David Mack Quoted in “Summary judgment wrongly granted in easement dispute” in Mass. Lawyers’ Weekly

OCM partner David Mack is quoted in the cover story in this week’s issue of Massachusetts Lawyers’ Weekly. The case, Benvenuto, et al. v. Hanover, LLC et al., overturned the allowance of a motion for summary judgment where the trial judge disregarded testimony by a witness that contradicted earlier testimony from the same witness within the same deposition. The Appeals Court held that the well-established rule that a party may not defeat summary judgment through an affidavit that contradicts prior deposition testimony does not apply where a disinterested witness gives conflicting testimony within the same deposition, even if one version of events is clearly more credible than the other version.  As David noted, if you want to move for summary judgment, you have to make sure a witness clarifies conflicting testimony and clearly adopts one version of his or her testimony. Otherwise, the “trial judge will be constrained by the rule that requires all inferences to be drawn in favor of the nonmoving party, and your motion will be denied.”