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23-P-73 Appeals Court

BRETT LYMAN vs. SASHA LANSER.

No. 23-P-73.

Middlesex. November 8, 2023. - March 7, 2024.

Present: Sacks, Brennan, & D'Angelo, JJ.

Dog. Animal. Tenants in Common. Injunction. Practice, Civil, 

Injunctive relief, Interlocutory appeal. Appeals Court, 

Appeal from order of single justice. Frauds, Statute of. 

Contract, Performance and breach, Construction of contract, 

Specific performance.

Civil action commenced in the Superior Court Department on 

June 24, 2022.

A motion for a preliminary injunction was heard by Shannon 

Frison, J. 

A proceeding for interlocutory review was heard in the 

Appeals Court by Grant, J.

Jeremy M. Cohen (Robert D. Stewart also present) for the 

plaintiff.

Philip A. Bongiorno for the defendant.

SACKS, J. The plaintiff brought this Superior Court action 

against his former romantic partner, the defendant, seeking 

specific performance of an agreement to equally share possession 
2

of their jointly-owned property, a Pomeranian dog named Teddy 

Bear. The plaintiff alleged that Teddy Bear is a "specific and 

unique chattel." The plaintiff sought, and a motion judge

issued, a preliminary injunction requiring the defendant to 

share Teddy Bear with the plaintiff for alternating two-week 

periods. The defendant sought relief from a single justice of 

this court, arguing that, although the dog was coowned, the 

judge had no authority to order "shared custody" of a dog. The 

single justice vacated the preliminary injunction, concluding 

that the motion judge had improperly treated Teddy Bear as if he 

were the parties' child. The plaintiff appealed the single 

justice's order to this court. We conclude that there was 

insufficient basis to vacate the preliminary injunction, and 

therefore we reverse the single justice's order.

Background. We draw our summary of facts from the verified 

complaint and the plaintiff's affidavit in support of his motion 

for a preliminary injunction; the defendant submitted no 

evidence in opposition.1 At the time the parties met in 2016, 

the plaintiff and a previous romantic partner coowned a 

Pomeranian dog and shared possession of him on an alternating 

1 Attached to the defendant's memorandum in opposition was a 

certificate indicating that she had registered Teddy Bear as an 

emotional support animal in an Internet database. The 

certificate was dated November 30, 2021, which was after the 

parties' breakup. 
3

basis. The plaintiff and the defendant "loved" that dog and 

found it hard to have him only part time. They decided to buy 

their own Pomeranian that they "could share together."

The parties agreed that if they acquired a dog and then 

later separated, they would share the dog equally. In June of 

2018, they purchased a male Pomeranian puppy and named him Teddy 

Bear Lanser-Lyman. Although the ownership registration form 

bore only the plaintiff's name, the parties evenly split the 

cost of buying Teddy Bear. During the time the parties remained 

together, they continued to share the responsibility of caring 

for and training Teddy Bear, although the plaintiff asserted 

that he bore a significant majority of the costs, spending about 

$8,000 during that time. 

In the summer of 2021, the parties' relationship ended, and 

the defendant moved out of their shared residence. The parties 

"communicated regularly about [their] intended plan to share 

Teddy Bear on an approximately equal basis." They sent text 

messages to each other "to work out as many details as possible

to set up a predictable routine" for sharing him. In early 

August the defendant proposed that they exchange possession of 

Teddy Bear approximately every week, and it appears they 

exchanged possession of him several times that month and the 

next. Until January of 2022, the parties shared the dog 

amicably, although the amount of time that the plaintiff had 
4

possession of Teddy Bear steadily decreased, in part due to the 

plaintiff's conflicting family obligations. 

In January of 2022, the defendant moved to a different 

apartment, and so the parties agreed to temporarily suspend 

their sharing arrangement to allow Teddy Bear to adjust to the 

defendant's new home. This temporary suspension continued until 

March of 2022 when, according to the plaintiff, the defendant 

cut off all communication with him and refused to allow him 

access to Teddy Bear. 

The plaintiff then commenced this action for conversion and 

breach of contract. Expressly disclaiming any request for 

damages, the plaintiff, in his verified complaint, sought only 

equitable relief, including specific performance of the parties' 

agreement to equally share possession of Teddy Bear. 

The plaintiff moved for a preliminary injunction to restore 

his asserted joint ownership and possessory rights to the status 

quo that existed before the defendant refused him access to 

Teddy Bear. He argued that although "the law regards . . . dogs 

as property, dogs are property of a distinctive type and nature,

living creatures with distinct personalities and [a] finite life

span, clearly distinguishable from inanimate personal property." 

He asserted that the defendant's actions were causing him 

irreparable harm, in the form of the loss of Teddy Bear's 

companionship, which could not be remedied by money damages. 
5

After a hearing, the motion judge credited the plaintiff's 

evidence of a binding agreement for shared possession. She 

found that "[t]he parties each paid half of the price of the 

dog, expressed intent to share custody even if they separated, 

and acted on that agreed/shared custody until Jan[uary] 202[2]." 

Her preliminary injunction, referring to "the property known as 

Teddy Bear," ordered that "[b]ased upon joint ownership rights, 

both parties shall be allowed to have Teddy Bear for alternating 

[two]-week periods. Beginning on [November 27, 2022], Teddy 

Bear will be exchanged at a mutually agreeable location for each 

exchange (Sunday-Sunday)." 

The defendant then petitioned a single justice of this 

court for relief from the preliminary injunction. See G. L. 

c. 231, § 118, first par. The single justice acknowledged as 

undisputed that the parties had equally split the cost of 

purchasing the dog and agreed to co-own him. The single justice 

nevertheless found no Massachusetts authority for treating a 

dog, which is personal property, as unique, such that an order 

for specific performance of their sharing agreement could be 

appropriate. The single justice noted a distinction between 

specific enforcement of written contracts concerning real 

property and an oral contract concerning personal property.

The single justice concluded that the motion judge abused 

her discretion by "effectively treat[ing] the dog . . . as if it 
6

were the parties' child," instead of as personal property. The 

single justice therefore vacated so much of the preliminary 

injunction as required the parties to alternate possession of 

Teddy Bear.2 The plaintiff then appealed to this court. See 

G. L. c. 231, § 118, second par.

Discussion. 1. Standard of review. When we review a 

single justice's order issued under G. L. c. 231, § 118, first 

par., "[t]he essential legal question" before us is "whether the 

single justice abused [her] discretion by entering an order 

without having a supportable basis for doing so" (citation 

omitted). Aspinall v. Philip Morris Cos., 442 Mass. 381, 390 

(2004), S.C., 453 Mass. 431 (2009). "Answering that question, 

however, requires examination of the trial [court] judge's 

order," because:

"[t]he single justice is not a fact finder and must accept 

any relevant facts found by the judge when those facts have 

support in the record. Considerable deference is also 

required on the part of the single justice to 

determinations by the judge, especially where those 

determinations involve an exercise of discretion. In most 

cases, based on the deference normally accorded 

determinations by the judge who heard the matter in the 

first instance, the single justice will decline to act on 

an application for relief under G. L. c. 231, § 118, first 

par., that does not disclose clear error of law or abuse of 

discretion." (Quotation and citation omitted.)

Id. 

2 The single justice left in place those parts of the 

preliminary injunction barring the defendant from transferring 

ownership of Teddy Bear or removing him from the Commonwealth. 
7

The motion judge, in turn, was governed by the familiar 

preliminary injunction standard:

"To succeed in an action for a preliminary injunction, a 

plaintiff must show (1) a likelihood of success on the 

merits; (2) that irreparable harm will result from denial 

of the injunction; and (3) that, in light of the 

plaintiff's likelihood of success on the merits, the risk 

of irreparable harm to the plaintiff outweighs the 

potential harm to the defendant in granting the injunction.

. . . When . . . a party seeks to enjoin governmental 

action, the court also considers whether the relief sought 

will adversely affect the public." (Citation omitted.)

Tri-Nel Mgt., Inc. v. Board of Health of Barnstable, 433 Mass. 

217, 219 (2001). "At the preliminary injunction stage, an 

appellate court will not reverse the action of the motion judge 

if there is a supportable legal basis for that action." Boston 

Harbor Commuter Serv., Inc. v. Massachusetts Bay Transp. Auth., 

46 Mass. App. Ct. 122, 123 (1999). Of course, "[i]f the basis 

on which the preliminary injunction was issued is wrong as a 

matter of law, the preliminary injunction cannot be sustained." 

Doe v. Attorney Gen. (No. 1), 425 Mass. 210, 212 (1997).

2. Likelihood of success on the merits. As already 

stated, there is no dispute that the parties jointly own Teddy 

Bear. Domestic animals are personal property, see Irwin v. 

Degtiarov, 85 Mass. App. Ct. 234, 237 (2014), and may be owned 

by a tenancy in common,3 see Goell v. Morse, 126 Mass. 480, 481

3 Personal property also may be owned through a joint 

tenancy or through a tenancy by the entirety. See Marble v. 
8

(1879) (parties who each contributed to purchase price "were the 

owners as tenants in common of the horse"). 

a. Existence of agreement. The motion judge, having found 

that the parties evenly split the purchase price of Teddy Bear, 

"expressed intent to share custody even if they separated, and 

acted on that agreed/shared custody" for some months after their 

separation, could view the plaintiff as having stated a 

meritorious claim for breach of a contract to equally share

possession of Teddy Bear.4 There is no doubt that tenants in 

common may make an agreement governing their respective rights 

in personal property. To be sure, our case law most often 

Jackson, 245 Mass. 504, 507 (1923). Absent any contrary 

indication, it could be presumed that the parties owned Teddy 

Bear as tenants in common rather than as joint tenants. Cf.

Battle v. Howard, 489 Mass. 480, 484–485 (2022) ("unless the 

intent to create a joint tenancy is clearly expressed, a deed or 

devise will be treated as creating a tenancy in common"). This 

case does not require us to determine whether the parties own 

Teddy Bear as tenants in common or as joint tenants.

4 The judge did not address the plaintiff's conversion 

claim, and we need not do so either. Because the issue may 

arise in further proceedings in the trial court, we do address 

one limited aspect of the defendant's response to that claim --

that one coowner cannot seek a remedy for conversion by the 

other, "since both are equally entitled to possession and the 

possession of one is the possession of both." Johnson v. 

Nourse, 258 Mass. 417, 419 (1927). Cf. Jarvis v. De Peza, 251 

Mass. 447, 448 (1925) (similar, in replevin action to obtain 

possession of jointly owned car). These cases have no apparent 

application to a claim against a coowner seeking specific 

performance of an agreement to share possession of property in a 

particular manner. Cf. Goell, 126 Mass. at 482 (where tenants 

in common agreed neither party should sell horse without other's 

agreement, sale by one was conversion).
9

addresses agreements governing the parties' rights to transfer 

ownership interests in such property. See Goell, 126 Mass. at 

482 (proceeds from sale of horse); Somerby v. Buntin, 118 Mass. 

279, 287 (1875) (patent); Clark v. Flint, 22 Pick. 231, 241 

(1839) (brig). We see no reason, however, why tenants in common 

may not make enforceable agreements regarding their rights visà-vis each other to possess and use their property. See 

Somerby, supra (oral agreement to hold letters patent jointly 

could be enforced through order for specific performance). Cf.

Tucci v. DiGregorio, 358 Mass. 493, 497 (1970) (if tenants in 

common of premises including two-family house could not agree 

that each would occupy a particular half of premises, it could 

be partitioned under G. L. c. 241). At this preliminary 

injunction stage, at least, the defendant has offered no such 

reason.

That the claimed agreement here is lacking in detail is not 

fatal to the plaintiff's likelihood of success on the merits. 

Although "[a] contract must be complete and definite to support 

a decree for specific performance, . . . a contract embodying 

all the material factors for the accomplishment of a transaction 

undertaken by the parties is not incomplete or indefinite 

because it fails to express in terms some matters concerning the 

performance of the contract and reasonably necessary for the 

attainment of its object." Shayeb v. Holland, 321 Mass. 429, 
10

430 (1947). For example, even where a contract does not 

expressly state "an essential element" such as the purchase 

price of real estate, the contract may reasonably be interpreted 

to require "a fair and reasonable price." Id. at 432. 

Here, the plaintiff stated in his affidavit supporting his 

motion for a preliminary injunction that the agreement was to 

"share Teddy Bear on an equal basis" in the event the parties 

separated. Such an agreement might be interpreted to require 

that possession be shared in a reasonable manner. The record 

indicated that the parties had successfully shared possession of 

Teddy Bear for many weeks. Thus, the judge preliminarily 

ordered that Teddy Bear be exchanged every two weeks on Sunday, 

at a mutually agreeable location. Moreover, in further 

proceedings, the plaintiff may be able to establish additional 

terms of the agreement. The judge did not abuse her discretion 

or otherwise err in concluding that the plaintiff had a 

likelihood of success on his contract claim.

b. Availability of specific performance. Agreements 

regarding personal property ownership may be specifically 

enforced. "Equity will specifically enforce a contract relating 

to chattels, if the remedy at law for damages would be 

inadequate, and grant relief for delivery of a thing wrongfully 

withheld." Dahlstrom Metallic Door Co. v. Evatt Constr. Co., 

256 Mass. 404, 415 (1926). See Poltorak v. Jackson Chevrolet 
11

Co., 322 Mass. 699, 700 (1948) (specific performance available 

for contracts for sale of chattels where damages for breach are 

not equivalent of promised performance). See also Somerby, 118 

Mass. at 287. Actions for specific performance are within the 

Superior Court's general equity jurisdiction under G. L. c. 214, 

§ 1. See Derby v. Derby, 248 Mass. 310, 313-314 (1924); 

Somerby, supra (construing predecessor statute, Gen. Sts. 

c. 113, § 2). See also G. L. c. 214, § 1A (remedy in damages 

does not bar action for specific performance if damages would 

not provide equivalent of performance).

It is no bar to specific performance that an agreement is

not in writing. "Even oral contracts will be specifically 

enforced, when the case is not within the statute of frauds, and 

no complete and adequate remedy can be had by an action at law." 

Somerby, supra. See Derby, 248 Mass. at 313–314. Contrary to 

the defendant's Statute of Frauds argument here, the claimed 

agreement to share Teddy Bear equally in the event the parties 

separated was capable of performance within one year. "The 

Statute of Frauds applies only to contracts which by their terms 

cannot be performed within the year. It does not apply to 

contracts which may be performed within, although they may also 
12

extend beyond, that period" (quotation omitted). Boothby v. 

Texon, Inc., 414 Mass. 468, 479 (1993).5

Nor was the motion judge's implicit determination that the 

plaintiff had no adequate remedy at law a "clear error of law or 

abuse of discretion." Aspinall, 442 Mass. at 390. No doubt, 

specific performance of contracts relating to personal property 

is the exception rather than the rule, because a damages remedy 

usually suffices. "The reason is, that, in regard to most 

articles of personal property, the commodity and its market 

value are supposed to be substantially equivalent, each to the 

other, so that they may be readily interchanged." Jones v. 

Newhall, 115 Mass. 244, 248 (1874). The party left without 

possession obtains damages and, "with his money, may obtain 

similar goods . . . presumably at the market price." Id. 

However, "[i]f the character of the property be such that the 

loss of the contract will not be fairly compensated in damages 

based upon an estimate of its market value, relief may be had in 

equity, whether it relates to real or to personal estate." Id. 

at 248–249.

5 In Boothby, the Statute of Frauds was inapplicable because 

the plaintiff's contract for permanent employment "could have 

been performed within one year: [the plaintiff] could have died 

or Texon could have discontinued its business, at which point 

its obligation to employ [the plaintiff] would end." 414 Mass.

at 479.
13

We have previously recognized that, although a domestic 

animal is property, its market value does not always fairly 

measure its value to its owner. See Irwin, 85 Mass. App. Ct. at 

235, 237-238. In Irwin, we held that the measure of damages for 

injury to a domestic animal may include, in addition to its 

"market value or replacement cost," those reasonable veterinary 

expenses reasonably incurred in treating the animal. Id. at 

238, citing Atwood v. Boston Forwarding & Transfer Co., 185 

Mass. 557, 558–559 (1904). The factors relevant to the 

reasonableness of such expenses include the animal's "age and 

special traits or skills," "whether it was maintained as part of 

the owner's household," and "the owner's affection for the 

animal." Id. at 239. Implicit in these factors is the 

recognition that a domestic animal's value to its owner, and 

thus the amount of expenses for veterinary care that the law 

views as reasonable, may increase based on the animal's special 

role in the owner's household,6 although "the owner cannot 

recover for his or her own hurt feelings, emotions, or pain" or 

"for the loss of the animal's companionship or society." Id., 

6 The Legislature, too, has recognized the special place 

that domestic animals may occupy in a household. Under G. L. 

c. 209A, § 11 (a), a court issuing an abuse prevention order 

under G. L. c. 209A, a harassment prevention order under G. L. 

c. 258E, or similar orders under other statutes "may order the 

possession, care and control of any domesticated animal owned, 

possessed, leased, kept or held by either party or a minor child 

residing in the household to the plaintiff or petitioner."
14

citing Krasnecky v. Meffen, 56 Mass. App. Ct. 418, 423 (2002). 

But Irwin, supra, (a strict liability action) and Krasnecky,

supra, (a tort action) involved duties imposed by law, whereas 

here we deal with a claim for breach of a duty voluntarily 

assumed by parties to a contract, the very object of which was

to obtain an animal's companionship. 

"In determining whether the remedy in damages would be 

adequate," one significant factor is "the difficulty of proving 

damages with reasonable certainty." Restatement (Second) of 

Contracts § 360 (1981). "Some types of interests are by their 

very nature incapable of being valued in money. Typical 

examples include heirlooms, family treasures and works of art 

that induce a strong sentimental attachment." Id. at comment b. 

"Contracts may be specifically enforceable because they involve 

a grandfather's clock, even though it will not run, a baby's 

worn-out shoe, or faithful old Dobbin the faithful horse whose 

exchange value in the market is less than nothing." Restatement 

(First) of Contracts § 361 comment e (1932). See Sanford v. 

Boston Edison Co., 316 Mass. 631, 635 & n.1 (1944), S.C. 319 

Mass. 55 (1946) (collecting cases illustrating Supreme Judicial 

Court's "broadening tendency in applying the remedy of specific 

performance").

Under these principles, the motion judge reasonably could 

have concluded, at least as a preliminary matter, that a damages 
15

remedy for the defendant's breach of her agreement to equally 

share Teddy Bear would be inadequate to compensate the plaintiff 

for the loss of his equal possession. Whether that possession 

is described as involving the companionship of Teddy Bear (the

term "use" being better suited to inanimate objects), or instead 

his "shared custody" (a phrase that understandably concerned the 

single justice and might better be avoided when discussing 

animals), does not seem dispositive. Although the motion judge 

used the phrase "shared custody," nothing in her order treated 

Teddy Bear as a child. Nor should anything in our decision be 

construed as altering the status of pets in divorce proceedings.

The judge's order is supported by settled principles of property 

and contract law, even if there is little precedent for 

combining them to apply to a pet dog.7

3. Balance of harms. Although the motion judge did not 

expressly discuss the balance of harms, focusing instead on the 

viability of the plaintiff's contract claim, the judge 

reasonably could have concluded that the irreparable harm to the 

plaintiff, considered in light of his likelihood of success on 

the merits, outweighed the harm to the defendant. The 

7 But see Houseman v. Dare, 405 N.J. Super. 538, 542-543

(App. Div. 2009) (specific performance available to enforce 

plaintiff's agreement entered into with former boyfriend after 

relationship ended, that plaintiff would own and possess dog 

they had jointly purchased and owned while engaged).
16

plaintiff's verified complaint and affidavit stated, among other 

things, that he was "losing the value of his investment of time, 

money, [and] emotional support of Teddy [Bear] each day that 

[his] exercise of ownership and possessory rights to Teddy Bear 

is wrongfully denied." It was a reasonable inference from the 

other facts asserted by the plaintiff that he had an "owner's 

affection for the animal," which "may be considered" in 

determining what relief is appropriate. Irwin, 85 Mass. App. 

Ct. at 239. The plaintiff sought not to deprive the defendant 

altogether of her possessory rights but only to possess the dog 

on an equal basis with her. Despite the defendant's unsworn 

assertion that Teddy Bear was her registered emotional support 

animal, she offered no evidence that ordering her to share 

possession of Teddy Bear equally during the pendency of the 

action would cause her more harm than it would avoid for the 

plaintiff.

4. Public interest. Because this case does not involve a 

request for a preliminary injunction by or against the 

government, the public interest in its usual sense is not a 

significant factor. Cf. Tri-Nel Mgt., Inc., 433 Mass. at 219; 

Commonwealth v. Mass. CRINC, 392 Mass. 79, 89 (1984). 

Nevertheless, one additional factor affecting the propriety of 

specific performance deserves mention: the burden that ongoing 

enforcement of pet-sharing agreements might place on our courts. 
17

It is not difficult to foresee that disputes between joint pet 

owners, particularly those whose relationships have ended, could 

become acrimonious and require the commitment of substantial 

judicial resources over a protracted period of time. It might 

well be questioned whether the courts should allow themselves to 

be drawn into such matters.

This potential drawback of the remedy of specific 

performance is nothing new. Nearly a century ago the Supreme 

Judicial Court recognized that "[s]pecific enforcement will not 

be decreed if the performance is of such a character as to make 

effective enforcement unreasonably difficult or to require such 

long-continued supervision by the court as is disproportionate 

to the advantages to be gained from such a decree and to the 

harm to be suffered in case it is denied." McCormick v. 

Proprietors of the Cemetery of Mt. Auburn, 285 Mass. 548, 551 

(1934), quoting Restatement (First) of Contracts § 371 (1932).8

See Sanford, 316 Mass. at 634 (availability of specific 

performance remedy depends in part on whether it will involve 

substantial practical difficulties).

8 This principle has been carried forward in the Restatement 

(Second) of Contracts. "A promise will not be specifically 

enforced if the character and magnitude of the performance would 

impose on the court burdens in enforcement or supervision that 

are disproportionate to the advantages to be gained from 

enforcement and to the harm to be suffered from its denial." 

Restatement (Second) of Contracts § 366 (1981). 
18

For somewhat similar reasons, the courts of other States, 

when confronted with pet disputes in the divorce context, have 

traditionally resisted ordering shared custody of or visitation 

with jointly owned pets and instead have treated pets as 

personal property that must be awarded to one spouse or another. 

See 2 B.R. Turner, Equitable Distribution of Property § 6:109

(4th ed. 2024), and cases cited. See also Annot., Divorce and 

Separation: Custody Disputes Concerning Pets, 104 A.L.R. 6th 

181 (2015). "Determinations as to [pet] custody and visitation 

lead to continuing enforcement and supervision problems . . . . 

Our courts are overwhelmed with the supervision of custody, 

visitation, and support matters related to the protection of our 

children. We cannot undertake the same responsibility as to 

animals." Bennett v. Bennett, 655 So. 2d 109, 110–111 (Fla. 

Dist. Ct. App. 1995). "The extension of an award of possession 

of a dog to include visitation or joint custody -- components of 

child custody designed to keep both parents firmly involved in 

the child's life -- would only serve as an invitation for 

endless post-divorce litigation, keeping the parties needlessly 

tied to one another and to the court." Travis v. Murray, 42 

Misc. 3d 447, 460 (N.Y. Sup. Ct. 2013).9

9 The Travis court adopted a "best for all concerned" 

standard for deciding which divorcing spouse should be awarded 

ownership of the parties' pet. Travis, 42 Misc. 3d at 460. The 
19

In this case, however, the judge was asked not to determine

whether the parties should share possession of Teddy Bear, but 

merely to enforce, on a preliminary basis, the parties' own preexisting agreement for shared possession. Although the 

potential for acrimony and disputes over minor details of shared 

possession remains, the most difficult decision, according to 

the plaintiff's as yet unrebutted evidence, had already been 

made by the parties themselves and carried out over a period of 

some months. We cannot say that the judge abused her discretion 

in ordering specific performance here. But it is within the 

judge's discretion to revisit that decision if further 

proceedings or the parties' actions suggest that the burdens of 

such enforcement on the court are disproportionate to the 

benefits. See Lawless v. Melone, 350 Mass. 440, 443 (1966) 

(specific performance of joint venture should not be ordered 

where history of litigation presaged unsatisfactory and 

unworkable arrangement); Westinghouse Broadcasting Co. v. New 

England Patriots Football Club, Inc., 10 Mass. App. Ct. 70, 74-

Travis case has been characterized as reflecting "a degree of 

movement away from the traditional position that pets are no 

different from other forms of property." 2 B.R. Turner, 

Equitable Distribution of Property § 6:109 (4th ed. 2024). Under 

a statute taking effect in 2021, New York matrimonial courts, 

"in awarding the possession of a companion animal," were 

required to "consider the best interest of such animal." N.Y. 

Dom. Rel. Law § 236(B)(5)(d)(15). See L.B. v. C.C.B., 77 Misc.

3d 429, 435-436 (N.Y. Sup. Ct. 2022).
20

75 (1980) (agreeing with judge's "reluctance to order the 

plaintiff and defendant into an uneasy harness" [quotation 

omitted]).

Specific performance in these circumstances is a matter of 

discretion. Where specific performance is unwarranted or 

infeasible, other remedies remain, including a damages remedy 

(albeit not fully adequate) for breach of the agreement, and 

even an equitable remedy in the nature of partition to free the 

parties of the burdens of continued joint ownership. See 

G. L. c. 214, § 3(3) (granting Supreme Judicial and Superior 

Courts jurisdiction of "[a]ctions between joint owners of 

personal property . . . to order a division or sale thereof and 

make and order a proper distribution of the proceeds"). See 

also Tucci, 358 Mass. at 497 (partition proceeding available if 

tenants in common could not agree on use of property).

Conclusion. The order of the single justice vacating the 

preliminary injunction is reversed, and a new order shall enter 

denying the defendant's petition for relief from the preliminary 

injunction.10

So ordered. 

10 The defendant's request for costs and attorney's fees is 

denied.