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SJC-12554

BAHIG BISHAY & another1   vs.   MERRILL LYNCH CREDIT CORPORATION.2,3


                          October 17, 2018.


   Supreme Judicial Court, Superintendence of inferior courts.


     Bahig Bishay and Mary Costello (Bishays) appeal from a
judgment of the county court denying their petition for relief
under G. L. c. 211, § 3. As detailed more fully in Costello v.
Appeals Court, 480 Mass.     (2018), the Bishays were the
defendants in a summary process action in the District Court
commenced by Merrill Lynch Credit Corporation, whose successor
in interest is Bank of America, N.A. (bank). After a trial, the
bank was awarded possession of the subject property. The
judgment was affirmed, and we denied further appellate review.
Merrill Lynch Credit Corp. v. Costello, 92 Mass. App. Ct. 1113
(2017), S.C., 479 Mass. 1107 (2018). Shortly thereafter, an
execution issued on the judgment for possession. The Bishays
moved to vacate the execution. The motion was denied. The
following day, the Bishays filed a motion in the Appellate
Division of the District Court to stay or strike the execution,
arguing that the motion to vacate was wrongly denied where the
Bishays had filed a petition under G. L. c. 211, § 3, for relief
from the judgment for possession (prior petition), and their
appeal from the denial of that petition was still pending. The
Appellate Division denied that motion. The Bishays then filed

    1   Mary Costello, also known as Mary Bishay.

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

    3  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).
                                                                   2


the instant G. L. c. 211, § 3, petition, along with an emergency
motion to stay. A single justice of this court denied both the
petition and the motion without a hearing.

     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). Passing the question whether the
rule applies here, it is clear that the Bishays had, and to some
extent pursued, an avenue for relief in the ordinary appellate
process. The Bishays offer no reason in their memorandum why
they could not appeal to the Appellate Division, and if
necessary to the Appeals Court, from the denial of their motion
to vacate the execution; they only argue the merits of that
motion. Moreover, to the extent they argue that the execution
could not properly issue while their appeal from the denial of
their prior petition was pending,4 that issue is now moot, as we
have today affirmed that denial. Costello, supra. The Bishays
have demonstrated no error of law or abuse of discretion in the
denial of 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.

    4  Although we need not address the merits of this
contention, we note that, contrary to the Bishays' suggestion, a
G. L. c. 211, § 3, petition challenging a decision of the trial
court is not a "direct appeal" from that decision. A petition
under G. L. c. 211, § 3, invokes the court’s extraordinary power
of general superintendence. "'An action seeking relief under
G. L. c. 211, § 3, is regarded as a new and separate civil
action in the county court,' even if the petition challenges a
ruling of the trial court." Singer v. Rosenkranz, 453 Mass.
1012, 1013 n.4 (2009), quoting McMenimen v. Passatempo, 452
Mass. 178, 191 (2008). Moreover, a G. L. c. 211, § 3, petition
is not to be used in lieu of the ordinary appellate process and
does not "provide an additional layer of appellate review after
the normal process has run its course." E.g., Votta v. Police
Dep't of Billerica, 444 Mass. 1001, 1001 (2005).
