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COMMONWEALTH OF MASSACHUSETTS
ESSEX, SS. DEPARTMENT OF TRIAL COURT
SALEM SUPERIOR COURT
CiviL ACTION No. 14 ] 7 WG 0030 2 D
CARLOS M. ROCHA d/b/a TERRY’S OLD FASHIONED ICE) wo
CREAM SHOP, oO
Plaintiff, aS
~
VS.
JOHN A. FAGONE, JR. as TRUSTEE of the J&R REALTY
)
TRUST, and RICHARD F. FAGONE and JOHN A. FAGONE, J oO
ml, 5
Defendants,
and
ALLIED WASTE SERVICES OF MASSACHUSETTS, LLC
D/B/A REPUBLIC SERVICES.
Rule 19 Interested Party.
MEMORANDUM OF LAW IN SUPPORT OF EX PARTE MOTION FOR TEMPORARY
RESTRAINING ORDER
Plaintiff Carlos M. Rocha d/b/a Terry’s Old Fashioned Ice Cream Shop (“Terry’s”)
provides this memorandum of law in support of his ex parte motion for a temporary restraining
order with possible conversion to preliminary injunction. Terry’s leases commercial space to
operate an ice cream shop at 22A Atlantic Avenue, Marblehead, MA 01945 (“the Leased
Premises”) from John A. Fagone, Jr. as Trustee of the J&R Realty Trust (“J&R”). Terry’s seeks a
temporary restraining order against J&R, and John A. Fagone, Jr.’s sons, Richard F. Fagoné
(“Richard”) and John A. Fagone, III (“John III”) to render null and void a “Cease & Desist / No
Trespass” directive to Terry’s waste management firm, Allied Waste Services of Massachusetts,
LLC d/b/a Republic Services (“Republic”). J&R, through Richard, contacted Marblehead Police
on April 13, 2024 and instructed Marblehead Police to enforce the Cease & Desist / No Trespass
notice to Republic. See Verified Complaint (“VC”), at 494-95 and Exhibits W and X. Terry’s has
been unable to dispose of trash for three (3) days and it is harming its business and causing an
unnecessary health/safety situation. The Plaintiff meets all the criteria for the issuance of a
temporary restraining order:
1 Terry’s has a reasonable probability of success on-his claims against J&R, Richard
and John III for wrongful disruption of their trash service and including but not
limited to clairns for damages suffered as a result of the interference with Republic;
There exists a greater public policy issue here because the trash continues to
accumulate due to the actions of J&R. As of the filing of this complaint, J&R is
depriving trash disposal to Terry’s, which has disposed of trash using four (4)
barrels located in the rear of its Leased Premises since September 2012. See VC at
(88. J&R’s act of barring Terry’s vendor, Republic, from serving Terry’s in the
normal course of business is heavy handed tactics meant to intimidate Terry’s - and
part of a longer campaign to get Terry’s to vacate the Leased Premises and break the
lease. See id. at 84, 113 and 135. It is unnecessarily creating a health and
sanitary.hazard and meant to intentionally disrupt Terry’s business.
Terry’s refers, the Court to his Verified Complaint, and incorporates those facts intoythis
Memorandum, for a recitation of the facts leading up to this dispute.
ARGUMENT
In the Verified Complaint, Terry’s has established facts to support the grant of a temporary
restraining order with later conversion to a preliminary injunction. There is.no doubt that Terry’s is
entitled to immediate relief here. J&R has no right to unilaterally block Republic, a waste
management service, from performing its contractual duty to remove trash in the ordinary course of
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business from Terry’s. See VC at 994, Exh. W. J&R has taken unfortunately to scorched earth
tactics to try and intimidate Terry’s for the greater purpose of causing Terry’s to vacate the Leased
Premises. J&R’s sole reason in issuing the “Cease & Desist / No Trespass” order to Republic was
to disrupt Terry’s business. The manrier and method of trash removal that Terry’s has used has
been the same since September 2012 — storing four (4) trash barrels at the rear of the building. VE
at (88, and Exhibit U to VC. There have been no problems with the trash removal in the past.
The TRO requested is emiriently reasonable. An order to J&R that the Cease & Desist / No
“Trespass notice is null and void restores the status quo.
1 The Plaintiff Meet the Applicable Standards of Proof for the Grant of the
Temporary Restraining Order.
Terry’s meets the applicable standards of proof for the-grant of a temporary restraining
order. The standards
of proof necessary to grant the various types of pre-judgment security are
essentially the same: a reasonable likelihood of success on the merits and the reasonable likelihood
of recovery in an amount, including interest and costs, equal to or greater than the amount of pre-
judgment security sought. See Mass. R. Civ. P. 4.1(c) and Mass.R. Civ. P. 4.2(c).
The likelihood of a judgment against the J&R could not be higher, where here Terry’s only
seeks to restore trash service that J&R has unilaterally blocked. . J&R has failed to provide any
evidence or claims to Terry’s that the ceasing of trash service was necessary to avoid harm to
person or property. On the contrary, J&R claims only as of February 27, 2024 that trash be stored
“inside” “pursuant to the terms of the Lease”. VC at 91. This claim is pure pretext. J&R has
acted methodically since the Spring of 2022 to slowly remove several lease benefits of Terry’s to
make it extremely difficult for Terry’s to operate his ice cream shop.'
1 See VC at 163, 64, 68, 83, 91, and Exhibit W to the VC.
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Where J&R has denied Terry’s the ability to store its trash ‘inside the trash room, it.is
unconscionable for J&R to insist that Terry’s store trash inside its Leased Premises where people
eat, and Terry’s prepares icé cream. J&R has allowed this method of trash removal since
September 2012, for approximately fourteen years, there can be no appreciable further harm by
allowing the trash removal to resume as it had in the past. VC at 488 and Exh. U.
In terms of a balance of harms, there’s no question that the abrupt cessation of trash
removal to Terry’s is a greater harm than ordering that J&R’s “Cease & Desist / No Trespass”
notice is null and void. The trash service to Terry’s must be restored immediately to prevent
further harm to Terry’s business.and to remedy a health and safety hazard.
2. Terry’s is Likely to Recover a Judgment.
The temporary restraining order requested by Terry’s is modest. All Terry’s seeks is a
restoration of the status quo before J&R issued its Cease & Desist / No Trespass notice on April 5,
2024. Terry’s business is in danger of unnecessary financial harm, and its patrons and employees
are in danger of physical harm as accumulation of trash will impact their health and well-being.
J&R is likely to argue it is enforcing Paragraph 6(m) of the Lease which states, “Tenant
shall... store all trash and garbage in approved receptacles within the Demised Premises and
cause the regular and sufficient removal of the same;” See VC, Commercial Lease at Exh. A. The
problem with this argument, however, is that J&R previously forced Terry’s to store its garbage
outside for the past fourteen (14) years. In 2012, Terry’s completed a build-out of the Léased
Premises to transform the space from a mens wear retail shop to-an ice cream parlor. See VC at
q4-1s.
As part of that build-out, Terry’s architect designed a trash room specifically so Teny’s had
an exterior closed space, separate from the other Leased Premises, to store garbage. See Exhibit B,
plans, highlighted portion. When Terry’s began operations, J&R inexplicably locked the trash
room and never gave Terry’s further access. See VC at 21. Since that time, Terry’s has stored its
trash, for the past fourteen (14) years outside at the rear of the building.
J&R’s “Cease and Desist” letter contains blatant lies when it states, “/t/he Landlord and the
Marblehead Police Department have repeatedly instructed Rocha to store his trash barrels in the
interior of the leased premises. Déspite these warnings, Rocha continues to store the trash barrels on
the exterior of the Property.” VC at Exh. W. This statement is not true. J&R did not take this 180
degree change in policy until January 22, 2024, or rather, allowed Terry’s 4,132 days to keep its barrels
outside and opted not to enforce Paragraph 6(m) of the Lease.
This recent unilateral measure taken by J&R is just one of-a series of restrictions that have
recently been enacted by this landlotd against Terry’s.” The goal of these restrictions is to intentionally
harm Terry’s business in the hopes that Terry’s closes its doors and vacates the property. John A.
Fagone, Jr.’s advice to Carlos prior to signing the latest lease now rings true. See VC at 929. J&R’s
actions are forcing Terry’s into an untenable situation. Terry’s paid for and constructed a trash room.
See Exhibit B. J&R has barred Terry’s from using that trash room for fourteen (14) years. Now, all of
a sudden after allowing Terry’s to store trash outside, J&R wants the trash stored inside but refuses to
allow Terry’s to use the leased space designed for that use, but yet insists that Terry’s store trash in the
interior of its leased space in close proximity to food service areas and food-preparation areas. This is a
clear move by a landlord seeking to financially harm and disrupt its commercial tenant.
In this situation, J&R has clearly waived its ability to enforce Paragraph 6(m) of the Lease.
While the Lease in question contains the typical “non-waiver” clause at Paragraph 31, Massachusetts
courts considers waiver generally to be a question of fact. See 3311 Lafayette St., LLC v. Fran &
Diane’s LLC, 2017 Mass. App. Div. LEXIS 48, *8, 2017 Mass. ‘App. Div. 164 citing
? See Note 1 above.
1
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Mastrullo v. Ryan, 328 Mass. 621, 624 (1952)( “Whether there was a waiver was a question of
fact.”).
Massachusetts courts have found waiver to exist in similar.circumstances. See Globe
Leather & Shoe Findings, Inc. v. Golburgh, 339 Mass. 380, 382 (1959) (jury warranted. in
finding waiver based on landlord's continued acceptance of rent). It is a “well established principle
that certain actions, although not sufficient to constitute a valid contract. modification, may still
represent a waiver of rights.” Bachorz v. Miller-Forslund, 812 F. Supp. 2d 83, 90 (D. Mass. 2011),
quoting G.L.c. 106, §2A-208(3) (“Although an attempt at modification or recession does not
satisfy the requirements of [this statute], it may operate as a waiver.”)
Here, J&R allowed from September 29, 2012, the day Terry’s opened until January 22,
2024 to storé its trash barrels outside. See VC at [88 and at Exh. U. For a landlord to allow a
tenant to store trash for more than a decade despite what the lease stated could not be a clearer
waiver of enforcement of Paragraph 6 (m): Compounding the action is that Terry’s has a trash
room that J&R has barred it from using. What Terry’s is willing to accept, if the Court is inclined
to order, is that Terry’s will gladly abide by Paragraph 6(m) if it can be ordered to use the trash
room it has constructed and paid for.
3 The Public Policy Issue is Greater Than Any Harm to J&R.
In this instance, the public policy issue of allowing a restaurant / ice cream shop to dispose
of its trash is far greater than any harm that can come to J&R by rendering its “Cease & Desist / No
Trespass” notice null and void. At best, J&R can only claim a de minimis breach of lease, and
moreover, a breach caused by its own actions by barring Terry’s from the trash room highlighted
on Exhibit B to the Verified Complaint. Terry’s requires court relief because J&R’s unilateral acts
are harming Terry’s business and unnecessarily creating a health and human safety hazard.
To.force Terry’s to be without regular trash service for the foreseeable future is an unjust
and irreparable harm.
RELIEF SOUGHT
The relief sought by Terry’s is appropriate under the circumstances:
1. Injunctive Relief
A temporary restraining order/ injunction against J&R, Richard and John HI is needed to
prevent irreparable harm that would occur if Terry’s is forced to go without trash service for an
indefinite period of time. A preliminary injunction can be granted when it is nécessary to protect
the damages remedy. Teradyne v. Mostek Corp, 797 F.2d 43, 53 (1 Cir. 1986). Given that
Terry’s requires trash removal service to safely operate its business, the restoration of trash service
is paramount.
Without a TRO, J&R’s actions unnecessarily risk damage to the health and safety of Terry’s
employees, patrons, not to mention financial damages to Terry’s business. There is a substantial
risk, that without injunctive relief, Terry’s will suffer irreparable harm because of no access to trash
removal services. There is no prejudicé to J&R by granting this motion, as it just restores the
parties to the status quo. See Teradyne, Inc., 797 F.2d at 52 (“a preliminary injunction; designed to
freeze the status quo and protect the damages remedy, is an appropriate form of relief.”).
2. ‘Ex Parte Relief
Tetry’s requires ex parte relief because J&R, as landlord, has enacted in unlawful self-help
by interfering with Terry’s trash removal services. If Terry’s has to wait another 7 to 10 days for
trash-removal services until a full hearing - it risks causing further damage to Terry’s business, and:
the health and safety of Terry’s employees and patrons. Tony's réquest for ex parte relief seeks
only orders to maintain the status quo:
i
a) temporary restraining order to resume trash service to Terry’s, or
~
allow Terry’s to use the trash room within its Leased Premises; and
b) the order stays in place until further hearing or further order of this
Court.
Given the health and safety issues presented by accumulating trash from a commercial
business, the grant of relief on an ex parte basis is wholly appropriate.
CONCLUSION
For the foregoing reasons, Terry’s request that this court endorse the accompanying
proposed order, firston an ex parte basis and temporary basis and then, after hearing with notice,
ona preliminary basis.
Respectfully submitted,
CARLOS M. ROCHA D/B/A TERRYS OLD
FASHIONED ICE CREAM SHOP,
By his attorneys,
/s/ Ryan C. Siden
Ryan C. Siden (BBO #646138)
Laura L. Fitzgerald (BBO #564323)
Siden & Associates, P.C. =
20 Park Plaza, Suite 505
Boston, MA 02116
Email: rsiden@sidenlaw.com
Ifitzgerald@sidenlaw.com
Ph: (617) 423-5999
33
DATED: April 16, 2024
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3. | | COMMONWEALTH OF MASSACHUSETTS ESSEX, SS. DEPARTMENT OF TRIAL COURT SALEM SUPERIOR COURT CiviL ACTION No. 14 ] 7 WG 0030 2 D CARLOS M. ROCHA d/b/a TERRY’S OLD FASHIONED ICE) wo CREAM SHOP, oO Plaintiff, aS ~ VS. JOHN A. FAGONE, JR. as TRUSTEE of the J&R REALTY ) TRUST, and RICHARD F. FAGONE and JOHN A. FAGONE, J oO ml, 5 Defendants, and ALLIED WASTE SERVICES OF MASSACHUSETTS, LLC D/B/A REPUBLIC SERVICES. Rule 19 Interested Party. MEMORANDUM OF LAW IN SUPPORT OF EX PARTE MOTION FOR TEMPORARY RESTRAINING ORDER Plaintiff Carlos M. Rocha d/b/a Terry’s Old Fashioned Ice Cream Shop (“Terry’s”) provides this memorandum of law in support of his ex parte motion for a temporary restraining order with possible conversion to preliminary injunction. Terry’s leases commercial space to operate an ice cream shop at 22A Atlantic Avenue, Marblehead, MA 01945 (“the Leased Premises”) from John A. Fagone, Jr. as Trustee of the J&R Realty Trust (“J&R”). Terry’s seeks a temporary restraining order against J&R, and John A. Fagone, Jr.’s sons, Richard F. Fagoné (“Richard”) and John A. Fagone, III (“John III”) to render null and void a “Cease & Desist / No Trespass” directive to Terry’s waste management firm, Allied Waste Services of Massachusetts, LLC d/b/a Republic Services (“Republic”). J&R, through Richard, contacted Marblehead Police on April 13, 2024 and instructed Marblehead Police to enforce the Cease & Desist / No Trespass notice to Republic. See Verified Complaint (“VC”), at 494-95 and Exhibits W and X. Terry’s has been unable to dispose of trash for three (3) days and it is harming its business and causing an unnecessary health/safety situation. The Plaintiff meets all the criteria for the issuance of a temporary restraining order: 1 Terry’s has a reasonable probability of success on-his claims against J&R, Richard and John III for wrongful disruption of their trash service and including but not limited to clairns for damages suffered as a result of the interference with Republic; There exists a greater public policy issue here because the trash continues to accumulate due to the actions of J&R. As of the filing of this complaint, J&R is depriving trash disposal to Terry’s, which has disposed of trash using four (4) barrels located in the rear of its Leased Premises since September 2012. See VC at (88. J&R’s act of barring Terry’s vendor, Republic, from serving Terry’s in the normal course of business is heavy handed tactics meant to intimidate Terry’s - and part of a longer campaign to get Terry’s to vacate the Leased Premises and break the lease. See id. at 84, 113 and 135. It is unnecessarily creating a health and sanitary.hazard and meant to intentionally disrupt Terry’s business. Terry’s refers, the Court to his Verified Complaint, and incorporates those facts intoythis Memorandum, for a recitation of the facts leading up to this dispute. ARGUMENT In the Verified Complaint, Terry’s has established facts to support the grant of a temporary restraining order with later conversion to a preliminary injunction. There is.no doubt that Terry’s is entitled to immediate relief here. J&R has no right to unilaterally block Republic, a waste management service, from performing its contractual duty to remove trash in the ordinary course of | i business from Terry’s. See VC at 994, Exh. W. J&R has taken unfortunately to scorched earth tactics to try and intimidate Terry’s for the greater purpose of causing Terry’s to vacate the Leased Premises. J&R’s sole reason in issuing the “Cease & Desist / No Trespass” order to Republic was to disrupt Terry’s business. The manrier and method of trash removal that Terry’s has used has been the same since September 2012 — storing four (4) trash barrels at the rear of the building. VE at (88, and Exhibit U to VC. There have been no problems with the trash removal in the past. The TRO requested is emiriently reasonable. An order to J&R that the Cease & Desist / No “Trespass notice is null and void restores the status quo. 1 The Plaintiff Meet the Applicable Standards of Proof for the Grant of the Temporary Restraining Order. Terry’s meets the applicable standards of proof for the-grant of a temporary restraining order. The standards of proof necessary to grant the various types of pre-judgment security are essentially the same: a reasonable likelihood of success on the merits and the reasonable likelihood of recovery in an amount, including interest and costs, equal to or greater than the amount of pre- judgment security sought. See Mass. R. Civ. P. 4.1(c) and Mass.R. Civ. P. 4.2(c). The likelihood of a judgment against the J&R could not be higher, where here Terry’s only seeks to restore trash service that J&R has unilaterally blocked. . J&R has failed to provide any evidence or claims to Terry’s that the ceasing of trash service was necessary to avoid harm to person or property. On the contrary, J&R claims only as of February 27, 2024 that trash be stored “inside” “pursuant to the terms of the Lease”. VC at 91. This claim is pure pretext. J&R has acted methodically since the Spring of 2022 to slowly remove several lease benefits of Terry’s to make it extremely difficult for Terry’s to operate his ice cream shop.' 1 See VC at 163, 64, 68, 83, 91, and Exhibit W to the VC. '| 1 Where J&R has denied Terry’s the ability to store its trash ‘inside the trash room, it.is unconscionable for J&R to insist that Terry’s store trash inside its Leased Premises where people eat, and Terry’s prepares icé cream. J&R has allowed this method of trash removal since September 2012, for approximately fourteen years, there can be no appreciable further harm by allowing the trash removal to resume as it had in the past. VC at 488 and Exh. U. In terms of a balance of harms, there’s no question that the abrupt cessation of trash removal to Terry’s is a greater harm than ordering that J&R’s “Cease & Desist / No Trespass” notice is null and void. The trash service to Terry’s must be restored immediately to prevent further harm to Terry’s business.and to remedy a health and safety hazard. 2. Terry’s is Likely to Recover a Judgment. The temporary restraining order requested by Terry’s is modest. All Terry’s seeks is a restoration of the status quo before J&R issued its Cease & Desist / No Trespass notice on April 5, 2024. Terry’s business is in danger of unnecessary financial harm, and its patrons and employees are in danger of physical harm as accumulation of trash will impact their health and well-being. J&R is likely to argue it is enforcing Paragraph 6(m) of the Lease which states, “Tenant shall... store all trash and garbage in approved receptacles within the Demised Premises and cause the regular and sufficient removal of the same;” See VC, Commercial Lease at Exh. A. The problem with this argument, however, is that J&R previously forced Terry’s to store its garbage outside for the past fourteen (14) years. In 2012, Terry’s completed a build-out of the Léased Premises to transform the space from a mens wear retail shop to-an ice cream parlor. See VC at q4-1s. As part of that build-out, Terry’s architect designed a trash room specifically so Teny’s had an exterior closed space, separate from the other Leased Premises, to store garbage. See Exhibit B, plans, highlighted portion. When Terry’s began operations, J&R inexplicably locked the trash room and never gave Terry’s further access. See VC at 21. Since that time, Terry’s has stored its trash, for the past fourteen (14) years outside at the rear of the building. J&R’s “Cease and Desist” letter contains blatant lies when it states, “/t/he Landlord and the Marblehead Police Department have repeatedly instructed Rocha to store his trash barrels in the interior of the leased premises. Déspite these warnings, Rocha continues to store the trash barrels on the exterior of the Property.” VC at Exh. W. This statement is not true. J&R did not take this 180 degree change in policy until January 22, 2024, or rather, allowed Terry’s 4,132 days to keep its barrels outside and opted not to enforce Paragraph 6(m) of the Lease. This recent unilateral measure taken by J&R is just one of-a series of restrictions that have recently been enacted by this landlotd against Terry’s.” The goal of these restrictions is to intentionally harm Terry’s business in the hopes that Terry’s closes its doors and vacates the property. John A. Fagone, Jr.’s advice to Carlos prior to signing the latest lease now rings true. See VC at 929. J&R’s actions are forcing Terry’s into an untenable situation. Terry’s paid for and constructed a trash room. See Exhibit B. J&R has barred Terry’s from using that trash room for fourteen (14) years. Now, all of a sudden after allowing Terry’s to store trash outside, J&R wants the trash stored inside but refuses to allow Terry’s to use the leased space designed for that use, but yet insists that Terry’s store trash in the interior of its leased space in close proximity to food service areas and food-preparation areas. This is a clear move by a landlord seeking to financially harm and disrupt its commercial tenant. In this situation, J&R has clearly waived its ability to enforce Paragraph 6(m) of the Lease. While the Lease in question contains the typical “non-waiver” clause at Paragraph 31, Massachusetts courts considers waiver generally to be a question of fact. See 3311 Lafayette St., LLC v. Fran & Diane’s LLC, 2017 Mass. App. Div. LEXIS 48, *8, 2017 Mass. ‘App. Div. 164 citing ? See Note 1 above. 1 | | Mastrullo v. Ryan, 328 Mass. 621, 624 (1952)( “Whether there was a waiver was a question of fact.”). Massachusetts courts have found waiver to exist in similar.circumstances. See Globe Leather & Shoe Findings, Inc. v. Golburgh, 339 Mass. 380, 382 (1959) (jury warranted. in finding waiver based on landlord's continued acceptance of rent). It is a “well established principle that certain actions, although not sufficient to constitute a valid contract. modification, may still represent a waiver of rights.” Bachorz v. Miller-Forslund, 812 F. Supp. 2d 83, 90 (D. Mass. 2011), quoting G.L.c. 106, §2A-208(3) (“Although an attempt at modification or recession does not satisfy the requirements of [this statute], it may operate as a waiver.”) Here, J&R allowed from September 29, 2012, the day Terry’s opened until January 22, 2024 to storé its trash barrels outside. See VC at [88 and at Exh. U. For a landlord to allow a tenant to store trash for more than a decade despite what the lease stated could not be a clearer waiver of enforcement of Paragraph 6 (m): Compounding the action is that Terry’s has a trash room that J&R has barred it from using. What Terry’s is willing to accept, if the Court is inclined to order, is that Terry’s will gladly abide by Paragraph 6(m) if it can be ordered to use the trash room it has constructed and paid for. 3 The Public Policy Issue is Greater Than Any Harm to J&R. In this instance, the public policy issue of allowing a restaurant / ice cream shop to dispose of its trash is far greater than any harm that can come to J&R by rendering its “Cease & Desist / No Trespass” notice null and void. At best, J&R can only claim a de minimis breach of lease, and moreover, a breach caused by its own actions by barring Terry’s from the trash room highlighted on Exhibit B to the Verified Complaint. Terry’s requires court relief because J&R’s unilateral acts are harming Terry’s business and unnecessarily creating a health and human safety hazard. To.force Terry’s to be without regular trash service for the foreseeable future is an unjust and irreparable harm. RELIEF SOUGHT The relief sought by Terry’s is appropriate under the circumstances: 1. Injunctive Relief A temporary restraining order/ injunction against J&R, Richard and John HI is needed to prevent irreparable harm that would occur if Terry’s is forced to go without trash service for an indefinite period of time. A preliminary injunction can be granted when it is nécessary to protect the damages remedy. Teradyne v. Mostek Corp, 797 F.2d 43, 53 (1 Cir. 1986). Given that Terry’s requires trash removal service to safely operate its business, the restoration of trash service is paramount. Without a TRO, J&R’s actions unnecessarily risk damage to the health and safety of Terry’s employees, patrons, not to mention financial damages to Terry’s business. There is a substantial risk, that without injunctive relief, Terry’s will suffer irreparable harm because of no access to trash removal services. There is no prejudicé to J&R by granting this motion, as it just restores the parties to the status quo. See Teradyne, Inc., 797 F.2d at 52 (“a preliminary injunction; designed to freeze the status quo and protect the damages remedy, is an appropriate form of relief.”). 2. ‘Ex Parte Relief Tetry’s requires ex parte relief because J&R, as landlord, has enacted in unlawful self-help by interfering with Terry’s trash removal services. If Terry’s has to wait another 7 to 10 days for trash-removal services until a full hearing - it risks causing further damage to Terry’s business, and: the health and safety of Terry’s employees and patrons. Tony's réquest for ex parte relief seeks only orders to maintain the status quo: i a) temporary restraining order to resume trash service to Terry’s, or ~ allow Terry’s to use the trash room within its Leased Premises; and b) the order stays in place until further hearing or further order of this Court. Given the health and safety issues presented by accumulating trash from a commercial business, the grant of relief on an ex parte basis is wholly appropriate. CONCLUSION For the foregoing reasons, Terry’s request that this court endorse the accompanying proposed order, firston an ex parte basis and temporary basis and then, after hearing with notice, ona preliminary basis. Respectfully submitted, CARLOS M. ROCHA D/B/A TERRYS OLD FASHIONED ICE CREAM SHOP, By his attorneys, /s/ Ryan C. Siden Ryan C. Siden (BBO #646138) Laura L. Fitzgerald (BBO #564323) Siden & Associates, P.C. = 20 Park Plaza, Suite 505 Boston, MA 02116 Email: rsiden@sidenlaw.com Ifitzgerald@sidenlaw.com Ph: (617) 423-5999 33 DATED: April 16, 2024