GARIMA DOSI & Another v. DMITRY DEYCH & Others. ( 2023 )

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
22-P-1107
GARIMA DOSI & another 1
vs.
DMITRY DEYCH & others. 2
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendants appeal from the denial of their motion,
under Mass. R. Civ. P. 60 (b), 365 Mass. 828 (1974), for relief
from a judgment entered in the Superior Court following an
assessment of damages hearing on a default judgment, which
entered after the defendants failed to answer the plaintiffs'
complaint. The defendants contend that the motion judge erred
in denying their requested relief, because the plaintiffs failed
to give proper notice of their request for entry of a default
judgment, or of the hearing on the assessment of damages. We
discern no error of law or abuse of discretion and affirm the
order.
1 Harihar Sivanandh.
2 Dmitry Shangin; Diamond Builders, Inc.; DBCMS Corp.; and Ace
Air Heating & Cooling, Inc., which is not a party to this
appeal.
"The decision whether to grant relief from judgment under
rule 60 (b) rests within the sound discretion of the trial
judge. See Atlanticare Med. Ctr. v. Division of Med.
Assistance, 485 Mass. 233, 247 (2020). 'Accordingly, the denial
of a motion under Rule 60 (b) will be set aside only on a clear
showing of an abuse of discretion' (quotation and citation
omitted). Id. In effect, this means that the decision will be
affirmed unless the judge below 'made a clear error of judgment
in weighing the factors relevant to the decision . . . such that
the decision falls outside the range of reasonable alternatives'
(citation omitted). Dacey v. Burgess, 491 Mass. 311, 317
(2023)." Judge Rotenberg Educ. Ctr., Inc. v. Commissioner of
the Dep't of Developmental Servs., 492 Mass. 772, 785 (2023).
The defendants' challenge to the propriety of the notice of
the request for entry of judgment, and of the hearing on the
assessment of damages, centers on their claim that the
plaintiffs directed those notices to incorrect addresses. 3
However, the notices were sent to the addresses for each of the
defendants specified in paragraphs five, seven, eight and ten of
3 Massachusetts R. Civ. P. 55 (b) (2), as amended, 463 Mass. 1401(2012), requires notice of any request for entry of a default
judgment to "include a statement setting forth the nature and
type of all damages requested and the amount of any damages that
are a sum certain or a sum which can by computation be made
certain," and to "be sent at least fourteen days prior to the
date of hearing by first-class mail to the last known address or
by other means approved by the court."
2
the plaintiffs' complaint. By virtue of the defendants' failure
to answer the complaint, and the entry of default, the
plaintiffs' allegations concerning those addresses are "deemed
to be admitted," Nancy P. v. D'Amato, 401 Mass. 516, 519 (1988),
and "are accepted as true." Christakis v. Jeanne D'Arc Credit
Union, 471 Mass. 365, 372, cert. denied, 577 U.S. 923 (2015).
The same addresses were entered on the docket of the Superior
Court as the defendants' record addresses. The defendants were
served with the complaint in hand, and raise no challenge to the
effectiveness of service of the complaint. Instead, they seek
to avoid the effect of their admission of the addresses set
forth in the complaint, for purposes of notices of subsequent
proceedings.
The defendants assert that they in fact did not receive the
notices of the request for entry of judgment, and of the hearing
on damages, and point to their "uncontradicted affidavits
stating that they did not receive [p]laintiffs' notices." 4
4 The motion judge was of course not required to credit the
defendants' affidavits. We note that, at the hearing on the
defendants' rule 60 (b) motion, counsel for the defendants
included in her criticism of the sufficiency of notice the
observation that "one of the defendants was noticed at the
address of the other defendant where he resides with his wife
and family; and the defendant who was served there has no
connection to that property." While that discrepancy could
stand as valid criticism of the form of the notice, the fact
that one codefendant received notice -- albeit directed to his
partner -- stands in tension with the defendants' protests that
they were completely unaware of the proceeding. And at least
3
However, Mass. R. Civ. P. 55 (b) (2), as amended, 463 Mass. 1401(2012), does not require proof of receipt, and again based on
the defendants' deemed admission of the addresses stated in the
complaint, the plaintiffs' notices complied with the
requirements of the rule. We are left to consider whether the
motion judge abused his discretion in declining to allow the
defendants relief from the consequences of their failure to
respond in any manner to the complaint. Based on the totality
of the circumstances, including the information presented to the
judge at the motion hearing, see note 4, supra, we discern no
such abuse. Nor have the defendants made a showing of
"excusable neglect" to justify relief. Mass. R. Civ. P. 60 (b)
(1).
We likewise discern no merit in the defendants' challenge
to the sufficiency of the plaintiffs' proffer in support of
their request for damages. The plaintiffs' verified complaint
described in considerable detail the various components
comprising their claim for damages, and the package submitted
with the plaintiffs' request for an assessment of damages laid
out the amounts in form sufficient to support "a sum certain or
one copy of the notice was delivered and accepted at DBCMS's
offices at 12 Post Office Square, which the defendants concede
was its last known address, and which the plaintiffs' counsel
represented at the motion hearing to be an address still used by
the defendants in their business.
4
a sum which can by computation be made certain." Mass. R. Civ.
P. 55 (b) (2).
The plaintiffs have requested an award of double costs and
attorney's fees incurred for this appeal, based on their
contention that the defendants' appeal is frivolous. In the
exercise of our discretion, we deny the plaintiffs' request.
Order denying motion for
relief from judgment
affirmed.
By the Court (Green, C.J.,
Milkey & Grant, JJ. 5),
Clerk
Entered: October 23, 2023.
5 The panelists are listed in order of seniority.
5