Motion,Ex Parte: Yatsenick, Rick et al vs. Old Wharf Village LLC et al

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                                COMMONWEALTH OF MASSACHUSETTS

  

BARNSTABLE, ss. SUPERIOR COURT DEPARTMENT
CA. No. BACV2013-00125
fais
RICK YATSENICK & JOAL YATSENICK, Lou.
Plaintiffs, By He a u v4, [b [den 4)
Aso Ne

OLD WHARF VILLAGE, LLC, and CHARLES
EDGAR, DAVID DILLON D/B/A DILLON
REAL ESTATE and STACEY CURLEY

Defendants

 

The Defendants request that the court preclude the testimony of the Plaintiffs’ expert
witness, Martin Loria, because the Plaintiffs’ disclosures of the basis for his opinion is
inadequate pursuant to the Court’s Pre-Trial Order of February 10, 2016. As grounds therefore,
the Defendants state:

1. This case arises out of a dispute over the 2010 sale of a new beachfront condominium
unit in Dennisport, one of thirteen such units at 405 Old Wharf Village Road, all of which
have been sold and are currently occupied. Photos of Unit 204, the unit at issue, are
attached as Exhibit A. The case is currently scheduled for trial on March 21.

2. The Plaintiffs claim that they sought to purchase a residential condominium but were
fraudulently sold an “interest in a commercial motel”. The Defendants claim that the

1fe

deed inadvertently incorrectly described the permitted use of the condominium, but that
in all other respects the condominium was as described, that nothing has interfered with
the Plaintiffs use and enjoyment of the property since the time of purchase, that other
purchasers of units in the building have used and enjoyed their property without
interference, and special permits have since issued that would permit the Plaintiffs to use
the property as a residence.

3. In 2015, the parties filed a Joint Pre-trial Memorandum in which the Plaintiffs identified
Martin Loria as an expert witness. Exhibit B. The Plaintiffs state that Loria would opine

@ that the Defendants sold the Plaintiffs 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.” Exhibit B. The expert’s opinion did not address the
impact of various changes to the special permits on the economic marketability of the
property in the eight years since the time of purchase; did not address the fact that all
other units in the building have sold and are currently occupied; did not address the

@ impact of the sales of other units on the economic marketability of Unit 204; and did not
address the impact of the issuance of a corrected deed on the potential value of the
property.

4. The Plaintiffs state that the grounds for the expert’s opinion are: "1) current judicial
interpretations; 2) standard accepted Massachusetts conveyancing practices; 3) the record
title of the property; and 4) the subject property’s permits on file with the Town of
Dennis.” Exhibit B. The complexity of the changes in permitted use of the property

over time, the fact that all other allegedly “worthless” units in the complex have sold, and
2the fact that sales of comparable units suggest an appreciation in value of Unit 204,

warranted disclosure of more detailed grounds for the Plaintiffs’ expert opinion. Exhibit

c.

5. On January 22, 2018, I requested a more detailed summary of the grounds of the expert’s

opinion from Plaintiff's counsel. Plaintiff's counsel declined to provide further detail.

Exhibit D.

6. The Defendants cannot adequately prepare for trial without more specific grounds for the

expert’s opinion.

WHEREFORE, the Defendants request that the court prohibit the Plaintiffs from offering

expert testimony.

DATED: February 6, 2018

Respectfully submitted,

Defendants, Old Wharf Village, LLC
And Charles Edgar

By their attorneys,

Ge

Dyuna Pérkins, BBO #561909
Lynne M. Chiodo, BBO# 657428
DP Law

619 High Street, Suite 103
Dedham, MA 02026

Phone: (781) 326-6320

Fax: (781) 326-6321
dp@djunaperkinslaw.com
Ichiodo@djunaperkinslaw.com