COMMONWEALTH OF MASSACHUSETTS MIDDLESEX, ss. MALDEN DISTRICT COURT __________________________________ ) PHILIP GREENSPUN, ) Plaintiff, ) v. ) COMPLAINT ) SMYLY AUTOS, INC. ) Defendant. ) __________________________________) 1. The plaintiff, Philip Greenspun (hereinafter referred to as "Greenspun") is a consumer with a usual place of residence of 55 Russell Street, Melrose, MA 02176. 2. The defendant, Smyly Autos, Inc. (hereinafter referred to as "Smyly") is a corporation engaged in the business of selling and servicing automobiles. Smyly is based at 700 Broadway, Malden, MA 02148 in Middlesex County. 3. On April 13, 1994, Greenspun delivered his 1993 Dodge Grand Caravan (the "Caravan") to Smyly requesting that they repair a rattle, a hesitating engine, the brakes, a mirror motor, and a door lock. Greenspun also requested an oil change and state inspection. 4. Smyly contracted to perform repairs under Greenspun's new car warranty and undertake the oil change and state inspection at Greenspun's expense. 5. On April 15, 1994, Greenspun picked up the Caravan at Smyly. Greenspun paid a bill of $33.28 for maintenance and $31.50 for his rental car (from Enterprise, operating out of the same business as Smyly). Greenspun found that his car was locked but that the alarm had not been set. Greenspun's Alpine 7525 radio/cassette player (the "Alpine") had been neatly removed from the Caravan dashboard, apparently by someone skilled in the art of disassembling dashboards, in possession of the proper tools, in possession of a key to the vehicle, and with plenty of time. 6. Greenspun requested the return of the Alpine from Smyly personnel, all of whom were evasive and denied that the Alpine had been in the Caravan when Greenspun brought it in for service. Smyly personnel refused to return or replace the Alpine, to apologize for having stolen the Alpine or having allowed it to be stolen, or to assist Greenspun in any way. 7. On April 16, 1994, Greenspun went to the Malden central police station at 5:10 pm and reported the stolen Alpine 7525 radio/cassette player, receiving police report number 9403151. 8. On April 19, 1994, Alec DeSimone telephoned Greenspun, identifying himself as a vice president of Smyly. DeSimone repeated Smyly's allegation that there was no radio in the car when Greenspun brought it in. DeSimone asserted that Smyly's actions were not covered by G.L. c. 93A, that Smyly went to court all the time, and that Smyly always won the numerous lawsuits people filed against it. DeSimone further asserted that he didn't care if Greenspun filed suit because Smyly's insurance company would pay for all litigation expenses and awards of damages. DeSimone refused to compensate Greenspun for the Alpine or his time and inconvenience. 9. On April 19, 1994, Greenspun sent by facsimile and first class mail a letter to Smyly setting forth the facts in the case and demanding compensation under Massachusetts General Laws ch. 93A. Greenspun gave Smyly 30 days in which to make a settlement offer. 10. Smyly made no unconditional offer of settlement at any time since April 19, 1994. Smyly and its insurance company insisted that, despite all evidence to the contrary (assuming the Alpine had been stolen while in Smyly's possession) that the act was not committed by a Smyly employee and that therefore Greenspun should file a claim with his car insurance carrier. Smyly and its insurance company expressly denied that a standard Massachusetts automobile insurance policy did not provide coverage while a vehicle was in the possession of an automobile dealer. 11. Greenspun suffered a loss of $800 for the stereo and installation and $2400 for lost work time. 12. Greenspun has given due notice to Smyly of his claim for $3200 in compensation. 13. The plaintiff is entitled to receive the sum of no less than $3200 from Smyly. COUNT I BREACH OF CONTRACT OF DEFENDANT SMYLY 1. That the defendant Smyly breached said defendant's contract with plaintiff Greenspun. 2. Wherefore, as a consequence of said breach by defendant Smyly the indebtedness of the defendant Smyly to the plaintiff be established by the Court. 3. That Smyly be ordered forthwith to pay the damages as outlined in paragraph 13 above together with interest from April 15, 1994. COUNT II NEGLIGENCE OF DEFENDANT SMYLY 1. That the defendant was negligent in its care of plaintiff's vehicle. 2. Wherefore, as a consequence of said negligence the indebtedness of the defendant to the plaintiff be established by the Court. 3. That Smyly be ordered forthwith to pay the damages as outlined in paragraph 13 above together with interest from April 15, 1994. COUNT III FRAUD OF DEFENDANT SMYLY 1. That the defendant concealed its knowledge of the events surrounded the theft of the Alpine with the intent of inducing the plaintiff to file a false claim with his own insurance carrier. 2. That the defendant knowingly misrepresented the responsibilities of a car insurance provider in the Commonwealth of Massachusetts with the intent of inducing the plaintiff to abandon his attempts at recovery from defendant and its insurance and file a false claim with his own insurance carrier. 3. Wherefore, as a consequence of said fraud the indebtedness of the defendant to the plaintiff be established by the Court. 4. That Smyly be ordered forthwith to pay the damages as outlined in paragraph 13 above together with interest from April 15, 1994. COUNT IV CONSUMER PROTECTION STATUTE 1. The plaintiff herein incorporates all of the allegations contained in paragraphs 1-13 and each of the Counts above. 2. At all relevant times hereto the defendant was engaged in trade or commerce. 3. The acts of the defendant herein were performed willfully and knowingly. 4. The acts of the defendant herein constitute unfair or deceptive acts or practices within the meaning of G.L. c. 93A, section 9. Wherefore the plaintiff requests this Court to enter a judgment for plaintiff against the defendant, award treble damages to plaintiff, award interest from the dates that plaintiff incurred expenses, and award costs and attorneys' fees to the plaintiff. That Court order such further and other relief as seems meet and just to it. THE PLAINTIFF DEMANDS A TRIAL BY JURY AS TO ALL ISSUES SO TRIABLE. Philip G. Greenspun 55 Russell Street Melrose, MA 02176 (617) 662-8735 Dated: May 23, 1994