Michail Sitkovsky v. Jane Sullivan.

• Court: Massachusetts Appeals Court
• Decided: June 24, 2025
• Docket: 24-P-1115
• Status: Unpublished

Opinion

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

24-P-1115

MICHAIL SITKOVSKY

vs.

JANE SULLIVAN.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After a judge denied a request by the defendant, Jane

Sullivan, for a harassment prevention order pursuant to G. L.

c. 258E, § 3, the plaintiff, Michail Sitkovsky, filed a District

Court action against Sullivan for abuse of process and malicious

prosecution. In this interlocutory appeal, Sullivan challenges

the same judge's denial of her G. L. c. 231, § 59H, (anti-SLAPP)

special motion to dismiss Sitkovsky's complaint against her. We

affirm.

Discussion. We review de novo the ruling on an anti-SLAPP

motion to dismiss. See Bristol Asphalt Co. v. Rochester

Bituminous Prods., Inc., 493 Mass. 539, 562 (2024). As the

proponent of an anti-SLAPP motion to dismiss, Sullivan had the initial burden of showing that Sitkovsky's claims against her

were based on "petitioning activities alone and [had] no

substantial basis other than or in addition to the petitioning

activities" (quotation and citation omitted). Id. at 555-556.

Sitkovsky does not dispute that his claims against Sullivan were

based solely on Sullivan's petitioning activity, the filing of a

harassment prevention complaint against him. Because Sullivan

thus met her initial burden of showing that Sitkovsky's claims

against her were based on petitioning activity, the burden

shifted to Sitkovsky to show that the petitioning activity

(1) "was devoid of any reasonable factual support or any

arguable basis in law" and (2) "caused actual injury to

[Sitkovsky]." Id. at 557, quoting G. L. c. 231, § 59H.

Under this rubric, Sitkovsky first was required to show

that "no valid basis for [a harassment prevention] order was

presented" by Sullivan. Van Liew v. Stansfield, 474 Mass. 31,

40 (2016). To obtain a harassment prevention order, Sullivan

had to demonstrate "harassment," which the statute defines in

relevant part as "[three] or more acts of willful and malicious

conduct aimed at a specific person committed with the intent to

cause fear, intimidation, abuse or damage to property and that

does in fact cause fear, intimidation, abuse or damage to

property." G. L. c. 258E, §§ 1, 3.

2 In support of her petition for a harassment prevention

order, Sullivan alleged three incidents.1 During the first

incident, on May 1, 2023, as Sullivan sat on her deck, Sitkovsky

walked nearby on a common walkway. Sitkovsky saw Sullivan

taking a video of him with her cell phone and said, "you can

take a photo of me; can I take one of you?" When Sullivan

replied "no," Sitkovsky raised his right hand in a fist and

stated, "just like when you called me a fucking Jew." Next, on

June 16, 2023, while Sullivan and her husband sat on their deck

with a friend, Sitkovsky stared at them "for a minute" from the

adjacent common area. He left and returned to the area twice

over the following several minutes, walking by the Sullivans'

deck, waving, and doing "old fashioned aerobic exercise moves"

that involved "gyrating . . . his hips." There was no verbal

exchange. Finally, on June 23, 2023, Sullivan's husband and

Sitkovsky video recorded each other while Sullivan and her

husband were on their deck and Sitkovsky stood in the common

area.

None of these incidents provide a nonfrivolous basis for

showing harassment under the statute.2 There was no evidence

1 Sullivan claimed that Sitkovsky's "harassment" of her stemmed from the parties being on opposite sides of an arbitration proceeding in 2022 regarding the color of the Sullivans' replacement windows. 2 After an evidentiary hearing over parts of three days, the

judge denied Sullivan's petition for a harassment prevention

3 that Sitkovsky "intended to cause . . . intimidation, fear of

personal injury, or damage to property." Seney v. Morhy, 467

Mass. 58, 63 (2014). Nor did Sullivan allege that Sitkovsky

physically harmed her, verbally threatened to harm her or her

property, or caused any damage to her property. Id. Moreover,

it was not clear that either June incident was "aimed" at

Sullivan, as opposed to her husband or their guest. See id. (no

act of harassment where conduct not specifically directed at

plaintiff). We thus conclude that Sitkovsky satisfied his

burden to show that Sullivan's petitioning activity lacked "any

reasonable factual support or any arguable basis in law."3 Van

Liew, 474 Mass. at 39, quoting G. L. c. 231, § 59H.

order in a detailed and thoughtful memorandum of decision. Sullivan did not appeal the judge's decision, and any such appeal would have been frivolous.

3 We are not persuaded by Sullivan's contention that a recommendation by local police that she apply for a harassment prevention order demonstrated that her petition had an arguable basis in fact or law, where police officers are statutorily mandated to notify a person reporting harassment of the right to seek such an order. See G. L. c. 258E, § 8 (5). See also Van Liew, 474 Mass. at 33. Nor do we agree that the judge's summary denial of Sitkovsky's motion for directed verdict on the harassment prevention order petition had any bearing on the denial of Sullivan's special motion to dismiss. Contrast McLarnon v. Jokisch, 431 Mass. 343, 349 (2000) (defendants' abuse prevention order petitions did not lack factual and legal basis where "several judges granted or extended protective orders against the plaintiff"). There is no indication in the record that the judge denied the motion because he concluded that the plaintiff had made a nonfrivolous showing of harassment. To the extent that we do not address Sullivan's other contentions, they have not been overlooked. We either

4 Sitkovsky also met the second requirement necessary to

defeat Sullivan's anti-SLAPP special motion to dismiss. He

stated in an uncontradicted affidavit that he "incurred

$17,870.00 in attorneys' fees" as a result of the harassment

prevention case. This was sufficient to show that Sullivan

caused "actual injury" to Sitkovsky. Van Liew, 474 Mass. at 40.4

Order denying special motion to dismiss affirmed.

By the Court (Blake, C.J., Ditkoff & Brennan, JJ.5),

Clerk

Entered: June 24, 2025.

find nothing in them that requires discussion, or they do not rise to the level of adequate appellate argument as required by Mass. R. A. P. 16 (a) (9) (A), as appearing in 481 Mass. 1628 (2019). See Department of Revenue v. Ryan R., 62 Mass. App. Ct. 380, 389 (2004).

4 Sitkovsky's request for appellate attorney's fees is denied.

5 The panelists are listed in order of seniority.