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SJC-12522

MARY COSTELLO1 & another2 vs. MERRILL 

LYNCH CREDIT CORPORATION.3,4

October 17, 2018.

Supreme Judicial Court, Superintendence of inferior courts.

Mary Costello and Bahig Bishay (Bishays) appeal from a 

judgment of the county court denying their petition for relief 

under G. L. c. 211, § 3. The Bishays were the defendants in a

summary process action commenced in the District Court by 

Merrill Lynch Credit Corporation, whose successor in interest is 

Bank of America, N.A. (bank). The Bishays filed an answer and 

counterclaim and, several months later,5 filed a motion to amend 

their answer to assert new defenses and counterclaims and, for 

the first time, to request a jury trial. That motion was

denied. After a bench trial, a judge in the District Court 

found for the bank and awarded it possession but no damages. 

The Appellate Division of the District Court affirmed the 

judgment, including the order denying the motion to amend, as 

did a panel of the Appeals Court, and we denied further 

 

1 Also known as Mary Bishay.

2 Bahig Bishay.

3 Now known as Bank of America, N.A.

4 The petitioners also named the Appeals Court as a

respondent. The court is a nominal party only. See S.J.C. Rule 

2:22, 422 Mass. 1302 (1996).

5 The case in the District Court was stayed pending the 

resolution of a case in the Land Court concerning title to the 

same property.
2

appellate review. Merrill Lynch Credit Corp. v. Costello, 92 

Mass. App. Ct. 1113 (2017), S.C., 479 Mass. 1107 (2018). While 

the Bishays' application for further appellate review was 

pending, they filed their G. L. c. 211, § 3, petition, seeking 

relief from the denial of their motion to amend. A single 

justice of this court denied relief on the ground that the

Bishays had, and were pursuing, an avenue of relief in the 

ordinary appellate process. 

The Bishays have filed a memorandum and appendix pursuant 

to S.J.C. Rule 2:21, as amended, 434 Mass. 1301 (2001), which 

requires a party challenging an interlocutory ruling of the 

trial court to "set forth the reasons why review of the trial 

court decision cannot adequately be obtained on appeal from any 

final adverse judgment in the trial court or by other available 

means." S.J.C. Rule 2:21 (2). That rule does not apply here, 

as the case in the District Court has gone to final judgment. 

See Carrington v. Commonwealth, 473 Mass. 1015, 1015 (2015). 

Nevertheless, it is clear that the Bishays' claims could be and 

were raised in the ordinary appellate process. Contrary to the 

Bishays' suggestion, the fact that further appellate review is 

granted only in our discretion does not render the appellate 

process inadequate. "The court's extraordinary power of general 

superintendence under c. 211, § 3, is 'exercised sparingly, not 

as a substitute for the normal appellate process or merely to 

provide an additional layer of appellate review after the normal 

process has run its course.'" Id., quoting Doyle v. 

Commonwealth, 472 Mass. 1002, 1003 (2015). See Votta v. Police 

Dep't of Billerica, 444 Mass. 1001, 1001 (2005). The single 

justice correctly denied extraordinary relief.

Judgment affirmed.

The case was submitted on the papers filed, accompanied by 

a memorandum of law.

Mary Costello, pro se.

Bahig Bishay, pro se.