Order: Philip J Mazzola Trustee of The Seventeen Wingaersheek Realty Trust vs. O'Brien, John F et al

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                                COMMONWEALTH             OF MASSACHUSETTS

  ESSEX, ss.                                                    SUPERIOR COURT
                                                                CIVIL ACTION
                                                                No. 1677CV01587


         PHILIP J. MAZZOLA, Trustee of the Seventeen Wingaersheck Realty Trust

                                                  vs.
                                  JOHN F. O’BRIEN & another!


                                               ORDER

         John F. O’Brien (“O’Brien”) is before the court seeking dismissal of Philip J. Mazzola,

 Trustee of the Seventeen Wingaersheek Realty Trust’s (“Mazzola”) complaint for declaratory

 relief, misuse, abuse, or overburdening of an easement, private nuisance, and trespass. The

 motion was filed pursuant to Mass. R. Civ. P. 12(b)(6). This court heard arguments from the

 parties on June 6, 2017. After hearing, O’Brien’s motion is DENIED.

         Rule 12(b)(6) allows for dismissal of a complaint when the factual allegations contained

 within it do not suggest plausible entitlement to relief. Jannacchino v. Ford Motor Co., 451

 Mass. 623, 635-636 (2008). Fraelick v. Perkettpr, Inc., 83 Mass. App. Ct. 698, 699-700 (2013).

 The court must accept as true the factual allegations contained in the plaintiff's complaint, and

resolve any reasonable inferences drawn from the plaintiff's well-pleaded complaint in favor of

 the plaintiff. Fraelick, 83 Mass. App. Ct. at 699-700. But factual allegations made in the

 complaint must rise above the level of mere speculation. What is required at the pleading stage is

 “factual allegations plausibly suggesting (not merely consistent with) an entitlement to relief.”

 Jannacchino, 451 Mass. at 636, quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007).


 ' Bonita J. O’Brien
At this stage in the proceedings, Mazzolla has met his burden, All four counts stem from

the same alleged conduct. The conduct has been described in paragraphs 11 — 17 as the use of

“motor vehicles and “all-terrain motor vehicles” at “all hours of the day and night” which

Mazzola claims is inconsistent with the use of the easement at issue in this case, and which has

caused the damage alleged in the complaint. The complaint further alleges in paragraphs 22 — 24

that O’Brien has used the vehicles detailed in the complaint on parts of Mazzola’s property that

is not subject of the easement at issue, and have further moved items form Mazzola’s property.

       For the foregoing reasons, the O’Brien’s motion to dismiss the complaint is DENIED.

                                                                               oo

                                                             Satin Rodriguez Tabit
                                                             Justice of the Superior Court
DATED: June 7, 2017