Opinion
14-P-1857
12-02-2015
DYCK-O'NEAL, INC. v. RICHARD GLEICHER.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its 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 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).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
This suit was brought to enforce and collect upon an earlier default judgment entered against the defendant in Suffolk County Superior Court in 1996. Service of the complaint in that action was made in 1996 at an address in Jericho, New York, thought to be the defendant's "last and usual place of abode." Mass.R.Civ.P. 4(d)(1), as amended, 370 Mass. 918 (1976). It does not appear that the defendant challenged the adequacy of service until March of 2008, when he filed his answer in this suit. At that point, the defendant asserted an affirmative defense alleging inadequate service and also asserted counterclaims based on the alleged inadequacy of service. Eventually, the parties cross-moved for summary judgment. The motion judge allowed the plaintiff's motion, and denied the defendant's cross motion. This appeal followed, in which the defendant raises two arguments. First, he contends that he was entitled, as a matter of law, to summary judgment in his favor because service in the Suffolk County action was defective. Second, he argues that the plaintiff's motion should have been denied for the same reason.
The defendant argues that the judge erred in concluding that the defendant had not sufficiently raised a genuine issue of material fact regarding service. More specifically, he contends that the summary judgment record was sufficient to raise a disputed issue of fact as to his "last and usual place of abode" on the date of service.
As an initial matter, we observe that the defendant's record appendix as originally filed was grossly inadequate. In violation of Mass.R.A.P. 18(a), as amended, 425 Mass. 1602 (1997), the appendix did not include the docket sheet, the complaint, the first amended complaint, the answer, the motion for summary judgment, the cross motion for summary judgment, or the Rule 9A of the Rules of the Superior Court (2009) statement of undisputed facts. The panel raised the inadequacy of the appendix at oral argument. Subsequently, the defendant's counsel filed a motion seeking to file a "supplemental appendix" consisting of the docket sheet, the answer, and the first amended complaint. These documents were not submitted in appendix form; nonetheless the panel allowed the motion and we have considered those materials in our analysis and decision.
Even having been allowed this second opportunity to present an adequate record, the defendant has not provided the relevant summary judgment motions, or the Rule 9A(b)(5) statement of undisputed facts. The latter, which is required to contain both the undisputed and disputed facts (together with references to underlying source material to support the contention of dispute), is indispensable to review the defendant's argument that the judge erred in concluding that no genuine issue of fact had been raised. For this reason, we decline to examine or disturb the judge's determination that no genuine issue of fact was raised by the defendant's submissions. See, e.g., Shawmut Community Bank v. Zagami, 411 Mass. 807, 810-812 (1992); Kunen v. First Agricultural Natl. Bank, 6 Mass. App. Ct. 684, 687-691 (1978); O'Brien v. Municipal Ct. of Boston, 10 Mass. App. Ct. 851, 851 (1980); Chub v. Electric Ins. Co., 17 Mass. App. Ct. 61, 63 (1983); Cameron v. Carelli, 39 Mass. App. Ct. 81, 83-84 (1995).
We note, furthermore, that the defendant's affidavit does not squarely rebut the sheriff's assertion that service was made at the defendant's last and usual place of abode. The defendant does not explicitly aver that he did not live at the Jericho, New York, address on the date of service, nor does he state where he lived on that date. Especially when viewed in the context of the defendant's repeated evasiveness during his deposition, the omissions from the affidavit are glaring.
By contrast, because we have allowed the defendant's motion to supplement the appendix, there is now a sufficient record upon which to review his argument that the judge erred in concluding that the inadequacy of service was untimely raised. The complaint was filed in August of 2007. He was defaulted on October 3, 2007, after failing to appear. However, his motion to remove the default was allowed, and he obtained an extension of time in which to answer the complaint. As noted at the outset of this decision, he raised the issue of defective service in his answer, which was filed on March 26, 2008 -- five months after he had appeared in the litigation, and more than seven months after suit was filed. Although the facts necessary to establish defective service were wholly within the defendant's knowledge at all times (to wit, where he lived on the date of service), he did not seek to have the claims dismissed on that basis until two and one-half years later when, after discovery, he cross-moved for summary judgment and opposed the plaintiff's summary judgment motion in October of 2010.
"A defendant who challenges service of process in his answer must move to dismiss within a reasonable time, prior to substantially participating in discovery and litigating the merits of the case." Raposo v. Evans, 71 Mass. App. Ct. 379, 385 (2008). In Raposo, the defendant waited three years; here, the defendant waited two and one-half, a difference that is immaterial. Moreover, neither here nor below did the defendant offer any explanation for his delay. Considering that the facts necessary to present the motion were within the defendant's knowledge at all times, an unexplained delay of this magnitude was a sufficient basis for the judge's conclusion that the delay was unreasonable and the defense, accordingly, forfeited. See American Intl. Ins. Co. v. Robert Seuffer GMBH & Co. KG., 468 Mass. 109, 119 (2014) ("If a party alleges lack of personal jurisdiction in an answer and then fails timely to pursue the defense, a forfeiture of that defense may result").
Judgment affirmed.
By the Court (Cohen, Grainger & Wolohojian, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: December 2, 2015.