DocketNumber: No. 05-P-459
Citation Numbers: 66 Mass. App. Ct. 903, 844 N.E.2d 1122, 2006 Mass. App. LEXIS 381
Filed Date: 4/6/2006
Status: Precedential
Modified Date: 10/18/2024
The plaintiff was injured on June 5, 2001. On Monday, June 7, 2004, he filed a complaint alleging that his injuries were caused by the defendant’s negligence. The defendant moved to dismiss the complaint on the ground that
Under G. L. c. 4, § 9, “when the day or the last day for the performance of any act, including the making of any payment or tender of payment, authorized or required by statute or by contract, falls on Sunday or a legal holiday, the act may, unless it is specifically authorized or required to be performed on Sunday or on a legal holiday, be performed on the next succeeding business day.” Under G. L. c. 260, § 2A, as amended through St. 1973, c. Ill, § 1, “actions of tort, actions of contract to recover for personal injuries, and actions of replevin, shall be commenced only within three years next after the cause of action accrues.” By simple and direct application of the two statutes read together, when the last day for commencement of an action of tort falls on a Sunday or legal holiday, the action may be commenced on the next succeeding business day. That, in fact, was the conclusion of the United States Court of Appeals for the First Circuit, applying Massachusetts law, in Smith v. Pasqualetto, 246 F.2d 765, 768-769 (1st Cir. 1957). Adding G. L. c. 220, § 6, to the mix treats any Saturday on which court is closed as a legal holiday for such purposes, rendering the plaintiff’s complaint timely.
The defendant protests that the plaintiff’s failure to cite G. L. c. 220, § 6, in support of his cause until his second motion for reconsideration operated to waive his entitlement to its benefits. A similar claim was rejected in Smith v. Pasqualetto, supra at 767-768. Indeed, the present case furnishes less basis for waiver than in Smith, since the plaintiff here relied on the “Sunday Statute” (if inartfully) in opposing the defendant’s motion to dismiss.
The judgment dismissing the complaint is reversed, and the matter is remanded to the Superior Court for further proceedings.
So ordered.
By contrast, the plaintiff in Smith did not mention the Sunday Statute until his appeal. Smith v. Pasqualetto, 246 F.2d at 767-768.
The plaintiff’s request for an award of appellate attorney’s fees is denied.