MIRRIONE v. JACOBS (2006)

The petitioner, Charles M. Mirrione, appeals from the denial of his petition under G.L. c. 211, § 3, by a single justice of this court.   We affirm.

Mirrione is a defendant in a civil action pending in the Superior Court in which Michael Jacobs, Gerald Wine, and Seamus Kelly (plaintiffs) are challenging the issuance of a special permit and definitive subdivision approval.   Pursuant to G.L. c. 40A, § 17, Mirrione moved in the Superior Court for an order requiring each plaintiff to post a cash or surety bond to secure court costs.   The Superior Court judge denied the motions.   A single justice of the Appeals Court denied Mirrione's petition for relief under G.L. c. 231, § 118, first par.   Mirrione's G.L. c. 211, § 3, petition was subsequently denied.

Mirrione has filed a memorandum of law and record appendix pursuant to S.J.C. Rule 2:21, as amended, 434 Mass. 1301 (2001).   That rule applies where “a single justice denies relief from a challenged interlocutory ruling in the trial court.”  S.J.C. Rule 2:21(1), 421 Mass. 1303 (1995).  “We consider S.J.C. Rule 2:21 ․ to be applicable here, notwithstanding the effort to obtain relief in the Appeals Court, because the focus of the petition under G.L. c. 211, § 3, is on the action of the trial court.”  Picciotto v. Zabin (No. 1), 433 Mass. 1006, 1007 n. 3, 741 N.E.2d 854 (2001).   Mirrione must show that “review of the trial court decision cannot adequately be obtained on appeal from any final adverse judgment in the trial court or by other available means.”  S.J.C. Rule 2:21(2).   This he cannot do.   Mirrione has obtained review of the Superior Court judge's ruling under G.L. c. 231, § 118.  “Review under G.L. c. 211, § 3, does not lie where review under [G.L.] c. 231, § 118, would suffice.”  Greco v. Plymouth Sav. Bank, 423 Mass. 1019, 1019-1020, 672 N.E.2d 535 (1996).

Judgment affirmed.

The case was submitted on the papers filed, accompanied by a memorandum of law.

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