Motion-Secondary: Finkel, Harriet C et al vs. Mohammed A Sheik Also Known As Mohammed A Sheikh

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                                Exhibit 5

COMMONWEALTH OF MASSACHUSETTS

Hampshire, ss. Superior Court Department
of the Trial Court
Civil Action No.

HARRIET C. FINKEL and
STEVEN M. FINKEL,
Plaintiffs

HAMPSHIRE
HE SUPERIOR CouRT

   

Vv.

MOHAMMED A. SHEIK, a/k/a
Mohammed A. Sheikh
Defendant

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MEMORANDUM OF LAW IN SUPPORT OF
PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION

NOW COME the Plaintiffs in the above-entitled action and hereby submit this
* Memorandum of Law in support of their Motion for Preliminary Injunctive Relief.

A Motion for Preliminary Relief is granted where the moving Party demonstrates
that:

1. it is likely to succeed on the merits of the case;

2. it will suffer irreparable harm if the Motion is not granted; and

3. that the anticipated harm to the moving Party outweighs any harm that will
be suffered by the Non-moving Party if relief is granted. GTE Products Corp. v. Stuart,
414 Mass. 721, 722-723 (1993); Packaging Industries Group, Inc. v. Cheney, 380 Mass.
609, 616-617 (1980).

In the present case, the Plaintiffs are likely to succeed on their claim that they
have a right to utilize the driveway between Pearl Street and their property in South

Hadley, Massachusetts on a number of theories.The Plaintiffs are clearly able to demonstrate that they are entitled to an implied
easement across the property. The present property is virtually landlocked as the other
driveway that accesses the property is so dangerous it cannot be used safely. It seems
inconceivable that this parcel would be the subject of any conveyance unless the Parties
intended that it be accessed by some route, in this case, the driveway. Dale v. Bedal, 305
Mass. 102, 25 N.E. 2d 175, (1940). The origin of implied easements must be found in
the presumed intention of the Parties, to be gathered from the language of the instruments
when read in the light of the circumstances attending their execution, the physical
condition of the premises and the knowledge which the Parties had or with which they
are chargeable. Cheever v. Graves, 32 Mass. App. Ct. 601, 606 (1992). Other important
factors are deeds to predecessors in title, recorded plans, and subsequent use by residents
to determine the presumed intention of the Parties. Labounty v. Vickers, 352 Mass. 337,
342, 225 N.E. 2d 333, 338 (1967) (implied easement based on earlier recorded deeds,
plan, and street layout); Rahilly v. Addison, 350 Mass. 660, 661 (1966) (implied easement
based on based on deed, plan, and subsequent use by area residents); Bacon v. Onset Bay
Grove Association, 241 Mass. 417, 423 (1922) (implied easement based on conditions
existing at time of transaction and subsequent use by residents).

Plaintiffs will suffer irreparable harm without injunctive relief. Preliminary
injunctions constitute a remedy that serves as a means to “maintain the status quo until
the merits can be determined”. Thayer Company v. Binnall, 326 Mass. 467, 479 (1950).
It cannot be disputed that the “status quo” is for the Plaintiffs to continue to use the
driveway as it has been used for decades. A shift in that status quo will result in the

Plaintiffs being unable to access the their home safely in a manner that they and theirinvitees have relied upon for decades. Given the Court’s task to “choose the alternative

that will inflict the least probable irreparable harm” this Court should issue a preliminary

injunction restraining the Defendant from interfering with the Plaintiffs’ use of the

driveway until such time as the matter can be heard on the merits. See Westinghouse

Broadcasting Company v. New England Patriot’s Football Club, Inc., 10 Mass. App. Ct.

70, 72 (1980).

SUMMARY

For all of the above reasons, the Court should issue a preliminary injunction

prohibiting the Defendant from in any way interfering with the Plaintiffs’ use of the

driveway until such time as a hearing can be had on the merits, all as prayed for in the

Plaintiffs’ Complaint.

Date:

July13, 2017

The Plaintiffs
Harriet C. Finkel and Steven M. Finkel
By their Attorney

Chul AL Aor LG
Cheryl A. Parker, Esquire

PARKER & O’GRADY
124 College Highway
P.O. Box 249
Southampton, MA 01073
(413) 527-8660

(413) 527-6523 (Fax)
BBO # 542243