NOTICE: All slip opinions and orders are subject to formal 

revision and are superseded by the advance sheets and bound 

volumes of the Official Reports. If you find a typographical 

error or other formal error, please notify the Reporter of 

Decisions, Supreme Judicial Court, John Adams Courthouse, 1 

Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-

1030; SJCReporter@sjc.state.ma.us

SJC-12554

BAHIG BISHAY & another1 vs. MERRILL LYNCH CREDIT CORPORATION.2,3

October 17, 2018.

Supreme Judicial Court, Superintendence of inferior courts.

Bahig Bishay and Mary Costello (Bishays) appeal from a 

judgment of the county court denying their petition for relief 

under G. L. c. 211, § 3. As detailed more fully in Costello v. 

Appeals Court, 480 Mass. (2018), the Bishays were the 

defendants in a summary process action in the District Court

commenced by Merrill Lynch Credit Corporation, whose successor 

in interest is Bank of America, N.A. (bank). After a trial, the 

bank was awarded possession of the subject property. The 

judgment was affirmed, and we denied further appellate review. 

Merrill Lynch Credit Corp. v. Costello, 92 Mass. App. Ct. 1113 

(2017), S.C., 479 Mass. 1107 (2018). Shortly thereafter, an 

execution issued on the judgment for possession. The Bishays 

moved to vacate the execution. The motion was denied. The 

following day, the Bishays filed a motion in the Appellate 

Division of the District Court to stay or strike the execution, 

arguing that the motion to vacate was wrongly denied where the 

Bishays had filed a petition under G. L. c. 211, § 3, for relief 

from the judgment for possession (prior petition), and their 

appeal from the denial of that petition was still pending. The 

Appellate Division denied that motion. The Bishays then filed 

 

1 Mary Costello, also known as Mary Bishay.

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

3 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).
2

the instant G. L. c. 211, § 3, petition, along with an emergency 

motion to stay. A single justice of this court denied both the 

petition and the motion without a hearing.

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). Passing the question whether the 

rule applies here, it is clear that the Bishays had, and to some 

extent pursued, an avenue for relief in the ordinary appellate 

process. The Bishays offer no reason in their memorandum why 

they could not appeal to the Appellate Division, and if 

necessary to the Appeals Court, from the denial of their motion 

to vacate the execution; they only argue the merits of that 

motion. Moreover, to the extent they argue that the execution 

could not properly issue while their appeal from the denial of 

their prior petition was pending,4 that issue is now moot, as we 

have today affirmed that denial. Costello, supra. The Bishays 

have demonstrated no error of law or abuse of discretion in the 

denial of 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.

 

4 Although we need not address the merits of this 

contention, we note that, contrary to the Bishays' suggestion, a 

G. L. c. 211, § 3, petition challenging a decision of the trial 

court is not a "direct appeal" from that decision. A petition 

under G. L. c. 211, § 3, invokes the court’s extraordinary power 

of general superintendence. "'An action seeking relief under 

G. L. c. 211, § 3, is regarded as a new and separate civil 

action in the county court,' even if the petition challenges a 

ruling of the trial court." Singer v. Rosenkranz, 453 Mass. 

1012, 1013 n.4 (2009), quoting McMenimen v. Passatempo, 452 

Mass. 178, 191 (2008). Moreover, a G. L. c. 211, § 3, petition 

is not to be used in lieu of the ordinary appellate process and

does not "provide an additional layer of appellate review after 

the normal process has run its course." E.g., Votta v. Police 

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