Opinion
June 24, 1992.
Present: Donovan, Kelly Meagher, JJ.
Jurisdiction, Boston Municipal Court Appellate Division; Summary process action.
Report of court's dismissal of plaintiff's appeal. Action heard by Driscoll, J.
Frank A. Flynn for the plaintiff.
Michael A. Brown for the defendant.
This is a summary process action brought by the plaintiff/landlord against the defendant/tenant. On September 26, 1991, the defendant's counterclaim, which alleged fraud with regard to the zoning of the property, was dismissed by the trial court. After this dismissal, the two parties negotiated an agreement for judgment which stated that the plaintiff would take possession of the premises and accept a reduced amount of damages. The parties negotiated a further agreement releasing the defendant from the four year term of the lease in return for the defendant releasing all its claims against the plaintiff.
Thereafter, on October 10, 1991, the defendant with a new attorney brought a motion to vacate the consent judgment and a motion for a stay of execution indicating that it was ill advised at the time of the agreement for judgment. On October 30, 1991, the court allowed the defendant's motion pursuant to M.R.C.P., Rule 60(b) (1). The plaintiff appealed to the Appellate Division of the Boston Municipal Court.
There is no right of review of summary process actions in the Boston Municipal Court Appellate Division. Emerson v. Dubois, 1989 Mass. App. Div. 160; Pine Hill Estates, Inc. v. Rita Stone, 1986 Mass. App. Div. 99. The Appellate Division lacks subject matter jurisdiction of the underlying cause of action. Consequently, the appeal is dismissed.