Berish v. Bornstein, 21 Mass. L. Rptr. 530 (2006)

Citation: Berish v. Bornstein, 21 Mass. L. Rptr. 530 (2006)
Parent Document: Berish v. Bornstein, 21 Mass. L. Rptr. 530 (2006)
Jurisdiction: Massachusetts (state)
Effective Date: 2006-05-22
Original Source: https://www.courtlistener.com/opinion/8356288/berish-v-bornstein/ ↗

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Under that doctrine, the statute of limitations in a shareholder derivative action is tolled while a corporate plaintiff is dominated by the wrongdoer, and does not begin to run until knowledge is gained by those who have the power and responsibility to act on the corporation’s behalf and are independent of the wrongdoing. Demoulas v. Demoulas Super Markets, Inc., 424 Mass. 501, 522-23 (1997). This Court is not aware of any Massachusetts appellate decision explicitly applying this doctrine in the context of a developer-dominated condominium association. See, e.g., Beaconsfield Townhouse Condo. Trust v. Zussman, 49 Mass.App.Ct. 757, 761, rev. den., 432 Mass. 1109 (2000) (using the date that the condominium trust acquired independent trustees as the starting point for a statute of limitations analysis in a case involving roof problems). Cf. Libman v. Zuckerman, 33 Mass.App.Ct. 341, 345 (1992) (because defendants failed to object to master’s report, court declined to review master’s conclusion that condominium association was estopped from raising statute of limitations in part because developers controlled the association, which made decisions concerning common areas and litigation).9 This Court declines to rule that the statute of limitations in this case was tolled based on adverse domination, absent appellate authority for applying that doctrine in this context. Cf. Charley Toppino & Sons, Inc. v. Seawatch Marathon Condo. Assoc., Inc., 658 So.2d 922, 925 (Fla. 1994) (discussing §718.124 Fla. Stat. (1987), which provides that statute of limitations for claims by a condominium association “shall not begin to run until the unit owners have elected a majority of the members of the board of administration” in order to prevent developer from retaining control over association long enough to bar potential cause of action which unit owners might otherwise wish to pursue).10 B. Accrual of Claims

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