Nightingale v. Board of Appeals of Methuen

Massachusetts Appeals Court

Nightingale v. Board of Appeals of Methuen

386 N.E.2d 1064, 7 Mass. App. Ct. 887, 1979 Mass. App. LEXIS 1276

CourtMassachusetts Appeals Court

DecidedMarch 23, 1979

StatusPublished

Cited by3 cases

This text of 386 N.E.2d 1064 (Nightingale v. Board of Appeals of Methuen) is published on Counsel Stack Legal Research, covering Massachusetts Appeals Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Nightingale v. Board of Appeals of Methuen, 386 N.E.2d 1064, 7 Mass. App. Ct. 887, 1979 Mass. App. LEXIS 1276 (Mass. Ct. App. 1979).

Pincite

Opinion

Summary judgment was properly entered for the defendants on plaintiff’s appeal from a decision of the board of appeals of Methuen, pursuant to G. L. c. 40A, § 21, second par., as amended by St. 1974, c. 78, § 1. The defendants filed a motion to dismiss with an affidavit from the town clerk stating that notice of the plaintiff’s action with a copy of the complaint was never received, as required by § 21.1. The trial judge gave notice to the parties that the motion would [888]*888be treated as one for summary judgment, as well as the opportunity to present further material, and a hearing. It was not error to treat the motion as one for summary judgment. Compare Mass.R.Civ.P. rule 12(b), with rule 56, 365 Mass. 755, 824 (1974). See Capodilupo v. Petringa, 5 Mass. App. Ct. 893, 894-895 (1977). 2. The plaintiff states in his opposing affidavit only that notice and the complaint were mailed to the town clerk in an envelope upon which the plaintiffs return address was noted, and that it has never been returned to him. As matter of law, the notice and copy of the complaint must be received by the town clerk. Costello v. Board of Appeals of Lexington, 3 Mass. App. Ct. 441, 442-445 (1975). This requirement has not been affected by Pierce v. Board of Appeals of Carver, 369 Mass. 804, 808-809 (1976). See Marvin v. Board of Appeals of Medfield, 5 Mass. App. Ct. 772 (1977). There was no genuine question of a material fact whether the town clerk timely received notice, and, therefore, summary judgment was proper. Community Natl. Bank v. Dawes, 369 Mass. 550, 556-557 (1976). Costello, 3 Mass. App. Ct. at 442.

The case was submitted on briefs. Anthony R. DiFruscia for the plaintiff. Wilbur A. Hyatt for the defendants.

Judgment affirmed.

Free access — add to your briefcase to read the full text and ask questions with AI

Summary judgment was properly entered for the defendants on plaintiff’s appeal from a decision of the board of appeals of Methuen, pursuant to G. L. c. 40A, § 21, second par., as amended by St. 1974, c. 78, § 1. The defendants filed a motion to dismiss with an affidavit from the town clerk stating that notice of the plaintiff’s action with a copy of the complaint was never received, as required by § 21.1. The trial judge gave notice to the parties that the motion would [888]*888be treated as one for summary judgment, as well as the opportunity to present further material, and a hearing. It was not error to treat the motion as one for summary judgment. Compare Mass.R.Civ.P. rule 12(b), with rule 56, 365 Mass. 755, 824 (1974). See Capodilupo v. Petringa, 5 Mass. App. Ct. 893, 894-895 (1977). 2. The plaintiff states in his opposing affidavit only that notice and the complaint were mailed to the town clerk in an envelope upon which the plaintiffs return address was noted, and that it has never been returned to him. As matter of law, the notice and copy of the complaint must be received by the town clerk. Costello v. Board of Appeals of Lexington, 3 Mass. App. Ct. 441, 442-445 (1975). This requirement has not been affected by Pierce v. Board of Appeals of Carver, 369 Mass. 804, 808-809 (1976). See Marvin v. Board of Appeals of Medfield, 5 Mass. App. Ct. 772 (1977). There was no genuine question of a material fact whether the town clerk timely received notice, and, therefore, summary judgment was proper. Community Natl. Bank v. Dawes, 369 Mass. 550, 556-557 (1976). Costello, 3 Mass. App. Ct. at 442.

The case was submitted on briefs. Anthony R. DiFruscia for the plaintiff. Wilbur A. Hyatt for the defendants.

Judgment affirmed.

Cite This Page — Counsel Stack

Bluebook (online)

386 N.E.2d 1064, 7 Mass. App. Ct. 887, 1979 Mass. App. LEXIS 1276, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nightingale-v-board-of-appeals-of-methuen-massappct-1979.

Opinion

Related

Cite This Page — Counsel Stack