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COMMONWEALTH OF MASSACHUSETTS
'
: SUPERIOR COURT
DEPARTMENT OF THE
TRIAL COURT
C.A. No.: 14-08312-F
MIDDLESEX, ss
GLENFORD SILVER
Plaintiff
PLAINTIFF’S MEMORANDUM IN SUPPORT IN
ve OPPOSITION TO
DEFENDANT’S MOTION TO DISMISS
KIRGIZ REALTY, INC.
Defendant
|. THE DEFENDANT’S MOTION IS UNTIMELY AND THEREFORE SHOULD BE DENIED
The Defendant was required, by the tracking order, to serve and file the instant Rule 12
Motion almost 2 years ago. (See the Tracking order in this Matter Attached as Exhibit F). It is
therefore untimely and should be denied.
N. THE DEFENDANT CANNOT AVAIL ITSELF OF THE WORKER’S COMPENSATION STATUTE SIMPLY
BY CONVEYING THE PROPERTY
A. THE DEFENDANT CONCLUDES THAT A RECENT TRANSFER OF THE SUBJECT PROPERTY
WITHOUT :
The Defendant's Motion only states that the subject property has been transferred to
the Plaintiff's former employer. In its Motion it explicitly acknowledges that that was done only
recently, during the pendency of this action. (See Plaintiff's Exhibit D). Moreover, a review of the
Defendant’s Exhibit D shows that not only was this transfer done during the pendency of the
action, it was done for only nominal value. The Defendant does not appear to dispute the well-
settled case law that a property owner.owes a duty to maintain its property. Toubiana v.Priestly, 402 Mass. 84, 88-89 :(1988) (citations omitted). Instead, it claims that a subsequent sale
would relieve it of its obligation. Not surprisingly, it cites no authority for this proposition.
The Defendant, via exhibits B and C to its Motion, acknowledges that Yurelo and Kirgiz
are separate entities. It further acknowledges that at the time of the accident, the subject
property was still in the name of the Defendant in this matter. It was not owned by Yurelo until
October 2016 when Defense counsel in this matter filed the deed attached as Exhibit D. Such a
situation is contemplated by G.L. ch. 156C §66 when it states:
“Any recordable instrument purporting to affect an interest in real property, including
without limitation, any deed, lease, notice of lease, mortgage, discharge or release of
mortgage, assignment of mortgage, easement and certificate of fact, executed in the
name of a limited liability company by any person who is identified on the certificate of
organization, as amended, of a domestic limited liability company, or on the application
for registration, as amended, of'a foreign limited liability company, as a manager or as a
person authorized to execute, acknowledge, deliver and record recordable instruments
affecting interests in real property, shall be binding on the limited liability company in
favor of a seller, purchaser, grantor, grantee, lessor, lessee, mortgagor, mortgagee, and
any other person relying in good faith on such instrument, notwithstanding any
inconsistent provisions of the operating agreement, side agreements among the
members or managers, by-laws or rules, resolutions or votes of the limited liability
company.”
The Plaintiff's claim is against the owner of the building. Yurelo cannot claim to have
been the owner of the building as evidenced by the Defendant’s own Exhibits. The Defendant’s
Motion cites no legal authority to wrestle subject matter jurisdiction from this Court through an
11" hour transfer of property.
B. THE DEFENDANT CLAIMS THAT IT IS'HAS NOT BEEN IN BUSINESS SINCE 2009 BUT WAS IN A
JOINT VENTURE AT THE TIME OF THE ACCIDENT.
The Defendant claims that it has not been in operation since 2009. However, it relies on
assertions that it was engaged in a joint Venture with the employer on the date of this accident.
Again, the Defendant cites not precedent or case law for the proposition that a defunct
corporation, that is no longer in business, but poorly maintains a premises it still owns, can enterinto a joint venture with another corporation an avail itself of the exclusivity provision of the
Worker’s Compensation Act.
Moreover, if it were in a joint venture, it would seem to be in violation of G.L. c. 156C
§45(b):
“(b) Upon dissolution and notwithstanding the filing of a certificate of
cancellation pursuant to section 14, a limited liability company may continue
its existence but shall not carry on any business except as necessary to wind
up its affairs or distribute its assets which may include, but shall not be limited
to, prosecuting and defending suits, whether civil, criminal or administrative,
gradually settling and closing the limited liability company's business, disposing
of and conveying the limited liability company's property, discharging or making
reasonable provision for the limited liability company's liabilities and
distributing to members any remaining assets of the limited liability company,
without affecting the liability of members and managers and without imposing
liability ona liquidating trustee.” (emphasis added).
Again, the Defendant appears to want to, at the last possible moment, avoid its obligations to
the Plaintiff through unsupported legal theories and belated transactions which are not permitted by
law.
For the foregoing reasons, the Plaintiff respectfully opposes the Defendant’s Motion.
The Plaintiff,
by His attorney,
Michael D. Keohane, BBO#658556
The Law Office of Michael D. Keohane
50 Congress St.,
#744
Boston, MA 02109
(617) 213-0305
mike@attorneyk.com
February 6, 2017 '
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COMMONWEALTH OF MASSACHUSETTS ' : SUPERIOR COURT DEPARTMENT OF THE TRIAL COURT C.A. No.: 14-08312-F MIDDLESEX, ss GLENFORD SILVER Plaintiff PLAINTIFF’S MEMORANDUM IN SUPPORT IN ve OPPOSITION TO DEFENDANT’S MOTION TO DISMISS KIRGIZ REALTY, INC. Defendant |. THE DEFENDANT’S MOTION IS UNTIMELY AND THEREFORE SHOULD BE DENIED The Defendant was required, by the tracking order, to serve and file the instant Rule 12 Motion almost 2 years ago. (See the Tracking order in this Matter Attached as Exhibit F). It is therefore untimely and should be denied. N. THE DEFENDANT CANNOT AVAIL ITSELF OF THE WORKER’S COMPENSATION STATUTE SIMPLY BY CONVEYING THE PROPERTY A. THE DEFENDANT CONCLUDES THAT A RECENT TRANSFER OF THE SUBJECT PROPERTY WITHOUT : The Defendant's Motion only states that the subject property has been transferred to the Plaintiff's former employer. In its Motion it explicitly acknowledges that that was done only recently, during the pendency of this action. (See Plaintiff's Exhibit D). Moreover, a review of the Defendant’s Exhibit D shows that not only was this transfer done during the pendency of the action, it was done for only nominal value. The Defendant does not appear to dispute the well- settled case law that a property owner.owes a duty to maintain its property. Toubiana v.Priestly, 402 Mass. 84, 88-89 :(1988) (citations omitted). Instead, it claims that a subsequent sale would relieve it of its obligation. Not surprisingly, it cites no authority for this proposition. The Defendant, via exhibits B and C to its Motion, acknowledges that Yurelo and Kirgiz are separate entities. It further acknowledges that at the time of the accident, the subject property was still in the name of the Defendant in this matter. It was not owned by Yurelo until October 2016 when Defense counsel in this matter filed the deed attached as Exhibit D. Such a situation is contemplated by G.L. ch. 156C §66 when it states: “Any recordable instrument purporting to affect an interest in real property, including without limitation, any deed, lease, notice of lease, mortgage, discharge or release of mortgage, assignment of mortgage, easement and certificate of fact, executed in the name of a limited liability company by any person who is identified on the certificate of organization, as amended, of a domestic limited liability company, or on the application for registration, as amended, of'a foreign limited liability company, as a manager or as a person authorized to execute, acknowledge, deliver and record recordable instruments affecting interests in real property, shall be binding on the limited liability company in favor of a seller, purchaser, grantor, grantee, lessor, lessee, mortgagor, mortgagee, and any other person relying in good faith on such instrument, notwithstanding any inconsistent provisions of the operating agreement, side agreements among the members or managers, by-laws or rules, resolutions or votes of the limited liability company.” The Plaintiff's claim is against the owner of the building. Yurelo cannot claim to have been the owner of the building as evidenced by the Defendant’s own Exhibits. The Defendant’s Motion cites no legal authority to wrestle subject matter jurisdiction from this Court through an 11" hour transfer of property. B. THE DEFENDANT CLAIMS THAT IT IS'HAS NOT BEEN IN BUSINESS SINCE 2009 BUT WAS IN A JOINT VENTURE AT THE TIME OF THE ACCIDENT. The Defendant claims that it has not been in operation since 2009. However, it relies on assertions that it was engaged in a joint Venture with the employer on the date of this accident. Again, the Defendant cites not precedent or case law for the proposition that a defunct corporation, that is no longer in business, but poorly maintains a premises it still owns, can enterinto a joint venture with another corporation an avail itself of the exclusivity provision of the Worker’s Compensation Act. Moreover, if it were in a joint venture, it would seem to be in violation of G.L. c. 156C §45(b): “(b) Upon dissolution and notwithstanding the filing of a certificate of cancellation pursuant to section 14, a limited liability company may continue its existence but shall not carry on any business except as necessary to wind up its affairs or distribute its assets which may include, but shall not be limited to, prosecuting and defending suits, whether civil, criminal or administrative, gradually settling and closing the limited liability company's business, disposing of and conveying the limited liability company's property, discharging or making reasonable provision for the limited liability company's liabilities and distributing to members any remaining assets of the limited liability company, without affecting the liability of members and managers and without imposing liability ona liquidating trustee.” (emphasis added). Again, the Defendant appears to want to, at the last possible moment, avoid its obligations to the Plaintiff through unsupported legal theories and belated transactions which are not permitted by law. For the foregoing reasons, the Plaintiff respectfully opposes the Defendant’s Motion. The Plaintiff, by His attorney, Michael D. Keohane, BBO#658556 The Law Office of Michael D. Keohane 50 Congress St., #744 Boston, MA 02109 (617) 213-0305 mike@attorneyk.com February 6, 2017 '