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COMMONWEALTH OF MASSACHUSETT,
BARNSTABLE, ss SUPERIOR COURT —
DOCKET NO. 1372CV00125
RICK YATSENICK & JOAL YATSENICK
PLAINTIFFS
v.
OLD WHARF VILLAGE LLC, CHARLES
EDGAR, DAVID DILLON D/B/A AS /
DILLON REAL ESTATE,
& STACEY CURLEY
DEFENDANTS
$4
PLAINTIFFS RICK YATSENICK AND JOAL YATSENICK’S MOTION IN
e OPPOSITION TO DEFENDANTS’ OLD WHARF VILLAGE LLC & CHARLES
EDGAR’S MOTION TO PRECLUDE TESTIMONY OF PLAINTIFFS’ EXPERT
WITNESS WITH SUPPORTING MEMORANDUM OF LAW
Now comes the Plaintiffs, Rick Yatsenick and Joal Yatsenick (“Plaintiffs”), by their
Attomey Brian K. Galletta, Esq. in the above captioned action with the following Motion in
Opposition to the Defendants’ Old Wharf Village & Charles Edgar’s Motion to Preclude
Testimony of Plaintiffs’ Expert Witness . In Support thereof the Plaintiffs offer the following
Opposition and supporting Memorandum of law as follows:
A
THE PLAINTIFFS HAVE COMPLIED TO THE FULLEST EXTENT POSSIBLE WITH
REGARDS TO DISCLOSURE PURSUANT TO MASS. R. SUP. CT. 30(b)
Massachusetts Superior Court Rule 30B requires that, unless the parties agree or the court
orders otherwise, the parties must include certain information in the pre-trial conference
memorandum relating to any expert that a party expects to call at trial. Parties must now
disclose:
+ the name, address, and qualifications of each expert a party intends to call
« the subject matter on which the expert is expected to testify
+ the substance of all facts and opinions expected
*asummary of the grounds of each expert's opinion, as detailed as would be expected in an
answer to an expert interrogatory.
Information as to any expert set forth in the pre-trial memorandum must be signed by that expert
in accordance with Superior Court Rule 30B. Id. § 1:15.Rules of the Superior Court—Superior
Court Rule 30B, 49 Mass. Prac., Discovery § 1:15.
The Defendants argue that the Plaintiffs Expert, Attorney Martin Loria, failed to disclose
the bases for his opinions within his answers. The Defendants contentions fall short as Attorney
Loria has cited each and every document he will testify about. Specifically, Attorney Loria has
cited the Master Deed, the unit Deed, and the controlling special permits by book and page that
are in question with regards to the issues presented in this case. An examination of Attorney
Loria’s answers state:
“Mr. Loria will identify the subject property’s record title duly recorded in the Barnstable
County Land Court District and that the Condominium Documents specifically state that the
subject property is a““Motel Condominium”. Mr. Loria will further testify that title rundown of
the subject property identifies that:
(A) the Master Deed states under paragraph 9(a):
“USE OF UNITS: The buildings and all Units are intended to be used as a Condominium Motel
in accordance with the by-laws of the Condominium Trust”
(B) the Master Deed also states under paragraph 9(d):
“A Unit may be leased or rented subject to the Town of Dennis Zoning Board of Appeals
Permit Decision in File No. A-1299 & A-1447”
©) Appeals Permit Decision File No A-1447 is duly filed in the Barnstable County Registry
District Land Court bearing Document Number 1,112,020 and dated April 27, 2009 states:
“. . the property will continue to operate as a motel... and . property to remain a motel with
the length of stay requirements subject to the Board of Health Standards”
@) Appeals Permit Decision File No A-1299 is filed recorded in the Barnstable County
Registry District Land Court bearing Document Number 1,057,542 dated December 7, 2006, and
clearly states:
“Applicant...to modify and existing hotel with certain units being purchased for certain
weeks...” .
(E) That the May 2, 2011 special permit case number 2011-5 granted to the subject
property continued to confine the use of unit 204 to that of a motel room.
) That the Deed tendered to the Yatsenicks by the Defendants Old Wharf Village LLC
and Charles Edgar violates the Town of Dennis zoning by-laws.
Mr. Loria will testify that, the Yatsenicks were sold a worthless interest in a commercial motel
that they cannot sell or use; and there is no way for the Yatsenicks to mitigate their damages
because the actions and inactions of the Defendants rendered the title to the property
economically unmarketable. Mr. Loria will further testify that it is his opinion that the
Defendants, having done a reasonable due diligence inquiry of the subject property knew
or should have known that they had no ability to market, sell, or deed the subject property
to the Plaintiffs as being “single family year round residential” property. “ (See ExhibitA,
Rule 30(b) Disclosure of Expert Martin Loria)
Each of the documents stated by Attorney Loria noted in bold supra, are the documents
that Attorney Loria has examined and used in forming his opinion. They include the Master
Deed, the Condominium Documents, the Special Permits, and the Town of Dennis By-laws.
Each of these documents is specifically spelled out in Attorney Loria’s Answer that he used in
applying his expert knowledge of the current Massachusetts case law, statutes, and by-laws as
authority.
The Plaintiffs are unaware of any other “bases” that Attorney Loria could cite. A review
of his CV, shows that he is a distinguished conveyancing attorney. (See ExhibitB, CV of Martin
Loria) Since he is basing his opinion on the same laws and authority that the Court uses, he is
not expected to write an “appellant brief” for the Defendants. To the contrary, in looking at the
exact same documents, the Defendants have repeatedly interpreted them differently then what
the Plaintiffs have.
Specifically, the Defendants have maintained the position that the Plaintiffs were never
tendered a deed where the only permissible use at any time was a motel room. The Plaintiffs
contend that the documents speak for themselves with regards to the permissible use. Attorney
Loria, as an expert has applied the body of knowledge, that being the law as he interprets it to the
particular facts of the instant case See Commonwealth y. Patterson, 445 Mass. 626, 645-648,
840 N.E.2d 12, 26~28 (2005); Commonwealth v. McNickles, 434 Mass. 839, 850, 753 N.E.2d
131, 140 (2001).
Attorney Loria’s conclusion, based on the law is that the Plaintiffs were (1) sold a Motel
room and not a single-family year-round residential Condominium, (2), that the Plaintiffs at no
time could use the property to reside in, (3) that the Plaintiffs could not re-convey or rent the unit
in mitigation from the time the Plaintiffs purchased the Property in June of 2008 right up until
today.
B
THE PLAINTIFFS SEEK TO AID THE COURT IN THE DIFFICULT CONCEPT AND
DISTINCTION BETWEEN ECONOMIC MARKETABLITY AND MARKETABLITY
OF TITLE AND NOTHING INHIBITED THE DEFENDANTS FROM PROFERRING
THEIR OWN EXPERT EXCEPT FOR THEIR DILATORY PRACTICES.
Most lay people have “{nJo inkling of the fine legal distinction “‘between economic lack
of marketability, which concerns conditions that affect the use of land, and title marketability,
which relates to defects affecting legally recognized rights and incidents of ownership ... .”” Lyon
vy.
Duffy, 77 Mass. App. Ct. 860, 866, 934 N.E.2d 831, 836 (2010). In order to put property to any
residential or business use, one must both “have good and sufficient record title” under G.L. 93, §
70, and comply with applicable land use regulation in areas such as zoning, subdivision control,
wetlands protection, septic systems and private wells. The notion of “good and sufficient record
title” becomes meaningless if one cannot use land for its intended purpose, or if an innocent buyer
is ambushed by unexpected prohibitive use regulations. No one would buy such Property, §
2:4.Conveyances, 28 Mass. Prac., Real Estate Law § 2:4 (4th ed.) Lyon v. Duffy, 77 Mass. App.
Ct. 860, 866, 934 N.E.2d 831, 836 (2010).
In the instant case the Plaintiffs retained the services of Attorney Loria before they even
filed this litigation some 5 years ago due to some of the difficult areas of conveyancing law and
5
seek to aid the Court with Attomey Loria’s expertise. Attorney Loria has sat through the
depositions of the Defendants and apprised himself of every aspect of the Plaintiffs case. Nothing
inhibited the Defendants from countering Attormey Loria’s testimony except for their own dilatory
practices of never retaining an Expert, nor properly identifying one in the pre-trial memorandum
done two years ago in August of 2015. Further, nothing inhibited the Defendants from deposing
Attorney Loria as he has been known to the Defendants for over five years.
For the Defendants to now complain, for the very first time, on the eve of the trial that there
is a deficiency in the Plaintiffs’ Expert disclosures is disingenuous,
c.
THE AFFIDAVIT ADVANCED BY DEFENDANTS’ COUNSEL LACKS
CANDOR TO THIS HONORABLE COURT
A review of Counsel for the Defendants’ Affidavit is unfortunate at best and has nothing
to do with the issue of the Plaintiffs’ Expert disclosures. Counsel for the Defendant argues that
somehow because other units sold in the complex, that proves that there is nothing wrong with
the zoning and use of the units. What Defendant’s Counsel fails to disclose to the Court is the
fact that Defendants’ Counsel participated in three of the other unit owners’ depositions and
heard them all testify that they also thought that they had purchased single family year-round
residential condominiums and had no idea that they purchased into a commercial motel venture.
Counsel for the Defense fails further to disclose that it is this litigation alone and the depositions
taken of them by the Plaintiffs that put the unit owners on notice that they too had been duped
into purchasing into a motel. This total lack of candor by Counsel for the Defendants is, at best
disappointing.
Furthermore, the condition of the property as set forth in Defense Counsel’s affidavit,
while nice to know, simply has no bearing on the Plaintiff's Expert Witness 30(b) compliance.
CONCLUSION
WHEREFORE, the Plaintiffs, Rick Yatsenick and Joal Yatsenick respectfully request
this Honorable Court to make findings and rule:
(1) That the Plaintiffs’ Expert, Martin Loria, has fully complied with all disclosures;
(2) That the Defendants’ Motion to Preclude Testimony of Plaintiffs’ Expert Witness be
Denied.
Respectfully submitted
Baio bese
Brian K. Galletta, Esq
B.B.O. #566078
Attomey for the Plaintiff
Rick Yatsenick and Joal Yatsenick
25 Lady Slipper Drive
Plymouth, MA 02360
(508) 591-7303
bkglegal@gmail.com
DATE: February 14, 2018
CERTIFICATE OF SERVICE
Thereby certify that a true copy of the forgoing document was served upon all known parties herein
by causing a copy to be delivered by first class prepaid USPS mail on this 14" day of February
2018,
Beco Late
Brian K. Gal la, Esq.
B.B.O. #566078
Attomey for the Plaintiffs
Rick Yatsenick and Joal Yatsenick
25 Lady Slipper Drive
Plymouth, MA 02360
Phone: (508) 591-7303
Fax: (508) 746-1817
DATE: February 14, 2018 Email: bkglegal@gmail.com
ADDENDUM A
SUPPLEMENTAL RESPONSE TO INTERROGATORY NO. 2
Identify each person whom you expectto call as an expert witness at trial and set forth:
RESPONSE: See attached CV of Martin A. Loria.
the subject matter on which each expert is expected to testify;
RESPONSE: Mr. Loria will testify as to how the zoning and the special permits effect the
subject property of this litigation. Mr. Loria will testify how special permits can become
null and void and how conditions within special permits affect the property. Mr. Loria will
also testify about titles, abstract,. fiens, encumbrances, permits and, how these effect real
property in Massachusetts. Mr. Loria will testify about how a property becomes a
condominium and the distinction between ownership of property as a condominium versus
uses of real property. Mr. Loria will also testify about definition and the distinction between
marketability of title and economic marketabillty of title.
b. the substance of the facts and opinions to which each such expert is expected to testify;
@ RESPONSE: Mr. Loria will identify the subject property's record title duly recorded
in the Bamstable County Land Court District and that the Condominium Documents
specifically state that the subject property Is a “Motel Condominium”. Mr. Lorta will further
testify
that title rundown of the subject property identifles that:
(A) the Master Deed states under paragraph 9(a):
"USE OF UNITS: The buildings and all Units are intended to be used as a Condominium
Motel in accordance with the by-laws of the Condominium Trust”
(B) the Master Deed also states under paragraph 9(d):
EXHIBIT 4
“A Unit may be leased or rented subject to the Town of Dennis Zoning Board of Appeals
Special Permit Decisions in File Numbers A-1299 & A-1447"
(C) Appeals Permit Decision File No A-1447 Is duly filed in the Bamstable County
Registry District Land Court bearing Document Number 1,112,020 and dated March 24,
2009 states:
*,. the property will continue to operaté as a motel... and... property to remain a
motel with the length of stay requirements subject to the Board of Health Standards”
(0) Appeals Permit Decision File No A-1299 is filed in the Bamstable County
Registry District Land Court bearing Document Number 1,057,542 dated December 7,
2006, and clearly states:
“Applicant...to modify and existing hotel with certain units being purchased for certain
weeks...” .
€) That the May 2, 2011 special permit case number 2011-5 granted to the subject
property continued to confine the use of unit 204 to that of a motel room,
(F) That the Deed tendered to the Yatsenicks by the Defendants Old Wharf Village
LLC and Charles Edger violates the Town of Dennis zoning by-laws.
Mr. Loria will testify that, the Yatsenicks were sold a worthless interest in a commercial
motel that they cannot sell or use; and there is no way for the Yatsenicks to mitigate their
damages because the actions and Inactions of the Defendants rendered the title to the
property economically unmarketable, Mr. Loria will further testify that It his opinion that
the Defendants, having done a reasonable due diligence inquiry of the subject property
knew or should have known that they had no ability to market, sell, or deed the subject
property
to the Plaintiffs as being “single family year round residential” property.
C. Asummary of the grounds for each such opinion.
RESPONSE: Mr. Loria’s grounds for basing his opinions will be based upon the
application of (1) current judicial interpretations; (2) standard accepted Massachusetts
po
conveyancing practices; (3) the record title of the subject property; and (4) the subject
property's permits on file with the Town of Dennis.
c TIO! T
| hereby certify that disclosure contained in these answers to interrogatories accurately states
the subject matter(s) on which | am expected to testify, the substance of the facts and opinions
Te
to which | am expected to testify, and a summary of the grounds for each opinion to which tam
e
Signature of Expert
MARTIN LORIA
Printed Name of Expert
tee
MARTIN A. LORIA £
‘atin A Lia ajprtner at Adelion Lora & Welainn, P.C,, concontstingin real estate fam,
includingreal estate atid acquisition matters, title insurance and the identification, -
evaluation and resolution of title issues. His practice also involves Jender representation relative
foresidential and commercial witness consulfation in the Massachusetts Land
Court, Superior Court and Probate-Court and he has acted as counsel to various city, state and
federal agencies and housing organizations. An approved Land Court examiner, hp
has served as President of the Real-Estate Bar President ofthe Abstract Club and has
lectured and written for MCLE, Suffolk Law School, the Real Bstate Bar Association and real
estate and banking groups and hes been a contributing author to Crocker’s Notes on Common
Forms and a member of the Land Court Guidelines Committee and was seleoted as “Best
Lawyer” in real estate and “Super Lawyer” by Boston Magazine, He is a graduate of State
University of New York at Albany and Suffolk University Law School.
Recent
Publications
and Lectnreg
2011 MCLE ~ How to Read a Tifle Abstract
2008 REBA Spring Conference — Defending Borrowers in the Foreclosure Process
2005 MCLE — Advanced Real Estate Topics for the Paralegal
2004 MCLE — Hot Topics for Real Estate Paralegals
Education
State University of New York at Albany, Albany, New York
BA, 1972
Suffolk University Law School, Boston, Massachusetts
5D., 1975 -
Pre
1976to 1978 Kargman
& Kargman
Boston, Massachusetts
1978 to. 1982 New States Counsel
Lawyers Title Insurance Corporation
Boston, Massachusetts
1983 to 2000 Adelson, Golden, Loria & Simons, P.C.
(formerly Adelson, Golden & Loria, P.C.)
Boston, Massachusetts
2001
to 2002 Cherwin, Theise, Adelson & Loria, LLP
Boston, Massachusetts
2003-Present Adelson Loria & Weisman, P.C.
Boston, Massachusetts
——
ree wee
Massacbusettd
Bar Association
Boston Bar Association
Real Bstate Bar Association —President
— 1991, De tics, Ti
National Affairs (
‘New England Land Title Association
Abstract Club-President, Board of Directors
a. see
. .
‘MARTIN A.LORIA -
£
“pai A Linas apstner at Adokon Lovia 6 Weinsmn, PC. connnatingin cel eset,
including
real estate development
arid matters,title insurance and the
* evalustion
and resolution of fitle issues. His pusotice also involves lender representation relative
fo residential
and commercial. witness
consultation in the Massachusetts
Cae aeer ee cad non-profit hausing eguntantions An approved wed Cow state.and
federal, Land Court examiner, he
Tae erat ident of tua Real Sves Bar
Bar Assodition,Precfont ithe About Chak et tas
* feoturedl and weitten for MCLE, Bt ‘Law Sclivol, the Real ‘Botate Bar Assovitfion‘and
real
estate and banking groups and hes been a contributing author to Crocker’a Notes on Corhmon.
Forms and a member of the Lani Court Guidelines Committee and was seleoted'as “Best
Lowyer” in real estate and “Super Lawyer” by Boston Magazine. He is a graduateof State
University of New York at Albany and Suffell Univerety Lave Schoo.
2011 MCLE — How to Read e Title Abstract
2008 REBA Spring Conference— Definding Brows inthe Foret ibe,
MCLE—— Advanced Real Estats Topics for the Parilegal
MCLE — Hot Topics for Real Estate Paralogals
Education
State University of New York atAlbeny, ‘Abou, New York
BA, 1972
Se nay Law ih os Mats
3D, 1975
ance
1976 to 1978 Kargman & Kargman
Boston, Massachusetis
1978
to. 1982 New States Counsel
Lawyers Title-Insurance Corposation
Boston, Massachusetts
1983 to.2000 Adelson, Golden, Loria & Simons, P.C.
(formerly Adelson, Golden & Loria, P.C:)
Boston, Massachusetts
2001
to 2002 Cherwin, Theise, Adeléon & Loria, LLP
2003-Present Adelson Loria & Weisman, P.C,
Boston, Massachusetts
XHIBIT s™
OS
——
sssenee meee meee
qe
~ Momhenitiing
Masgadhusetts
Bar Assoviation
Boston Bar Association
Real Hetate Bar Association ~ President 1991, Boaid of Direttors, Lepistation, Title
Standards, National Affairs
New England Land Title Association. ©
_Abstrant Club-President, Bosrd ofDivéstore
eet
ed
"
COMMONWEALTH OF MASSACHUSETTS
BARNSTABLE, ss SUPERIOR COURT
DOCKET NO. 1372CV00125
RICK YATSENICK & JOAL YATSENICK
PLAINTIFFS
v.
OLD WHARF VILLAGE LLC, CHARLES
EDGAR, DAVID DILLON D/B/A AS
DILLON REAL ESTATE,
& STACEY CURLEY
DEFENDANTS
PLAINTIFFS’ REQUEST FOR A HEARING ON THEIR MOTION IN OPPOSITION
TO THE DEFENDANTS’ MOTION TO PRECLUDE TESTIMONY OF PLAINTIFFS’
EXPERT WITNESS
Now comes the Plaintiffs in the above captioned action by their Attomey, Brian K. Galletta and
respectfully requests this Honorable Court for a Hearing on their Motion in Opposition of
Defendants’ Motion to preclude testimony of Plaintiffs’ Expert Witness.
Respectfully Submitted,
Bren or
Brian K. Gallett
B.B.O. #566078
Attorney for the Plaintiffs
Rick Yatsenick and Joal Yatsenick
25 Lady Slipper Drive
Plymouth, MA 02360
Phone: (508) 591-7303
Fax: (508) 746-1817
DATE: February 14, 2018 Email: bkglegal@gmail.com
CERTIFICATE OF SERVICE
Thereby certify that a true copy of the forgoing document was served upon all known parties herein
by causing a copy to be delivered by first class prepaid USPS mail on this 14" day of February
2018.
Bran:
ote
Brian K. Galletta, Esq.
B.B.O. #566078
Attomey for the Plaintiffs
Rick Yatsenick and Joal Yatsenick
25 Lady Slipper Drive
Plymouth, MA 02360
Phone: (508) 591-7303
Fax: (508) 746-1817
DATE: February 14, 2018 Email: bkglegal@gmail.com
yyy
COMMONWEALTH OF MASSACHUSETTS
BARNSTABLE, ss SUPERIOR COURT DEPARTMENT
Civil Action No. BACV2013-00125
RICK YATSENICK & JOAL YATSENICK,
Plaintiffs,
Vv.
OLD WHARF VILLAGE, LLC, CHARLES
EDGAR, DAVID DILLAN d/b/a as
DILLON REAL ESTATE & STACEY CURLEY
Defendants.
@
AFFIDAVIT OF COMP! (CE WITH RULE 9A
I, Djuna Perkins being duly swom to hereby state that on or about February 6, 2018 1 served
a copy of Defendants’ Motion to Preclude Testimony of Plaintiffs’ Expert Witness, in compliance
with Rule 9. Ireceived a copy of Opposition of Plaintiffs Rick Yatsenick and Joal Yatsenick Motion
in Opposition to Defendants’ Old Wharf Village LLC & Charles Edgar’s Motion to Preclude
Testimony of Plaintiffs’ Expert Witness on February 16, 2018 as required under Rule 9(A)(b)(2).
Signed under the pains and penalties of perjury this ue day of February 2018.
Djuna Perkins( )
CERTIFICATE OF SERVICE
I hereby certify that I served a copy of the foregoing Defendants’ Motion to Preclude
Testimony of Plaintiffs’ Expert Witness, upon:
Douglas A. Troyer, Esquire
Moriarty, Troyer & Malloy, LLC
30 Braintree Hill Office Park, Suite 205
Braintree, MA 02184
Fax: 781-817-4910
Brian K. Galleta, Esquire
25 Lady Slipper Drive
Plymouth, MA 02360
@ Fax: 508-746-1817
ON
0
Djuna ifis Alig
Preview
COMMONWEALTH OF MASSACHUSETT, BARNSTABLE, ss SUPERIOR COURT — DOCKET NO. 1372CV00125 RICK YATSENICK & JOAL YATSENICK PLAINTIFFS v. OLD WHARF VILLAGE LLC, CHARLES EDGAR, DAVID DILLON D/B/A AS / DILLON REAL ESTATE, & STACEY CURLEY DEFENDANTS $4 PLAINTIFFS RICK YATSENICK AND JOAL YATSENICK’S MOTION IN e OPPOSITION TO DEFENDANTS’ OLD WHARF VILLAGE LLC & CHARLES EDGAR’S MOTION TO PRECLUDE TESTIMONY OF PLAINTIFFS’ EXPERT WITNESS WITH SUPPORTING MEMORANDUM OF LAW Now comes the Plaintiffs, Rick Yatsenick and Joal Yatsenick (“Plaintiffs”), by their Attomey Brian K. Galletta, Esq. in the above captioned action with the following Motion in Opposition to the Defendants’ Old Wharf Village & Charles Edgar’s Motion to Preclude Testimony of Plaintiffs’ Expert Witness . In Support thereof the Plaintiffs offer the following Opposition and supporting Memorandum of law as follows: A THE PLAINTIFFS HAVE COMPLIED TO THE FULLEST EXTENT POSSIBLE WITH REGARDS TO DISCLOSURE PURSUANT TO MASS. R. SUP. CT. 30(b) Massachusetts Superior Court Rule 30B requires that, unless the parties agree or the court orders otherwise, the parties must include certain information in the pre-trial conference memorandum relating to any expert that a party expects to call at trial. Parties must now disclose: + the name, address, and qualifications of each expert a party intends to call « the subject matter on which the expert is expected to testify + the substance of all facts and opinions expected *asummary of the grounds of each expert's opinion, as detailed as would be expected in an answer to an expert interrogatory. Information as to any expert set forth in the pre-trial memorandum must be signed by that expert in accordance with Superior Court Rule 30B. Id. § 1:15.Rules of the Superior Court—Superior Court Rule 30B, 49 Mass. Prac., Discovery § 1:15. The Defendants argue that the Plaintiffs Expert, Attorney Martin Loria, failed to disclose the bases for his opinions within his answers. The Defendants contentions fall short as Attorney Loria has cited each and every document he will testify about. Specifically, Attorney Loria has cited the Master Deed, the unit Deed, and the controlling special permits by book and page that are in question with regards to the issues presented in this case. An examination of Attorney Loria’s answers state: “Mr. Loria will identify the subject property’s record title duly recorded in the Barnstable County Land Court District and that the Condominium Documents specifically state that the subject property is a““Motel Condominium”. Mr. Loria will further testify that title rundown of the subject property identifies that: (A) the Master Deed states under paragraph 9(a): “USE OF UNITS: The buildings and all Units are intended to be used as a Condominium Motel in accordance with the by-laws of the Condominium Trust” (B) the Master Deed also states under paragraph 9(d): “A Unit may be leased or rented subject to the Town of Dennis Zoning Board of Appeals Permit Decision in File No. A-1299 & A-1447” ©) Appeals Permit Decision File No A-1447 is duly filed in the Barnstable County Registry District Land Court bearing Document Number 1,112,020 and dated April 27, 2009 states: “. . the property will continue to operate as a motel... and . property to remain a motel with the length of stay requirements subject to the Board of Health Standards” @) Appeals Permit Decision File No A-1299 is filed recorded in the Barnstable County Registry District Land Court bearing Document Number 1,057,542 dated December 7, 2006, and clearly states: “Applicant...to modify and existing hotel with certain units being purchased for certain weeks...” . (E) That the May 2, 2011 special permit case number 2011-5 granted to the subject property continued to confine the use of unit 204 to that of a motel room. ) That the Deed tendered to the Yatsenicks by the Defendants Old Wharf Village LLC and Charles Edgar violates the Town of Dennis zoning by-laws. Mr. Loria will testify that, the Yatsenicks were sold a worthless interest in a commercial motel that they cannot sell or use; and there is no way for the Yatsenicks to mitigate their damages because the actions and inactions of the Defendants rendered the title to the property economically unmarketable. Mr. Loria will further testify that it is his opinion that the Defendants, having done a reasonable due diligence inquiry of the subject property knew or should have known that they had no ability to market, sell, or deed the subject property to the Plaintiffs as being “single family year round residential” property. “ (See ExhibitA, Rule 30(b) Disclosure of Expert Martin Loria) Each of the documents stated by Attorney Loria noted in bold supra, are the documents that Attorney Loria has examined and used in forming his opinion. They include the Master Deed, the Condominium Documents, the Special Permits, and the Town of Dennis By-laws. Each of these documents is specifically spelled out in Attorney Loria’s Answer that he used in applying his expert knowledge of the current Massachusetts case law, statutes, and by-laws as authority. The Plaintiffs are unaware of any other “bases” that Attorney Loria could cite. A review of his CV, shows that he is a distinguished conveyancing attorney. (See ExhibitB, CV of Martin Loria) Since he is basing his opinion on the same laws and authority that the Court uses, he is not expected to write an “appellant brief” for the Defendants. To the contrary, in looking at the exact same documents, the Defendants have repeatedly interpreted them differently then what the Plaintiffs have. Specifically, the Defendants have maintained the position that the Plaintiffs were never tendered a deed where the only permissible use at any time was a motel room. The Plaintiffs contend that the documents speak for themselves with regards to the permissible use. Attorney Loria, as an expert has applied the body of knowledge, that being the law as he interprets it to the particular facts of the instant case See Commonwealth y. Patterson, 445 Mass. 626, 645-648, 840 N.E.2d 12, 26~28 (2005); Commonwealth v. McNickles, 434 Mass. 839, 850, 753 N.E.2d 131, 140 (2001). Attorney Loria’s conclusion, based on the law is that the Plaintiffs were (1) sold a Motel room and not a single-family year-round residential Condominium, (2), that the Plaintiffs at no time could use the property to reside in, (3) that the Plaintiffs could not re-convey or rent the unit in mitigation from the time the Plaintiffs purchased the Property in June of 2008 right up until today. B THE PLAINTIFFS SEEK TO AID THE COURT IN THE DIFFICULT CONCEPT AND DISTINCTION BETWEEN ECONOMIC MARKETABLITY AND MARKETABLITY OF TITLE AND NOTHING INHIBITED THE DEFENDANTS FROM PROFERRING THEIR OWN EXPERT EXCEPT FOR THEIR DILATORY PRACTICES. Most lay people have “{nJo inkling of the fine legal distinction “‘between economic lack of marketability, which concerns conditions that affect the use of land, and title marketability, which relates to defects affecting legally recognized rights and incidents of ownership ... .”” Lyon vy. Duffy, 77 Mass. App. Ct. 860, 866, 934 N.E.2d 831, 836 (2010). In order to put property to any residential or business use, one must both “have good and sufficient record title” under G.L. 93, § 70, and comply with applicable land use regulation in areas such as zoning, subdivision control, wetlands protection, septic systems and private wells. The notion of “good and sufficient record title” becomes meaningless if one cannot use land for its intended purpose, or if an innocent buyer is ambushed by unexpected prohibitive use regulations. No one would buy such Property, § 2:4.Conveyances, 28 Mass. Prac., Real Estate Law § 2:4 (4th ed.) Lyon v. Duffy, 77 Mass. App. Ct. 860, 866, 934 N.E.2d 831, 836 (2010). In the instant case the Plaintiffs retained the services of Attorney Loria before they even filed this litigation some 5 years ago due to some of the difficult areas of conveyancing law and 5 seek to aid the Court with Attomey Loria’s expertise. Attorney Loria has sat through the depositions of the Defendants and apprised himself of every aspect of the Plaintiffs case. Nothing inhibited the Defendants from countering Attormey Loria’s testimony except for their own dilatory practices of never retaining an Expert, nor properly identifying one in the pre-trial memorandum done two years ago in August of 2015. Further, nothing inhibited the Defendants from deposing Attorney Loria as he has been known to the Defendants for over five years. For the Defendants to now complain, for the very first time, on the eve of the trial that there is a deficiency in the Plaintiffs’ Expert disclosures is disingenuous, c. THE AFFIDAVIT ADVANCED BY DEFENDANTS’ COUNSEL LACKS CANDOR TO THIS HONORABLE COURT A review of Counsel for the Defendants’ Affidavit is unfortunate at best and has nothing to do with the issue of the Plaintiffs’ Expert disclosures. Counsel for the Defendant argues that somehow because other units sold in the complex, that proves that there is nothing wrong with the zoning and use of the units. What Defendant’s Counsel fails to disclose to the Court is the fact that Defendants’ Counsel participated in three of the other unit owners’ depositions and heard them all testify that they also thought that they had purchased single family year-round residential condominiums and had no idea that they purchased into a commercial motel venture. Counsel for the Defense fails further to disclose that it is this litigation alone and the depositions taken of them by the Plaintiffs that put the unit owners on notice that they too had been duped into purchasing into a motel. This total lack of candor by Counsel for the Defendants is, at best disappointing. Furthermore, the condition of the property as set forth in Defense Counsel’s affidavit, while nice to know, simply has no bearing on the Plaintiff's Expert Witness 30(b) compliance. CONCLUSION WHEREFORE, the Plaintiffs, Rick Yatsenick and Joal Yatsenick respectfully request this Honorable Court to make findings and rule: (1) That the Plaintiffs’ Expert, Martin Loria, has fully complied with all disclosures; (2) That the Defendants’ Motion to Preclude Testimony of Plaintiffs’ Expert Witness be Denied. Respectfully submitted Baio bese Brian K. Galletta, Esq B.B.O. #566078 Attomey for the Plaintiff Rick Yatsenick and Joal Yatsenick 25 Lady Slipper Drive Plymouth, MA 02360 (508) 591-7303 bkglegal@gmail.com DATE: February 14, 2018 CERTIFICATE OF SERVICE Thereby certify that a true copy of the forgoing document was served upon all known parties herein by causing a copy to be delivered by first class prepaid USPS mail on this 14" day of February 2018, Beco Late Brian K. Gal la, Esq. B.B.O. #566078 Attomey for the Plaintiffs Rick Yatsenick and Joal Yatsenick 25 Lady Slipper Drive Plymouth, MA 02360 Phone: (508) 591-7303 Fax: (508) 746-1817 DATE: February 14, 2018 Email: bkglegal@gmail.com ADDENDUM A SUPPLEMENTAL RESPONSE TO INTERROGATORY NO. 2 Identify each person whom you expectto call as an expert witness at trial and set forth: RESPONSE: See attached CV of Martin A. Loria. the subject matter on which each expert is expected to testify; RESPONSE: Mr. Loria will testify as to how the zoning and the special permits effect the subject property of this litigation. Mr. Loria will testify how special permits can become null and void and how conditions within special permits affect the property. Mr. Loria will also testify about titles, abstract,. fiens, encumbrances, permits and, how these effect real property in Massachusetts. Mr. Loria will testify about how a property becomes a condominium and the distinction between ownership of property as a condominium versus uses of real property. Mr. Loria will also testify about definition and the distinction between marketability of title and economic marketabillty of title. b. the substance of the facts and opinions to which each such expert is expected to testify; @ RESPONSE: Mr. Loria will identify the subject property's record title duly recorded in the Bamstable County Land Court District and that the Condominium Documents specifically state that the subject property Is a “Motel Condominium”. Mr. Lorta will further testify that title rundown of the subject property identifles that: (A) the Master Deed states under paragraph 9(a): "USE OF UNITS: The buildings and all Units are intended to be used as a Condominium Motel in accordance with the by-laws of the Condominium Trust” (B) the Master Deed also states under paragraph 9(d): EXHIBIT 4 “A Unit may be leased or rented subject to the Town of Dennis Zoning Board of Appeals Special Permit Decisions in File Numbers A-1299 & A-1447" (C) Appeals Permit Decision File No A-1447 Is duly filed in the Bamstable County Registry District Land Court bearing Document Number 1,112,020 and dated March 24, 2009 states: *,. the property will continue to operaté as a motel... and... property to remain a motel with the length of stay requirements subject to the Board of Health Standards” (0) Appeals Permit Decision File No A-1299 is filed in the Bamstable County Registry District Land Court bearing Document Number 1,057,542 dated December 7, 2006, and clearly states: “Applicant...to modify and existing hotel with certain units being purchased for certain weeks...” . €) That the May 2, 2011 special permit case number 2011-5 granted to the subject property continued to confine the use of unit 204 to that of a motel room, (F) That the Deed tendered to the Yatsenicks by the Defendants Old Wharf Village LLC and Charles Edger violates the Town of Dennis zoning by-laws. Mr. Loria will testify that, the Yatsenicks were sold a worthless interest in a commercial motel that they cannot sell or use; and there is no way for the Yatsenicks to mitigate their damages because the actions and Inactions of the Defendants rendered the title to the property economically unmarketable, Mr. Loria will further testify that It his opinion that the Defendants, having done a reasonable due diligence inquiry of the subject property knew or should have known that they had no ability to market, sell, or deed the subject property to the Plaintiffs as being “single family year round residential” property. C. Asummary of the grounds for each such opinion. RESPONSE: Mr. Loria’s grounds for basing his opinions will be based upon the application of (1) current judicial interpretations; (2) standard accepted Massachusetts po conveyancing practices; (3) the record title of the subject property; and (4) the subject property's permits on file with the Town of Dennis. c TIO! T | hereby certify that disclosure contained in these answers to interrogatories accurately states the subject matter(s) on which | am expected to testify, the substance of the facts and opinions Te to which | am expected to testify, and a summary of the grounds for each opinion to which tam e Signature of Expert MARTIN LORIA Printed Name of Expert tee MARTIN A. LORIA £ ‘atin A Lia ajprtner at Adelion Lora & Welainn, P.C,, concontstingin real estate fam, includingreal estate atid acquisition matters, title insurance and the identification, - evaluation and resolution of title issues. His practice also involves Jender representation relative foresidential and commercial witness consulfation in the Massachusetts Land Court, Superior Court and Probate-Court and he has acted as counsel to various city, state and federal agencies and housing organizations. An approved Land Court examiner, hp has served as President of the Real-Estate Bar President ofthe Abstract Club and has lectured and written for MCLE, Suffolk Law School, the Real Bstate Bar Association and real estate and banking groups and hes been a contributing author to Crocker’s Notes on Common Forms and a member of the Land Court Guidelines Committee and was seleoted as “Best Lawyer” in real estate and “Super Lawyer” by Boston Magazine, He is a graduate of State University of New York at Albany and Suffolk University Law School. Recent Publications and Lectnreg 2011 MCLE ~ How to Read a Tifle Abstract 2008 REBA Spring Conference — Defending Borrowers in the Foreclosure Process 2005 MCLE — Advanced Real Estate Topics for the Paralegal 2004 MCLE — Hot Topics for Real Estate Paralegals Education State University of New York at Albany, Albany, New York BA, 1972 Suffolk University Law School, Boston, Massachusetts 5D., 1975 - Pre 1976to 1978 Kargman & Kargman Boston, Massachusetts 1978 to. 1982 New States Counsel Lawyers Title Insurance Corporation Boston, Massachusetts 1983 to 2000 Adelson, Golden, Loria & Simons, P.C. (formerly Adelson, Golden & Loria, P.C.) Boston, Massachusetts 2001 to 2002 Cherwin, Theise, Adelson & Loria, LLP Boston, Massachusetts 2003-Present Adelson Loria & Weisman, P.C. Boston, Massachusetts —— ree wee Massacbusettd Bar Association Boston Bar Association Real Bstate Bar Association —President — 1991, De tics, Ti National Affairs ( ‘New England Land Title Association Abstract Club-President, Board of Directors a. see . . ‘MARTIN A.LORIA - £ “pai A Linas apstner at Adokon Lovia 6 Weinsmn, PC. connnatingin cel eset, including real estate development arid matters,title insurance and the * evalustion and resolution of fitle issues. His pusotice also involves lender representation relative fo residential and commercial. witness consultation in the Massachusetts Cae aeer ee cad non-profit hausing eguntantions An approved wed Cow state.and federal, Land Court examiner, he Tae erat ident of tua Real Sves Bar Bar Assodition,Precfont ithe About Chak et tas * feoturedl and weitten for MCLE, Bt ‘Law Sclivol, the Real ‘Botate Bar Assovitfion‘and real estate and banking groups and hes been a contributing author to Crocker’a Notes on Corhmon. Forms and a member of the Lani Court Guidelines Committee and was seleoted'as “Best Lowyer” in real estate and “Super Lawyer” by Boston Magazine. He is a graduateof State University of New York at Albany and Suffell Univerety Lave Schoo. 2011 MCLE — How to Read e Title Abstract 2008 REBA Spring Conference— Definding Brows inthe Foret ibe, MCLE—— Advanced Real Estats Topics for the Parilegal MCLE — Hot Topics for Real Estate Paralogals Education State University of New York atAlbeny, ‘Abou, New York BA, 1972 Se nay Law ih os Mats 3D, 1975 ance 1976 to 1978 Kargman & Kargman Boston, Massachusetis 1978 to. 1982 New States Counsel Lawyers Title-Insurance Corposation Boston, Massachusetts 1983 to.2000 Adelson, Golden, Loria & Simons, P.C. (formerly Adelson, Golden & Loria, P.C:) Boston, Massachusetts 2001 to 2002 Cherwin, Theise, Adeléon & Loria, LLP 2003-Present Adelson Loria & Weisman, P.C, Boston, Massachusetts XHIBIT s™ OS —— sssenee meee meee qe ~ Momhenitiing Masgadhusetts Bar Assoviation Boston Bar Association Real Hetate Bar Association ~ President 1991, Boaid of Direttors, Lepistation, Title Standards, National Affairs New England Land Title Association. © _Abstrant Club-President, Bosrd ofDivéstore eet ed " COMMONWEALTH OF MASSACHUSETTS BARNSTABLE, ss SUPERIOR COURT DOCKET NO. 1372CV00125 RICK YATSENICK & JOAL YATSENICK PLAINTIFFS v. OLD WHARF VILLAGE LLC, CHARLES EDGAR, DAVID DILLON D/B/A AS DILLON REAL ESTATE, & STACEY CURLEY DEFENDANTS PLAINTIFFS’ REQUEST FOR A HEARING ON THEIR MOTION IN OPPOSITION TO THE DEFENDANTS’ MOTION TO PRECLUDE TESTIMONY OF PLAINTIFFS’ EXPERT WITNESS Now comes the Plaintiffs in the above captioned action by their Attomey, Brian K. Galletta and respectfully requests this Honorable Court for a Hearing on their Motion in Opposition of Defendants’ Motion to preclude testimony of Plaintiffs’ Expert Witness. Respectfully Submitted, Bren or Brian K. Gallett B.B.O. #566078 Attorney for the Plaintiffs Rick Yatsenick and Joal Yatsenick 25 Lady Slipper Drive Plymouth, MA 02360 Phone: (508) 591-7303 Fax: (508) 746-1817 DATE: February 14, 2018 Email: bkglegal@gmail.com CERTIFICATE OF SERVICE Thereby certify that a true copy of the forgoing document was served upon all known parties herein by causing a copy to be delivered by first class prepaid USPS mail on this 14" day of February 2018. Bran: ote Brian K. Galletta, Esq. B.B.O. #566078 Attomey for the Plaintiffs Rick Yatsenick and Joal Yatsenick 25 Lady Slipper Drive Plymouth, MA 02360 Phone: (508) 591-7303 Fax: (508) 746-1817 DATE: February 14, 2018 Email: bkglegal@gmail.com yyy COMMONWEALTH OF MASSACHUSETTS BARNSTABLE, ss SUPERIOR COURT DEPARTMENT Civil Action No. BACV2013-00125 RICK YATSENICK & JOAL YATSENICK, Plaintiffs, Vv. OLD WHARF VILLAGE, LLC, CHARLES EDGAR, DAVID DILLAN d/b/a as DILLON REAL ESTATE & STACEY CURLEY Defendants. @ AFFIDAVIT OF COMP! (CE WITH RULE 9A I, Djuna Perkins being duly swom to hereby state that on or about February 6, 2018 1 served a copy of Defendants’ Motion to Preclude Testimony of Plaintiffs’ Expert Witness, in compliance with Rule 9. Ireceived a copy of Opposition of Plaintiffs Rick Yatsenick and Joal Yatsenick Motion in Opposition to Defendants’ Old Wharf Village LLC & Charles Edgar’s Motion to Preclude Testimony of Plaintiffs’ Expert Witness on February 16, 2018 as required under Rule 9(A)(b)(2). Signed under the pains and penalties of perjury this ue day of February 2018. Djuna Perkins( ) CERTIFICATE OF SERVICE I hereby certify that I served a copy of the foregoing Defendants’ Motion to Preclude Testimony of Plaintiffs’ Expert Witness, upon: Douglas A. Troyer, Esquire Moriarty, Troyer & Malloy, LLC 30 Braintree Hill Office Park, Suite 205 Braintree, MA 02184 Fax: 781-817-4910 Brian K. Galleta, Esquire 25 Lady Slipper Drive Plymouth, MA 02360 @ Fax: 508-746-1817 ON 0 Djuna ifis Alig