter’ to the west wall did approve. Undisputed that approval from the Maddalone’s mortgagee was not obtained. 23. Undisputed. 24. Undisputed. 25. Disputed to the extent the requested finding implies the McNerneys have ‘enjoyed’ the venting of their boiler through the common wall. Undisputed that the boiler installed in 2007 has operated continuously (during the heating season) to provide them heat for their unit. 26. Disputed. There were no such complaints before 2018 Peter McNerney, since deceased, denied there were any such complaints but obviously is unable to so testify. Testimony of Cynthia McNerney. He died before his deposition was taken. The inability to present such a denial by Peter McNerney is prejudicial to the remaining defendant Cynthia McNerney. 27. Disputed. See Response to #26 above. 28. Disputed.The complaint about the venting of the boiler in 2018 only came about after a series of unrelated events where the Maddalones took issue with the McNerneys concerning the McNerneys alleged controlling of the condominium through Peter McNerney being the de facto condominium manager. Testimony of Cynthia McNerney & Uncontested Exhibits #37-42. 29. Disputed. There will be no admissible opinion evidence that the exhaust venting from the boiler caused either property damage or any personal injury. Furthermore, the boiler only ran during heating season, a time when doors and windows would otherwise be closed. Testimony of Cynthia McNerney. Uncontested Exhibit #15. 30. Undisputed but tempered by the fact Cynthia McNerney first observed the steam emanating from the vent on a particularly cold and damp night when the steam exhaust was far more visible than usual. Testimony of Cynthia McNerney. 31. Disputed. While Ex. 14 is quoted correctly with Peter McNerney saying they had “no plan” to change their current use of the high efficiency boiler, the implication of the McNerneys making it “clear” they had no such plan is unwarranted. At that point the McNerneys were trying to figure out why their boiler replacement in 2007 required venting out the sidewall and while they had no plan to change the boiler unit they were still looking at ways to address the Maddalones then recent complaint. Testimony of Cynthia McNerney. 32. Undisputed. 33. Undisputed. 34. Undisputed. 35. Undisputed. 36. Undisputed. 37. Disputed. The documentation shows the McNerney proposal to replace the boiler would vent the exhaust up the chimney but with a ‘fan in the can’ and that there would still be an air intake vent through the common basement sidewall, neither of which were acceptable to the Maddalones. Testimony of Cynthia McNerney; Testimony of Saverio Maddalone; Uncontested Exhibits #15 & 21. 38. Undisputed. 39. Disputed. The meeting disintegrated with Lucy Maddalone yelling at Peter McCarriston before any options for resolution could be discussed and/or resolved. Testimony of Cynthia McNerney. 40. Disputed. Testimony of Cynthia McNerney. 41. Disputed. The proposal for the replacement of the boiler, while allowing the exhaust to vent up the chimney like the prior boiler, also required an air intake vent and a ‘fan in the can’, to which the Maddalones objected. Testimony of Cynthia McNerney. 42. Disputed. The trustee authorization signed by Saverio Maddalone was never delivered by the Maddalones at that time, and not until documents were produced during litigation. Testimony of Cynthia McNerney; Testimony of Saverio Maddalone. 43. Disputed. See #42 above. 44, Disputed. The Maddalones refused to accept the proposal by McCarriston because it continued to require an air intake vent and because of the noise potential of a fan in the can. Testimony of Cynthia McNerney; Testimony of Saverio Maddalone. 45. Disputed. The McNerneys never had a proposal acceptable to the Maddalones which could then be taken to the association for approval. Testimony of Cynthia McNerney; Testimony of Saverio Maddalone. 46. Disputed. Visible steam when cold and damp, not noxious gas, is vented through the exhaust. Uncontested Ex. #15. 47. Disputed. See #46 above. 48. Disputed. The Maddalones never agréed to the proposal which would allow the exhaust to vent up the chimney again. Testimony of Cynthia McNerney. See also response to #46 above concerning the allegation of ‘noxious gas’. 49, Disputed. There is no requirement to abate a legal, code compliant boiler system that does not emit noxious gas and went uncomplained about for over 10 years. 50. Undisputed. Sl. Disputed. 52. Disputed. 53. Disputed. 54. Disputed. 55. Undisputed that the McNerneys own the boilers and the vents but disputed that they constitute a nuisance. 56 Disputed. See #46 & 49 above. 57 Disputed. See #46 & 49 above. 58 Disputed. See #46 & 49 above. 59 Disputed. There was no delay in taking remedial action as Saverio Maddalone approved the installation of the vents where they were placed in 2007. The Maddalones also did not approve the proposed replacement in 2018 as it continued to require an air intake vent and a fan in the can. Testimony of Cynthia McNerney. 60. Disputed. Undisputed that the current boiler works as it is supposed to work, high efficiency and code compliant. Testimony of Cynthia McNerney; Uncontested Exhibit 15. 61. Disputed. There is no quote or proposal for such work so that the cost is unknown, as well as who should bear the cost where the current viable and code compliant system was installed with no objection from the Maddalones and without complaint for over 10 years. Testimony of Cynthia McNerney. 62. Disputed. Testimony of Cynthia McNerney. 63. Disputed. The Maddalones rejected the initial reasonable proposal and never came up with an alternative that would satisfy them. Testimony of Cynthia McNerney. 64. Disputed. 65. Disputed. The boiler was replaced in 2007 with the knowledge and general approval of the condominium association and with the venting placement agreed to by Saverio Maddalone. Testimony of Cynthia McNerney. 66. Disputed. 67. Disputed. 68. Disputed. Respectfully Submitted, Cyn a Me ney, by her attorney, Ethan Warren, Esq. BBO# 516680 Law Office of Ethan Warren 794 Long Pond Road Plymouth, MA 02360 508-224-6400 Ewarrenl417@gmail.com