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FOX v. BOUCHER

February 7, 1985

JOHN J. FOX, Plaintiff, against ALFRED G. BOUCHER, Defendant.


The opinion of the court was delivered by: SWEET

SWEET, D.J.

Defendant Alfred G. Boucher ("Boucher") moved on December 13, 1984 to dismiss this action and for summary judgment. Plaintiff John J. Fox ("Fox") by his then counsel *fn1" wrote the court on December 11, 1984 a letter received on December 14 requesting that this action, removed from Supreme Court, Rockland County, be designated a White Plains action and transferred to that court. Upon the following findings and conclusions, summary judgment will be granted to Boucher, rendering the transfer motion moot.

 The Parties

 Fox is a New York State resident and lawyer and owns 1 St. Paul Street, in Blackstone, Massachusetts. Boucher is a resident of Bellingham, Massachusetts. He is the father of Janice C. Hogge. He has no business, residence or other connection with New York State.

 Prior Proceedings

 Boucher's daughter and her husband were month-to-month tenants in Fox's building in May, 1984. On May 15, 1984 Boucher's son-in-law was injured in a motorcycle accident, remained in a coma for five days and then died. Boucher's daughter and her husband were only twenty-three years old at the time of the husband's death, and had been married for less than two years.

 Boucher's daughter moved out of the apartment by June 1, 1984 and moved back in with her family. Fox refused to return to Janice Hogge her security deposit on the apartment in the amount of $250 and suggested that her husband's death must have provided ample funds:

 I know you are going to say this is none of my G-D business, but I know your husband just died and I'm sure he must have had insurance.

 Janice Hogge was unable to continue the conversation, Boucher picked up the phone, a conversation ensued. Fox refused the demand for the security deposit and Boucher ended the conversation by hanging up the phone.

 Janice Hogge, acting pro se, filed a "Statement of Small Claim and Notice of Trial" against Fox in the Trial Court of Massachusetts, Small Claims Session, at the Uxbridge District Court. Fox served an answer and counterclaims containing an eighth affirmative defense and fourth counterclaim:

 AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE AND A FOURTH COUNTERCLAIM

 31. On July 2, 1984 the plaintiff called the defendant, JOHN J. FOX, by telephone requesting the return of her security.

 32. Defendant explained to plaintiff the substance of paragraphs "19," "21," "24," "25," and "26" [containing Fox's purported "defenses" which the court ultimately rejected] aforesaid.

 33. Plaintiff's father then spoke on the telephone with said defendant who explained the substance of paragraphs "19," "21," "24," "25" and "26" aforesaid to him.

 34. Both the plaintiff and her father stated to said defendant that he should pay the plaintiff since JOHN J. FOX is wealthy and is an attorney.

 35. Despite said explanations by said defendant, plaintiff instituted the within lawsuit.

 36. Plaintiff knew or should have known after July 2, 1984 that she had no basis for the instant litigation and that her claim was meritless and baseless.

 37. Plaintiff instituted this litigation intentionally in a conspiracy with her father against ...


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