Preview
4
—
Robert N. Meltzer oe -
Attorney At Law
33 Bradford Street
Concord, MA 01742
4 COMMONWEALTH OF MASSACHUSETTS
(978) 254-6289
robmeltzer@aol.com
MIDDLESEX, SS. DISTRICT COURT DEPARTMENT
OF THE TRIAL COURT
WALTHAM DIVISION
CIVIL ACTION NO.: 2151¢ev109
ROBERT J. FAY AND SUSAN A. FAY
Plaintiffs
Vv.
ANSWER, AFFIRMATIVE DEFENSES
SARAH BOLTUCH AND MALDI AND COUNTERCLAIM
KELLICI
Defendants
Now come the Defendants and answer the Complaint as follows:
The Defendants lack sufficient information to admit or deny and calls upon the Plaintiffs
to prove the same.
The Defendants lack sufficient information to admit or deny and calls upon the Plaintiffs
to prove the same.
Admitted
Admitted
The Defendants lack sufficient information to admit or deny and calls upon the Plaintiffs
to prove the same.
Admitted
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DANO “WYOMING * WISCONSIN
Inlotimountaneatesawroupcem
Robert N. Meltzer
Attorney
At Law
33 Bradford Street 4 7. Admitted
Concord, MA 01742
(978) 254-6289
robmeltzer@aol.com
8. Objection on the grounds of vagueness, but denied that a retaining wall was built and
denied that “much” of the ornamental wall was on the Plaintiffs’ property.
9. Denied, as the prior ornamental stone wall was entirely on Defendants’ property.
10. Objection on the grounds that the Defendants are unaware which wall the Plaintiffs are
referring to.
11. Objection on the grounds of vagueness, but denied that a retaining wall was built and
denied that “much” of the ornamental wall was on the Plaintiffs’ property. As to the
balance of the allegations, the Defendants lack sufficient information to admit or deny
the allegations and call upon the Plaintiffs to prove the same.
12. The Defendants lack sufficient information to admit or deny and calls upon the Plaintiffs
to prove the same.
13. The Defendants lack sufficient information to admit or deny and calls upon the Plaintiffs
to prove the same, but admit that the parties reached a settlement in a neighborly manner
by agreeing to move a part of the wall to avoid litigation.
14. Denied that the Defendants made any such unilateral decision.
15. The Defendants lack sufficient information to admit or deny and calls upon the
Plaintiffs to prove the same.
16. Defendants’ admit that they removed a portion of the wall which may or may not have
been on the Plaintiffs’ property and deny that they failed to restore the Plaintiffs’
property.
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Robert N. ‘Meltzer
Attorney At Law
33 Bradford Street q 17. Denied
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(978) 254-6289
robmeltzer@aol.com
18. Denied
19. Denied
20. Answers 1-19 are reaffirmed and restated.
21. The Defendants lack sufficient information to admit or deny and calls upon the Plaintiffs
to prove the same.
22 Denied that the Defendants built a retaining wall and denied that they required
permission of the Plaintiffs, and denied that “much” of the wall was on Plaintiffs’
property.
23 Denied, as the wall was entirely on Defendants’ property.
24. Denied
25 Denied
26 The Defendants lack sufficient information to admit or deny and calls upon the Plaintiffs
to prove the same.
27. Answers 1-26 are reaffirmed and restated.
28 The Defendants lack sufficient information to admit or deny and calls upon the Plaintiffs
to prove the same.
29 Denied that the Defendants built a retaining wall and denied that they required
permission of the Plaintiffs, and denied that “much” of the wall was on Plaintiffs’
property.
30. Denied, as the wall was entirely on Defendants’ property.
3
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Robert N. Meltzer
Attorney At Law
33 Bradford Street q 31. Denied
Concord, MA 01742
(978) 254-6289
robmeltzer@aol.com
32. Denied
33. The Defendants lack sufficient information to admit or deny and calls upon the Plaintiffs
to prove the same.
34. Answers 1-33 are reaffirmed and restated.
35. Denied, as the existing wall and almost all of the replacement wall was on Defendants”
property by survey, and likely all of the wall was on Defendants’ property by the
doctrine of adverse possession.
36. Denied that the Defendants’ removed any of the Plaintiffs’ property.
37. Denied.
38. Answers 1-37 are reaffirmed and restated.
39. Denied, as the existing wall and almost all of the replacement wall was on Defendants’
property by survey, and likely all of the wall was on Defendants’ property by the
doctrine of adverse possession.
40. Denied that the Defendants’ removed any of the Plaintiffs’ property.
41. Denied.
FIRST AFFIRMATIVE DEFENSE
The Plaintiffs have failed to state a cognizable cause of action, and have otherwise failed to
plead sufficiently to satisfy both Mass. R. Civ. P. 8 and Mass. R. Civ. P. 12
SECOND AFFIRMATIVE DEFENSE
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TOAHO “WYOMING = WISCONSIN
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Robert N. Meltzer ~
Attorney At Law
33 Bradford Street 4 The Plaintiffs claims are barred by the settlement of October 11, 2019, which was accepted
Concord, MA 01742
(978) 254-6289
robmeltzer@aol.com.
by the Plaintiffs after consultation with counsel.
THIRD AFFIRMATIVE DEFENSE
The Plaintiffs’ claims are barred by the statute of limitations
FOURTH AFFIRMATIVE DEFENSE
The Plaintiffs’ claims are barred by the doctrine of prior breach by the Plaintiff, which
terminated any and all obligations which may have been held by the Answering Defendant
FIFTH AFFIRMATIVE DEFENSE
The Plaintiffs claims are barred by the doctrine of estoppel, which is known in land use
context as the doctrine of acquiescense
SIXTH AFFIRMATIVE DEFENSE
The Plaintiffs claims are barred by the doctrine of waiver
SEVENTH AFFIRMATIVE DEFENSE
The Plaintiffs claims are barred as any claims which may exist are not yet ripe
EIGHTH AFFIRMATIVE DEFENSE
The Plaintiff's claims are barred as any claims which may exist are moot
NINTH AFFIRMATIVE DEFENSE
The Plaintiff's claims violate Mass. R. Civ. P. 11 and GL c. 231 6F and are otherwise
frivolous or tendered in bad faith
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Robert N. Meltzer SY
Attorney At Law
33 Bradford Street 4 THE DEFENDANTS DEMANDS A TRIAL BY JURY
Concord, MA 01742
(978) 254-6289
robmeltzer@aol.com
COUNTERCLAIM
Plaintiffs in Counterclaim, Sarah Boltuch and Maldi Kellici, bring the following
Counterclaim against Robert and Susan Fay, as Defendants in Counterclaim:
1 On or about October 11, 2019, the Fays accepted a settlement with the Defendants
by which the Defendants agreed to move their wall and slope the property in
exchange for “putting this matter behind us.”
~ a
By action and word, the Fays concurred that by the Defendants’ decision to move
their own wall, the parties were “putting this matter behind us.”
By agreeing to the settlement by which the Defendants agreed to move their wall,
and the Fays agreed that they were “putting this matter behind us,” the Fays were
clearing inducing the Defendants to waive their rights to litigate the validity of their
wall and its placement in order to put the matter behind them.
As the Complaint demonstrates, the Fays were fraudulently inducing the Defendants
to take action and waive rights their rights to litigate the validity of their wall and its
placement.
As a-result of the fraudulent inducement, the Defendants lost the right to.pursue
remedies against surveyors, contractors and others who may have acted negligently,
by waiting until the 3 year statute of limitations passed to file their frivolous lawsuit
against the Defendants.
As aresult of the fraud in the inducement, the Plaintiffs in Counterclaim sustained
losses of at least $5904.47 paid to Dynamic Landscaping & Masonry, Inc., $1800 to
Geronimo Masonry & Landscaping and $2250, for a sum certain of $9954.45.
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Robert N. Meltzer
Attorney At Law
33 Bradford Street
Concord, MA 01742
(978) 254-6289
1 7. The Plaintiffs in Counterclaim are entitled to these sums from the Fays as sums that
robmeltzer@aol.com were waived by the fraudulent settlement induced by the Fays.
WHEREFORE, the Plaintiffs in Counterclaim requests as follows:
1 That judgment be entered against the Defendants in Counterclaim, the Fays.
2 That damages be assessed in an amount to be determined at trial; and
3 Any further relief deemed necessary and appropriate by the Court.
THE PLAINTIFFs INCOUNTERCLAIM DEMAND A TRIAL BY JURY
~ |} - --- — a - ne —
Respectfully Submitted,
iP
Plaintiffs in Counte) laim
By theirattonty/ “0.
CLL /
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Robert N. Meltzer, BBO #564745
The Wheelhouse at the Bradford Mill
33 Bradford Street
Concord, MA 01742
Phone: (978) 254 6289
r.meltzer@mountainstateslawgroup.com
June 22, 2021
CERTIFICATE OF SERVICE
Ihereby certify that on this date I served a copy of the foregoing on all counsel of record
lby mailing the same, postage prepaid, to:
John N. Santangelo
404 Main Street
Sf
Waltham, MA 02452
June 22, 2021
as
The TDAHO
Muna*WYOHNG
Sees * ae uae
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Preview
4 — Robert N. Meltzer oe - Attorney At Law 33 Bradford Street Concord, MA 01742 4 COMMONWEALTH OF MASSACHUSETTS (978) 254-6289 robmeltzer@aol.com MIDDLESEX, SS. DISTRICT COURT DEPARTMENT OF THE TRIAL COURT WALTHAM DIVISION CIVIL ACTION NO.: 2151¢ev109 ROBERT J. FAY AND SUSAN A. FAY Plaintiffs Vv. ANSWER, AFFIRMATIVE DEFENSES SARAH BOLTUCH AND MALDI AND COUNTERCLAIM KELLICI Defendants Now come the Defendants and answer the Complaint as follows: The Defendants lack sufficient information to admit or deny and calls upon the Plaintiffs to prove the same. The Defendants lack sufficient information to admit or deny and calls upon the Plaintiffs to prove the same. Admitted Admitted The Defendants lack sufficient information to admit or deny and calls upon the Plaintiffs to prove the same. Admitted The Motnain States Law Groug DANO “WYOMING * WISCONSIN Inlotimountaneatesawroupcem Robert N. Meltzer Attorney At Law 33 Bradford Street 4 7. Admitted Concord, MA 01742 (978) 254-6289 robmeltzer@aol.com 8. Objection on the grounds of vagueness, but denied that a retaining wall was built and denied that “much” of the ornamental wall was on the Plaintiffs’ property. 9. Denied, as the prior ornamental stone wall was entirely on Defendants’ property. 10. Objection on the grounds that the Defendants are unaware which wall the Plaintiffs are referring to. 11. Objection on the grounds of vagueness, but denied that a retaining wall was built and denied that “much” of the ornamental wall was on the Plaintiffs’ property. As to the balance of the allegations, the Defendants lack sufficient information to admit or deny the allegations and call upon the Plaintiffs to prove the same. 12. The Defendants lack sufficient information to admit or deny and calls upon the Plaintiffs to prove the same. 13. The Defendants lack sufficient information to admit or deny and calls upon the Plaintiffs to prove the same, but admit that the parties reached a settlement in a neighborly manner by agreeing to move a part of the wall to avoid litigation. 14. Denied that the Defendants made any such unilateral decision. 15. The Defendants lack sufficient information to admit or deny and calls upon the Plaintiffs to prove the same. 16. Defendants’ admit that they removed a portion of the wall which may or may not have been on the Plaintiffs’ property and deny that they failed to restore the Plaintiffs’ property. The Mountain States Lav Group? DAHO * WOKING “WISCONSIN ‘wldountatteavgroupeom Robert N. ‘Meltzer Attorney At Law 33 Bradford Street q 17. Denied Concord, MA 01742 (978) 254-6289 robmeltzer@aol.com 18. Denied 19. Denied 20. Answers 1-19 are reaffirmed and restated. 21. The Defendants lack sufficient information to admit or deny and calls upon the Plaintiffs to prove the same. 22 Denied that the Defendants built a retaining wall and denied that they required permission of the Plaintiffs, and denied that “much” of the wall was on Plaintiffs’ property. 23 Denied, as the wall was entirely on Defendants’ property. 24. Denied 25 Denied 26 The Defendants lack sufficient information to admit or deny and calls upon the Plaintiffs to prove the same. 27. Answers 1-26 are reaffirmed and restated. 28 The Defendants lack sufficient information to admit or deny and calls upon the Plaintiffs to prove the same. 29 Denied that the Defendants built a retaining wall and denied that they required permission of the Plaintiffs, and denied that “much” of the wall was on Plaintiffs’ property. 30. Denied, as the wall was entirely on Defendants’ property. 3 The Mouncain cates Law Groug TOAHO "WYOMING “WSCONSIN: ‘elogroutansateteeeup com - ~ Robert N. Meltzer Attorney At Law 33 Bradford Street q 31. Denied Concord, MA 01742 (978) 254-6289 robmeltzer@aol.com 32. Denied 33. The Defendants lack sufficient information to admit or deny and calls upon the Plaintiffs to prove the same. 34. Answers 1-33 are reaffirmed and restated. 35. Denied, as the existing wall and almost all of the replacement wall was on Defendants” property by survey, and likely all of the wall was on Defendants’ property by the doctrine of adverse possession. 36. Denied that the Defendants’ removed any of the Plaintiffs’ property. 37. Denied. 38. Answers 1-37 are reaffirmed and restated. 39. Denied, as the existing wall and almost all of the replacement wall was on Defendants’ property by survey, and likely all of the wall was on Defendants’ property by the doctrine of adverse possession. 40. Denied that the Defendants’ removed any of the Plaintiffs’ property. 41. Denied. FIRST AFFIRMATIVE DEFENSE The Plaintiffs have failed to state a cognizable cause of action, and have otherwise failed to plead sufficiently to satisfy both Mass. R. Civ. P. 8 and Mass. R. Civ. P. 12 SECOND AFFIRMATIVE DEFENSE ‘The Mountain States Law Group? TOAHO “WYOMING = WISCONSIN infoGrouraineteingrovpcom A Robert N. Meltzer ~ Attorney At Law 33 Bradford Street 4 The Plaintiffs claims are barred by the settlement of October 11, 2019, which was accepted Concord, MA 01742 (978) 254-6289 robmeltzer@aol.com. by the Plaintiffs after consultation with counsel. THIRD AFFIRMATIVE DEFENSE The Plaintiffs’ claims are barred by the statute of limitations FOURTH AFFIRMATIVE DEFENSE The Plaintiffs’ claims are barred by the doctrine of prior breach by the Plaintiff, which terminated any and all obligations which may have been held by the Answering Defendant FIFTH AFFIRMATIVE DEFENSE The Plaintiffs claims are barred by the doctrine of estoppel, which is known in land use context as the doctrine of acquiescense SIXTH AFFIRMATIVE DEFENSE The Plaintiffs claims are barred by the doctrine of waiver SEVENTH AFFIRMATIVE DEFENSE The Plaintiffs claims are barred as any claims which may exist are not yet ripe EIGHTH AFFIRMATIVE DEFENSE The Plaintiff's claims are barred as any claims which may exist are moot NINTH AFFIRMATIVE DEFENSE The Plaintiff's claims violate Mass. R. Civ. P. 11 and GL c. 231 6F and are otherwise frivolous or tendered in bad faith The Mountain Sates Lav Grout “Ou = WwiOANG “WECONEN "EAN‘nloGroustaientesawgroupcom Robert N. Meltzer SY Attorney At Law 33 Bradford Street 4 THE DEFENDANTS DEMANDS A TRIAL BY JURY Concord, MA 01742 (978) 254-6289 robmeltzer@aol.com COUNTERCLAIM Plaintiffs in Counterclaim, Sarah Boltuch and Maldi Kellici, bring the following Counterclaim against Robert and Susan Fay, as Defendants in Counterclaim: 1 On or about October 11, 2019, the Fays accepted a settlement with the Defendants by which the Defendants agreed to move their wall and slope the property in exchange for “putting this matter behind us.” ~ a By action and word, the Fays concurred that by the Defendants’ decision to move their own wall, the parties were “putting this matter behind us.” By agreeing to the settlement by which the Defendants agreed to move their wall, and the Fays agreed that they were “putting this matter behind us,” the Fays were clearing inducing the Defendants to waive their rights to litigate the validity of their wall and its placement in order to put the matter behind them. As the Complaint demonstrates, the Fays were fraudulently inducing the Defendants to take action and waive rights their rights to litigate the validity of their wall and its placement. As a-result of the fraudulent inducement, the Defendants lost the right to.pursue remedies against surveyors, contractors and others who may have acted negligently, by waiting until the 3 year statute of limitations passed to file their frivolous lawsuit against the Defendants. As aresult of the fraud in the inducement, the Plaintiffs in Counterclaim sustained losses of at least $5904.47 paid to Dynamic Landscaping & Masonry, Inc., $1800 to Geronimo Masonry & Landscaping and $2250, for a sum certain of $9954.45. The Mounean States Lav Grou AHO "WONG “weecenst QW Robert N. Meltzer Attorney At Law 33 Bradford Street Concord, MA 01742 (978) 254-6289 1 7. The Plaintiffs in Counterclaim are entitled to these sums from the Fays as sums that robmeltzer@aol.com were waived by the fraudulent settlement induced by the Fays. WHEREFORE, the Plaintiffs in Counterclaim requests as follows: 1 That judgment be entered against the Defendants in Counterclaim, the Fays. 2 That damages be assessed in an amount to be determined at trial; and 3 Any further relief deemed necessary and appropriate by the Court. THE PLAINTIFFs INCOUNTERCLAIM DEMAND A TRIAL BY JURY ~ |} - --- — a - ne — Respectfully Submitted, iP Plaintiffs in Counte) laim By theirattonty/ “0. CLL / Lo Robert N. Meltzer, BBO #564745 The Wheelhouse at the Bradford Mill 33 Bradford Street Concord, MA 01742 Phone: (978) 254 6289 r.meltzer@mountainstateslawgroup.com June 22, 2021 CERTIFICATE OF SERVICE Ihereby certify that on this date I served a copy of the foregoing on all counsel of record lby mailing the same, postage prepaid, to: John N. Santangelo 404 Main Street Sf Waltham, MA 02452 June 22, 2021 as The TDAHO Muna*WYOHNG Sees * ae uae com