BENNINGTON — The owners of a Depot Avenue procuring center are trying to find dismissal of a lawsuit filed last month by a likely purchaser soon after a planned $700,000 sale ground to a halt.
The purchase of the middle at the corner of Primary and Depot streets stalled soon after a correct-of-way challenge surfaced involving a neighboring house. The proposed purchaser, Dionysus LLC, an entity controlled by Paul Carroccio of TPW True Estate, submitted go well with in early March above the problem towards center operator Aubuchon Realty Co.
In filings this month, Aubuchon denied the breach of contract statements of Dionysus, and also filed a counterclaim in opposition to the abutting property owner, Northeastern Baptist University, which asserted it has a proper-of-way access across the purchasing middle ton, primarily based on past permitted use.
Dionysus had cited that right-of-way claim and identified as on Aubuchon to produce a title free of encumbrances to make it possible for the sale to go by.
In accordance to the grievance in Bennington Outstanding Court docket Civil Division, “Dionysus, LLC, seeks to require Aubuchon Realty Organization Inc. to produce the marketable title to the two Bennington attributes it promised to sell in the contract it designed with Dionysus, LLC, and for dollars damages brought about by breach of agreement.”
The 1.7-acre purchasing center is made up of Anytime Physical fitness, Hollister’s Equipment and T.J.’s Fish Fry, and for many decades contained an Aubuchon Hardware keep. The center sits across from the Depot Avenue parcel exactly where Carroccio and a companion are arranging a four-story, mixed-use developing with 60 rental housing units. The proposed building job is not pointed out in the fit over the procuring middle purchase.
ALLEGATIONS DENIED
In its response to the suit, the Massachusetts-dependent Aubuchon Realty denied allegations of breach of contract and breach of implied covenant of excellent faith and reasonable working.
The go well with claimed that Aubuchon agreed in August 2021 “to offer to Dionysus, and Dionysus agreed to obtain, the lands and premises described thereon at the selling price [$700,000] and on the other conditions established forth therein.” The closing day was set for Nov. 3, in accordance to the go well with.
Nonetheless, the grievance states that Dionysus learned in late Oct that North Baptist Church claimed it experienced the right to use the home for access to its [adjacent] residence and that it allegedly had accomplished so for numerous yrs.
Northeastern Baptist Higher education is detailed as possessing the previous Kirkside Motor Lodge property to the west of the fish fry site. A quick gravel accessway at the rear of the developing — now used as a college dormitory — is at the western conclude of the purchasing center assets. The go well with criticism claims that Dionysus “gave recognize to Aubuchon that the title was not marketable in light of NBC’s [right-of-way] declare,” and the observe to Aubuchon “requested that it obvious the cloud against the title and granted an extension of the closing date to manage Aubuchon fair time to do so.”
SEEKS DISMISSAL
The Aubuchon Realty reaction, submitted very last 7 days by lawyer L. Brooke Dingledine, of Valsangiacomo, Detora & McQuesten, of Barre, seeks dismissal of the Dionysus match and cites various affirmative defenses — like that there is “no impairment to marketable title,” that there is “insufficient assert of prescriptive easement” that use of the access “was permissive” only that the entry use “was de minimus [or of minimum importance] and does not render title unmarketable,” and that the purchaser had waived even further investigation of a suitable-of-way likelihood or failed to execute owing diligence.
The Aubuchon reaction also contends, between other factors, that there was a breach of agreement by Dionysus and there was “bad religion, ulterior motive.”
Aubuchon asks the court to dismiss the Dionysus complaint and seeks contractual and compensatory damages with interest punitive damages and the costs and charges of the accommodate, and “all pre-judgment desire and article-judgment fascination at the statutory charge of 12 per cent for every annum.”
As component of its response to the accommodate, Aubuchon also states that “there is no fair chance of achievements [of the suit] on the deserves, as it is the plaintiff [Dionysus ] who is in breach of the agreement and refuses to total the transaction.”
Dionysus “waived its due diligence period, soon after a actual physical inspection of the premises, and now refuses to take title to the home dependent upon a negotiation correspondence from Sarah Wilson, Northeastern Baptist College’s legal professional, who was trying to negotiate a deeded easement or lease from the new property owner,” in accordance to the Aubuchon submitting.
Aubuchon Realty also requests a declaratory ruling from the court docket pertaining to the prescriptive easement assert of Northeastern Baptist School, “and provides a third-party claim from NBC for damages for cloud on title to actual estate … .”
Arrived at by mobile phone, Dingledine explained that Choose John Valente has taken underneath advisement a movement by Dionysus to put an attachment on the home, which Aubuchon opposes.
Wilson, of Bennington, could not be arrived at Thursday for comment. Carroccio also could not be attained Thursday.