Opinion
No. 15–P–1166.
12-06-2016
Greg GALE v. Neil FEINBERG.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Neil Feinberg, appeals from a harassment prevention order (order) issued against him pursuant to G.L. c. 258E. The plaintiff, Greg Gale, is a neighbor of Feinberg's and obtained the order after a series of verbal altercations between Feinberg and Gale's family, largely his then nineteen year old son, Jonah. For the reasons that follow, we conclude that the order should not have been issued.
After his motion to dismiss the appeal was denied, Gale filed a letter with this court stating that he does not feel the need to maintain the order, which had expired, and requesting that the appeal be dismissed. We treated that letter as a motion to dismiss the appeal, which we denied. Gale did not appear for oral argument.
In order to obtain a harassment prevention order a plaintiff must demonstrate that the defendant's conduct was "aimed" at him or her. O'Brien v. Borowski, 461 Mass. 415, 420 (2012), citing Commonwealth v. Welch, 444 Mass. 80, 89 (2005) ("Both civil and criminal harassment require proof of three or more acts of wilful and malicious conduct aimed at a specific person"). General Laws c. 258E, § 1, inserted by St.2010, § 23, defines harassment as "3 or more acts of willful and malicious conduct aimed at a specific person committed with the intent to cause fear, intimidation, abuse or damage to property and that does in fact cause fear, intimidation, abuse or damage to property"; or an act that "by force, threat or duress causes another to involuntarily engage in sexual relations" or that violates a series of enumerated crimes, including sexual assault and criminal harassment. Accordingly, a plaintiff must show individualized harm that satisfies the statutory definition of harassment. See Seney v. Morhy, 467 Mass. 58, 60 (2014).
In the present case, Gale only cited one—minor if not harmless—incident that included contact between himself and Feinberg. The rest of the cited verbal altercations were between Feinberg and Jonah. As such, Gale did not have standing to pursue a harassment prevention order against Feinberg because the cited incidents did not involve him. The August 3, 2015, harassment prevention order against the defendant is vacated.
While we need not reach the merits of the order, it is unlikely that there was sufficient evidence to support the order's issuance even had the incidents involved Gale rather than his son.
So ordered.