DiBiase v. DiBiase

666 N.E.2d 1300, 423 Mass. 1003, 1996 Mass. LEXIS 156

Opinion

This is an appeal under S.J.C. Rule 2:21, 421 Mass. 1303 (1995), from a denial by a single justice of this court of a petition for relief under G. L. c. 211, § 3 (1994 ed.). The defendants had initially petitioned a single justice of the Appeals Court for relief under G. L. c. 231, § 118, first par. (1994 ed.), which was denied. Because this denial concerned an underlying interlocutory order by a Probate and Family Court judge, rule 2:21 is applicable. The defendants, however, have failed to show why appellate review after a final judgment would not be adequate. They argue that, because an adverse judgment in the Probate Court is not automatically stayed, they will be irreparably harmed by the deprivation of their assets during the pendency of an appeal. This argument fails to address why the substantive error allegedly committed by the single justice of the Appeals Court and the Probate Court judge cannot be remedied on appeal. Any party in a Probate Court proceeding can assert the sort of harm described by the defendants, and therefore it does not provide a basis for extraordinary relief under G. L. c. 211, § 3.

Judgment affirmed.