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SJC-12522

              MARY COSTELLO1 & another2 vs. MERRILL
                    LYNCH CREDIT CORPORATION.3,4


                         October 17, 2018.


   Supreme Judicial Court, Superintendence of inferior courts.


     Mary Costello and Bahig Bishay (Bishays) appeal from a
judgment of the county court denying their petition for relief
under G. L. c. 211, § 3. The Bishays were the defendants in a
summary process action commenced in the District Court by
Merrill Lynch Credit Corporation, whose successor in interest is
Bank of America, N.A. (bank). The Bishays filed an answer and
counterclaim and, several months later,5 filed a motion to amend
their answer to assert new defenses and counterclaims and, for
the first time, to request a jury trial. That motion was
denied. After a bench trial, a judge in the District Court
found for the bank and awarded it possession but no damages.
The Appellate Division of the District Court affirmed the
judgment, including the order denying the motion to amend, as
did a panel of the Appeals Court, and we denied further

    1   Also known as Mary Bishay.

    2   Bahig Bishay.

    3   Now known as Bank of America, N.A.

    4  The petitioners also named the Appeals Court as a
respondent. The court is a nominal party only. See S.J.C. Rule
2:22, 422 Mass. 1302 (1996).

    5  The case in the District Court was stayed pending the
resolution of a case in the Land Court concerning title to the
same property.
                                                                   2


appellate review. Merrill Lynch Credit Corp. v. Costello, 92
Mass. App. Ct. 1113 (2017), S.C., 479 Mass. 1107 (2018). While
the Bishays' application for further appellate review was
pending, they filed their G. L. c. 211, § 3, petition, seeking
relief from the denial of their motion to amend. A single
justice of this court denied relief on the ground that the
Bishays had, and were pursuing, an avenue of relief in the
ordinary appellate process.

     The Bishays have filed a memorandum and appendix pursuant
to S.J.C. Rule 2:21, as amended, 434 Mass. 1301 (2001), which
requires a party challenging an interlocutory ruling of the
trial court to "set forth the reasons why 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). That rule does not apply here,
as the case in the District Court has gone to final judgment.
See Carrington v. Commonwealth, 473 Mass. 1015, 1015 (2015).
Nevertheless, it is clear that the Bishays' claims could be and
were raised in the ordinary appellate process. Contrary to the
Bishays' suggestion, the fact that further appellate review is
granted only in our discretion does not render the appellate
process inadequate. "The court's extraordinary power of general
superintendence under c. 211, § 3, is 'exercised sparingly, not
as a substitute for the normal appellate process or merely to
provide an additional layer of appellate review after the normal
process has run its course.'" Id., quoting Doyle v.
Commonwealth, 472 Mass. 1002, 1003 (2015). See Votta v. Police
Dep't of Billerica, 444 Mass. 1001, 1001 (2005). The single
justice correctly denied extraordinary relief.

                                   Judgment affirmed.

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

    Mary Costello, pro se.
    Bahig Bishay, pro se.
