" The plaintiff's Answers to Interrogatories have "established at least the proverbial toehold required to avoid summary judgment." Rossi v. OceanviewCountry Club, 1997 Mass. App. Div. 197, 199 citing Scotti v. Arrow Elecs., Inc., 37 Mass. App. Ct. 954, 955 (1994). See Aylward v. McCloskey, 412 Mass. 77, 80, n. 3 "In circumstances where some act or failure to act has changed the condition of naturally accumulated snow and ice, and the elements alone or in connection with the land become a hazard to lawful visitors, then a defect may exist, creating liability in the owner or occupier."
Koch Poultry Co., Inc. v. Ottoman CustomProcessors, Inc., 1996 Mass. App. Div. 124, 125. Because the Expedited Appeal serves as the trial court record in an 8A appeal `all relevant documents must be physically attached to, or included in, the Expedited Appeal document.' Rossi v. OceanviewCountry Club, 1997 Mass. App. Div. 197, 198. `It is incumbent upon the appellant to insure that the Expedited Appeal constitutes an accurate, complete and objective trial court record.' Scalia v. Liberty Mutual Ins. Co., [ 1995 Mass. App. Div. 69,] 70-71.Massachusetts Higher Educ. Assistance Corp. v. McCarthy, 2000 Mass. App. Div. 76. Rule 8A(b) permits the appellee to file timely objections to the appeal where the expedited appeal record is inaccurate or incomplete. Wine v. Wu, 46 Mass. App. Ct. 931, 932 (1999).
" Collins v. Collins, 201 Mass. 151, 152 (1937). The creation of the State Building Code did not alter the common law principle that there is no liability in negligence for a landowner's failure to remove a natural accumulation of ice and snow. Rossi v. Oceanview Country Club, 1997 Mass. App. Div. 197, n. 2. "We reject, as an initial matter, the notion that any of the provisions of the building Code and other rules and regulations relied on by the plaintiffs create a new duty making a homeowner liable for violations of the State Building Code." St. Germaine, supra.
In these circumstances, the trial judge was warranted in finding the defendants liable, not for any failure to remove a natural accumulation of ice, but for a failure to maintain the premises in a reasonably safe condition. See Barry v. Beverly Enterprises-Massachusetts, Inc., 418 Mass. 590, 592 (1994); Rossi v. Oceanview Country Club, 1997 Mass. App. Div. 197, 199. See also Aylward v. McCloskey, 412 Mass. 77, 80 n. 3 (1992) ("in circumstances where some act or failure to act has changed the condition of naturally accumulated snow and ice, and the elements alone or in connection with the land become a hazard to lawful visitors, then a defect may exist, creating liability in the owner or occupier").
1. The Tenant's initial claim of error arises out of his requests for admissions numbers 7 and 8, to which the Landlord did not respond. The Tenant argues that the trial judge erred in refusing to grant his requests for findings of fact which were based on those unanswered requests for admissions. Requests for admissions 7 and 8 stated, respectively: "Plaintiff is relying on a 60 day notice to terminate in this action, " and "The tenancy agreement requires one party to give the other at least a 90 Day Notice to Terminate." It was the Tenant's responsibility, as appellant, to prepare and submit the Rule 8A expedited appeal record which is before us. Singer v.DeMartino, 1999 Mass. App. Div. 7, 8 n. 1: Rossi v. Oceanview CountryClub, 1997 Mass. App. Div. 197, 198. There is nothing in that record which indicates that the Tenant's requests for admissions were ever introduced into evidence during the trial, as would be necessary for them to be given effect. S. Kemble Fischer Realty Trust v. Board of Appeals ofConcord, 9 Mass. App. Ct. 477, 478-479 (1980) (requests for admissions must be offered into evidence so that, inter alia, a party may seek relief from their effect); Meagher v. United States Fidelity Guar Co., 1994 Mass. App. Div. 134, 136.
If the defendant deemed the inclusion of a transcript to be essential to appellate review of its allegations of error, it should not have proceeded under Rule 8A. "The Expedited Appeal serves as the trial court record in a Rule 8A appeal, and copies of all relevant documents must be physically attached to, or included in, the Expedited Appeal document Rule 8A does not provide for, or permit, a transcript of the evidence, a record appendix, or appendices to the parties' briefs." Rossiv. Oceanview Country Club, 1997 Mass. App. Div. 197, 198. The form of the defendant's appeal more closely resembles an appeal on the record of proceedings pursuant to Rule 8C. The plaintiff has raised no objection to this procedural misstep, and we elect to proceed to the merits.
Scalia v. LibertyMutual Ins. Co., 1995 Mass. App. Div. 69, 70-71. See also Hendry v.Broadway Foods, Inc., 1998 Mass. App. Div. 37, 38 n. 3; Rossi v.Oceanview Country Club, 1997 Mass. App. Div. 197, 198. The Tenants objected in writing to the Landlord's expedited appeal on the proper grounds that it "presented the `undisputed facts' in an argumentative, overbroad way . . . [and] excluded certain facts and mischaracterized the facts that were included. . . .
Because the Expedited Appeal serves as the trial court record in an 8A appeal "all relevant documents must be physically attached to, or included in, the Expedited Appeal document." Rossi v. Oceanview Country Club, 1997 Mass. App. Div. 197, 198. "It is incumbent upon the appellant to insure that the Expedited Appeal constitutes an accurate, complete and objective trial court record." Scalia, supra, at 70-71.
Marr Equip. Corp. v. I.T.O. Corp., 14 Mass. App. Ct. 231, 235 (1982). See also Scotti v. Arrow Electronics, Inc., 37 Mass. App. Ct.954, 955 (1994); Rossi v. Oceanview Country Club, 1997 Mass. App. Div. 197, 199. Summary judgment cannot be entered solely on the basis of the apparent likelihood that the moving party will prevail at a trial on the merits. Lindsay v. Romaro, supra at 773; Parentv. Stone Webster Engineering Corp., 408 Mass. 108, 113 (1990); Foleyv. Matulewicz, 17 Mass. App. Ct. 1004, 1005 (1984).
The additional evidence upon reconsideration included Altman's affidavit, the Mesbahis' affidavit and the testimony of the two bank employees. Viewing this evidence in the light most favorable to Altman as the party opposing the Mesbahis' summary judgment motion, White v. Boston, 428 Mass. 250, 251-252 (1998); Dasha v.Adelman, 45 Mass. App. Ct. 418, 421 (1998); Rossi v. OceanviewCounty Club, 1997 Mass. App. Div. 197, 199, it would appear that a clear factual dispute emerged at the reconsideration hearing. The Mesbahis' position was that Citicorp's denial of their mortgage application was sufficient to terminate their obligations under the purchase and sale agreement.