
    Eugene M. Novak et al. v. Department of Environmental Protection et al.
    Superior Court, Worcester, SS
    No. 940775
    Memorandum Dated October 15, 1996
   Sosman, J.

Defendant Edwin J. Furman’s Special Motion to Dismiss Pursuant to G.L.c. 231, §59H is ALLOWED. The tort claims against Furman are based on his exercise of his right to petition. Plaintiffs have failed to meet their burden of demonstrating that Furman’s actions before the Conservation Commission, the Department of Environmental Protection and his state representative were “devoid of any reasonable factual support or any arguable basis in law.” G.L.c. 231, §59H. Accordingly, the remaining claims against Furman are dismissed.

However, the court will not award Furman any attorneys fees. At hearing, Furman’s counsel waived that portion of the motion seeking an award of fees, acknowledging that the late filing of his special motion to dismiss might make an award of fees unjust. The special motion to dismiss was filed long after the 60-day time limit, and significant discovery costs were incurred before Furman belatedly filed his special motion. At no time prior to that discovery did Furman advise plaintiffs of his intent to file this special motion or otherwise warn them that he would be seeking attorneys fees. Under the statute, the court may allow the late filing of a special motion to dismiss “upon terms it deems proper.” The court has allowed the late filing of Furman’s special motion to dismiss on the condition that the claim for attorneys fees be waived. 
      
      Editor’s Note: For earlier opinions in this matter see 3 Mass. L. Rptr. No. 15, 321 (April 10, 1995), and 6 Mass. L. Rptr. No. 7, 134 (January 13, 1997). For an opinion in a related matter see the immediately preceding opinion and 4 Mass. L. Rptr. No. 21, 452 (January 15, 1996).
     