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Date Filed 12/22/2023 12:58 PM
Superior Court - Suffolk
Docket Number 2384CV02038
10
COMMONWEALTH OF MASSACHUSETTS
SUFFOLK, ss SUFFOLK SUPERIOR COURT
C.A. NO: 2384CV2038
JASMINE WILSON
Plaintiff,
Vv.
ANGEL ALBELO, MIRIAM BELTRAN and
MASSACHUSETTS PROPERTY INSURANCE
UNDERWRITERS ASSOCIATION
Defendants.
PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION FOR CHANGE OF VENUE
Now comes the Plaintiff, and herein opposes Defendants’ Motion for Change/Transfer of
Venue.
FACTS/BACKGROUND
The Plaintiff, Jasmine Wilson (hereinafter, “Plaintiff’), was and is a tenant of the
Defendants Angel Albelo and Miriam Beltran (hereinafter, “Defendants”). The Defendants were
at all pertinent times insured by Defendant Massachusetts Property Insurance Underwriters
Association (“MPIUA”) which has a principal place of business located at Two Center Plaza,
Boston, MA 02108 — i.e. Suffolk County.
On or about January 18, 2021 the ceiling of the downstairs bathroom of the rental
premises collapsed and mold was exposed. Plaintiff reported this to Defendants. Defendants
failed to remediate the issues in the rental premises exposing the Plaintiff to numerous unsanitary
conditions including extensive exposed mold and leaking sewage and oil. The condition of the
1
Date Filed 12/22/2023 12:58 PM
Superior Court - Suffolk
Docket Number 2384CV02038
premises led to municipal and law enforcement involvement. Notwithstanding various municipal
health/safety/building code violations, Defendants failed to remediate the issues with the
property for at least a year.
Plaintiff suffers from lupus and the prolonged and tortious exposure resulted in
exacerbation of and/or chronic flares of her lupus and extensive respiratory symptoms. Such
symptoms appear permanent and will lead to future medical difficulties and expenses. Pre-suit,
Plaintiff attempted to resolve this dispute with MPIUA but MPIUA refused to make a reasonable
settlement offer.
Upon filing suit, MPIUA communicated an intention to seek to sever and stay the
pending 93A/176D Counts. Plaintiff agreed to stay said Counts pending resolution of the
underlying tort claims.
PERTINENT LAW
Under G.L. c. 223, § 1 an action may be brought where a party resides or has its usual
place of business. G.L. c. 223, § 15 ‘Erroneous Venue’ provides:
If an error in venue is discovered at any stage of the proceedings ofa civil action in the
supreme judicial or superior court, the court may, upon motion of either party, order the
action, with all papers relating thereto, to be removed to the proper county upon terms to
the defendant; and it shall thereupon be entered and prosecuted in the same court for that
county as if it had been originally commenced therein, and all prior proceedings
otherwise regularly taken shall be valid.
“While the issue of venue was a very important matter in the “horse and buggy days,” it
has lost a lot of its importance since the invention of the automobile. These days, it appears that a
party resorts to a challenge to the plaintiff's choice of venue based on which county's potential
jury make-up may be most favorable to his client's case.” Craig v. Cummings, No.
SUCV200903782A, 2012 WL 2381622, at *1 (Mass. Super. May 10, 2012).
ARGUMENT
Date Filed 12/22/2023 12:58 PM
Superior Court - Suffolk
Docket Number 2384CV02038
Defendants have provided no basis for transfer nor have they argued erroneous venue
under G.L. c. 223, § 15. Venue is appropriate in Suffolk County under G.L. c. 223, § 1where
MPIUA resides in and/or has a principal place of business in Suffolk County. Defendants have
not cited a single case or statute to support transfer nor have they provided any evidence to
support their miscellaneous prayer for relief. Plaintiff agreed to stay the 93A/176D counts in the
interests of efficiency and economy notwithstanding the fact that “a stay of action or discovery in
Mass. Gen. Laws c. 93A and 176D claims... is not required by Massachusetts law.” Reardon v.
Carter, No. SUCV200700098, 2007 WL 3261306, at *4 (Mass. Super. Apr. 2, 2007). MPIUA
remains a party to the action and thus venue is appropriate in Suffolk County under G.L. c. 223,
gl.
WHEREFORE, Plaintiff respectfully requests that Defendants’ Motion be DENIED,
together with such other and further relief as this Court finds just.
Respectfully submitted,
The Plaintiff,
By her attorneys,
/s/ Samuel Kennedy-Smith
/s/ Kristin Tucker
Samuel Kennedy-Smith (BBO# 685647)
Kristin Tucker (BBO# 692168)
Duddy Goodwin & Pollard
2 Center Plaza, Suite 610
Boston, MA 02108
sks@dgphim com
kt@dgpfirm.c com
CERTIFICATE OF SERVICE
I hereby certify that, on this December 21, 2023 I served this via email upon the following
Date Filed 12/22/2023 12:58 PM
Superior Court - Suffolk
Docket Number 2384CV02038
John B. Stewart
JOHN B. STEWART, P.C.
73 Chestnut Street, Suite 310A
Springfield, MA 01103
E-mail: TheTrialer@aim.com
_/s/ Samuel Kennedy-Smith
Samuel Kennedy-Smith, Esq.
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Date Filed 12/22/2023 12:58 PM Superior Court - Suffolk Docket Number 2384CV02038 10 COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss SUFFOLK SUPERIOR COURT C.A. NO: 2384CV2038 JASMINE WILSON Plaintiff, Vv. ANGEL ALBELO, MIRIAM BELTRAN and MASSACHUSETTS PROPERTY INSURANCE UNDERWRITERS ASSOCIATION Defendants. PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION FOR CHANGE OF VENUE Now comes the Plaintiff, and herein opposes Defendants’ Motion for Change/Transfer of Venue. FACTS/BACKGROUND The Plaintiff, Jasmine Wilson (hereinafter, “Plaintiff’), was and is a tenant of the Defendants Angel Albelo and Miriam Beltran (hereinafter, “Defendants”). The Defendants were at all pertinent times insured by Defendant Massachusetts Property Insurance Underwriters Association (“MPIUA”) which has a principal place of business located at Two Center Plaza, Boston, MA 02108 — i.e. Suffolk County. On or about January 18, 2021 the ceiling of the downstairs bathroom of the rental premises collapsed and mold was exposed. Plaintiff reported this to Defendants. Defendants failed to remediate the issues in the rental premises exposing the Plaintiff to numerous unsanitary conditions including extensive exposed mold and leaking sewage and oil. The condition of the 1 Date Filed 12/22/2023 12:58 PM Superior Court - Suffolk Docket Number 2384CV02038 premises led to municipal and law enforcement involvement. Notwithstanding various municipal health/safety/building code violations, Defendants failed to remediate the issues with the property for at least a year. Plaintiff suffers from lupus and the prolonged and tortious exposure resulted in exacerbation of and/or chronic flares of her lupus and extensive respiratory symptoms. Such symptoms appear permanent and will lead to future medical difficulties and expenses. Pre-suit, Plaintiff attempted to resolve this dispute with MPIUA but MPIUA refused to make a reasonable settlement offer. Upon filing suit, MPIUA communicated an intention to seek to sever and stay the pending 93A/176D Counts. Plaintiff agreed to stay said Counts pending resolution of the underlying tort claims. PERTINENT LAW Under G.L. c. 223, § 1 an action may be brought where a party resides or has its usual place of business. G.L. c. 223, § 15 ‘Erroneous Venue’ provides: If an error in venue is discovered at any stage of the proceedings ofa civil action in the supreme judicial or superior court, the court may, upon motion of either party, order the action, with all papers relating thereto, to be removed to the proper county upon terms to the defendant; and it shall thereupon be entered and prosecuted in the same court for that county as if it had been originally commenced therein, and all prior proceedings otherwise regularly taken shall be valid. “While the issue of venue was a very important matter in the “horse and buggy days,” it has lost a lot of its importance since the invention of the automobile. These days, it appears that a party resorts to a challenge to the plaintiff's choice of venue based on which county's potential jury make-up may be most favorable to his client's case.” Craig v. Cummings, No. SUCV200903782A, 2012 WL 2381622, at *1 (Mass. Super. May 10, 2012). ARGUMENT Date Filed 12/22/2023 12:58 PM Superior Court - Suffolk Docket Number 2384CV02038 Defendants have provided no basis for transfer nor have they argued erroneous venue under G.L. c. 223, § 15. Venue is appropriate in Suffolk County under G.L. c. 223, § 1where MPIUA resides in and/or has a principal place of business in Suffolk County. Defendants have not cited a single case or statute to support transfer nor have they provided any evidence to support their miscellaneous prayer for relief. Plaintiff agreed to stay the 93A/176D counts in the interests of efficiency and economy notwithstanding the fact that “a stay of action or discovery in Mass. Gen. Laws c. 93A and 176D claims... is not required by Massachusetts law.” Reardon v. Carter, No. SUCV200700098, 2007 WL 3261306, at *4 (Mass. Super. Apr. 2, 2007). MPIUA remains a party to the action and thus venue is appropriate in Suffolk County under G.L. c. 223, gl. WHEREFORE, Plaintiff respectfully requests that Defendants’ Motion be DENIED, together with such other and further relief as this Court finds just. Respectfully submitted, The Plaintiff, By her attorneys, /s/ Samuel Kennedy-Smith /s/ Kristin Tucker Samuel Kennedy-Smith (BBO# 685647) Kristin Tucker (BBO# 692168) Duddy Goodwin & Pollard 2 Center Plaza, Suite 610 Boston, MA 02108 sks@dgphim com kt@dgpfirm.c com CERTIFICATE OF SERVICE I hereby certify that, on this December 21, 2023 I served this via email upon the following Date Filed 12/22/2023 12:58 PM Superior Court - Suffolk Docket Number 2384CV02038 John B. Stewart JOHN B. STEWART, P.C. 73 Chestnut Street, Suite 310A Springfield, MA 01103 E-mail: TheTrialer@aim.com _/s/ Samuel Kennedy-Smith Samuel Kennedy-Smith, Esq.