After four years of trial and appellate work, Of Counsel Lenard Zide secured a victory for his client in a novel commercial summary process case. In a published decision issued on August 24, 2026, the Massachusetts Appeals Court agreed with Mr. Zide’s client’s position. A summary of the decision is below:
In Eng v. Chen’s Food Enterprise, Inc., the landlord (our client) brought a summary process action against a commercial tenant for nonpayment of rent. The first SP action was dismissed as landlord failed to first issue a written termination notice as required by the Lease (client could not find the original lease). The landlord cured this defect by serving a new notice of termination before commencing the second summary process action.
Following a three-day bench trial (Fiandaca, J.), the Court rejected the tenant’s claim-preclusion defense and entered judgment for the landlord for possession and $198,000 in unpaid rent. The Trial judge concluded that, as the first dismissal resulted from a procedural error, as the issue of unpaid rent was never adjudicated, there was no adjudication on the merits.
Tenant appealed. The Appellate Division (AD) reversed, holding that the first involuntary dismissal operated as an adjudication on the merits and that claim preclusion barred the second action. The landlord appealed the AD reversal to the Appeals Court (AC), arguing that G.L. c. 239, § 7 expressly provides that a judgment in a summary process action “shall not be a bar” to a subsequent action for possession or damages.
The AC reversed the AD finding that the AD’s application of claim preclusion could not be reconciled with the plain language of G.L. c. 239, § 7. The AC concluded that the statute authorized the landlord to bring the second action. The case was remanded to the AD to address the defendants’ remaining arguments.
Congratulations to Mr. Zide on this victory for his client.
A link to the full opinion can be found here.
Lenard B. Zide is a Commercial/Residential Real Estate attorney specializing in Landlord and Tenant Law, complex commercial lease negotiations, land acquisition and development, Retail/Restaurant Consultation, Civil Trial Practice and Appeals.
Mr. Zide has spent his entire professional life immersed in all-things real estate initially identifying, acquiring and improving raw land and focusing now on commercial and restaurant consultation, development and lease negotiations, Landlord/Tenant Law, and Civil Trial Practice and Appeals. Born and raised in Boston, Mr. Zide is also CEO of Block Island Brands, manufacturers of all-natural health and beauty products, sunscreens and sparkling juice beverages. In his spare time, he enjoys playing Tennis and squash, writing and performing music, carpentry and fine woodworking.