Benyamin v. Land Court Department of Trial Court
| Decision Date | 28 January 2010 |
| Docket Number | 20081687E |
| Parties | George Benyamin v. Land Court Department of the Trial Court et al. [1] No. 110633 |
| Court | Massachusetts Superior Court |
Caption Date: January 26, 2010.
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): McDonald, C. Brian, J.
After the plaintiff, George Benyamin ("Benyamin") commenced this pro se action for declaratory relief in Suffolk Superior Court, the court (Lauriat, J.) transferred the action to this court. Benyamin asserts claims against the Land Court Department of the Trial Court ("Land Court"), the City of Worcester ("City"), Attorney John O'Day ("O'Day"), Thomas Zidelis ("Zidelis"), former tax collector for the City of Worcester, Attorney Thomas Beliveau ("Beliveau"), Jamie Milot ("Milot"), and Constable Frank Trapasso ("Trapasso"). Through his complaint, Benyamin seeks damages, the return of ownership of certain real property located in Worcester, waiver of real estate taxes, and costs against the several defendants. The gravamen of the complaint is an alleged conspiracy against Benyamin that led to his being falsely imprisoned and losing several of his properties to tax title foreclosure or demolition.
The Land Court has now moved to dismiss the complaint for failure to state a claim upon which relief can be granted. The City, O'Day and Zidelis have also moved to dismiss, arguing that the court lacks jurisdiction, the complaint fails to state a claim upon which relief can be granted, and that Benyamin's claims are barred by collateral estoppel. Beliveau, Milot, and Trapasso have jointly moved to dismiss the complaint, also on the basis that Benyamin's claims are barred by collateral estoppel and fail to state a claim upon which relief can be granted. They also seek injunctive relief prohibiting Benyamin from filing future pro se complaints against them which arise out of Benyamin's criminal conviction, Trapasso's appointment as receiver, and the loss of his properties.
Each of the defendants moved to dismiss before answering the complaint. At the hearing on the several motions, Benyamin and several of the defendants asked the court to consider matters outside of the pleadings in rendering a decision. The court, having considered such matters and taken notice of other actions filed by Benyamin, including appeals to the Appeals and Supreme Judicial Courts from judgments entered in this court, will treat the defendants' motions as ones for summary judgment. Mass.R.Civ.P. 12(b).
Benyamin claims that the defendants were part of a conspiracy to deprive him of his properties in Worcester, including 47 Westminster Street ("47 Westminster"), 479 Cambridge Street ("479 Cambridge"), 10 Windsor Street ("10 Windsor") and 6 Waverly Street ("6 Waverly"). Specifically, Benyamin alleges that: Milot falsely accused him of rape and perjured herself during his criminal trial, causing him to be falsely convicted and imprisoned; Beliveau filed a civil action against him on Milot's behalf leading to the attachment of Benyamin's properties; Trapasso was appointed as receiver to collect rents and insurance proceeds from those properties; Beliveau and Milot used her false allegations and perjured testimony to obtain a civil judgment against Benyamin; Trapasso intentionally failed to purchase insurance for and maintain the properties for which he was receiver, causing them to become uninhabitable and depriving Benyamin of rental income; Trapasso purposely failed to pay property taxes levied by Zidelis on behalf of the City, allowing the City to take title to 47 Westminster and 6 Waverly; and the Land Court terminated his rights of redemption with respect to those properties, enabling the City to demolish 47 Westminster. The specific circumstances giving rise to Benyamin's complaint are as follows.
In November 1998, Benyamin was convicted of two counts of rape, indecent assault and battery, and assault with intent to rape. Milot was his victim. He was sentenced to twelve to fifteen years in prison, and is currently incarcerated. Following the conviction, Beliveau commenced Civil Action No. 99-1250 against Benyamin on behalf of Milot. Because Milot was seeking damages, the court (Wernick, J.) approved an attachment of certain of Benyamin's properties in Worcester. In July 1999, the court (Giles, J.) appointed Trapasso as a receiver to collect rents from 47 Westminster and insurance proceeds from 479 Cambridge (which had been damaged by fire), as security for Milot's anticipated judgment. Milot prevailed in her action, and final judgment awarding her $150,000.00 entered on December 30, 2004. Benyamin filed, but failed to perfect, an appeal of that judgment. His criminal convictions were affirmed in Commonwealth v. Benyamin, 49 Mass.App.Ct. 1119 (2000), and further appellate review was denied, 432 Mass. 1107 (2000).
In July 2004, the court (McCann, J.) ordered that Trapasso, as receiver, "remain keeper and receiver of, inter alia, rents for properties at 479 Cambridge Street, 47 Westminster Street[, and] 10 Windsor Street, Worcester" and to "collect and receive said rents... and to hold said monies until further orders of said Court."[2] Benyamin petitioned the Appeals Court three times to remove Trapasso as receiver, yet each petition was denied. See Milot v. Benyamin, 69 Mass.App.Ct. 1107 (2007).
In September 2005, the Land Court issued separate orders allowing the City to foreclose on 47 Westminster and 6 Waverly for unpaid taxes. The Land Court also terminated Benyamin's rights of redemption for those properties. Benyamin filed timely notices of appeal from the separate orders, and his appeals were consolidated into one.[3] The appeal was dismissed after Benyamin failed to docket it within ten days of receiving notice of assembly of the record, see Mass.R.A.P. 10(a)(1), and a full panel of the Appeals Court upheld the single justice's denial of Benyamin's petition, made one year later, to docket the appeal late. City of Worcester v. Benyamin, 71 Mass.App.Ct. 1121, *1 (2008). Part of the damages currently claimed by Benyamin arise from the Land Court's orders allowing the foreclosures, which he alleges were the result of Trapasso's failure to pay taxes on the properties for which he was receiver. It is clear from the court's orders appointing him, however, that Trapasso was not responsible for paying taxes on or maintaining the properties—he was only responsible for collecting money to secure Milot's judgment. Furthermore, Trapasso had no responsibility for 6 Waverly.
In 1994, the City ordered Benyamin to demolish 10 Windsor. Benyamin appealed to the Superior Court, where the City's demolition order was affirmed by a jury.[4] The Appeals Court upheld the jury's verdict, Benyamin v. City of Worcester, 51 Mass.App.Ct. 1114 (2001), and further appellate review was denied, 435 Mass. 1104 (2001). Benyamin challenged a similar demolition order for 47 Westminster, but that action was dismissed when he failed to serve the complaint.[5] It does not appears that Benyamin appealed the dismissal. In 2004, Benyamin brought an action to enjoin, and seeking damages for, the demolitions at 47 Westminster and 10 Windsor.[6] The City was granted summary judgment on Benyamin's claim for damages, and Benyamin's appeal from that order is pending.[7]
In 2002, Benyamin petitioned the Supreme Judicial Court, pursuant to G.L.c. 211, §3, for an order vacating various orders and judgments of the "Worcester County Superior Court for Civil Business." His petition was based upon the several judgments entered against him in actions involving his several properties, and he alleged the same conspiracy that forms the basis for his current action. The single justice's denial of relief was affirmed by the full court, who noted that Benyamin v. City Manager of Worcester, 440 Mass. 1036, 1037 (2004).
Because Benyamin's current action is but another "collateral attack[ ] on his criminal convictions, the demolition proceedings, and other civil actions in which he is involved," id., each defendant has moved to dismiss the complaint for failure to state a claim upon which relief can be granted. With the exception of the Land Court each defendant has also moved to dismiss based upon collateral estoppel. As previously noted, this court will consider the defendants' several motions to dismiss as motions for summary judgment. Accordingly, judgment will enter only if the material facts are undisputed and the moving party is entitled to judgment as a matter of law. Mass.R.Civ.P. 56(c). If the moving party establishes the absence of a triable issue, the burden shifts to Benyamin to oppose with specific facts demonstrating the existence of a genuine issue of material fact. Pederson v. Time, Inc., 404 Mass. 14, 17 (1989). Benyamin cannot defeat the motion simply by resting on the pleadings and mere assertions that there are disputed facts, LaLonde v. Eisner, 405 Mass. 207, 209 (1989), and "[a]ny doubts as to the existence of a genuine issue of material fact are to be resolved against the party moving for summary judgment." Milliken & Co., 451 Mass. 547, 550 n.6 (2008).
Through his complaint, Benyamin alleges that the Land Court...
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