Opinion
No. 12–P–592.
2013-02-20
Daniel ALICEA v. Jessica COLLINS.
By the Court (COHEN, GREEN & VUONO, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
As a result of a motor vehicle accident on February 11, 2006, in which the plaintiff's car collided with the defendant's car, the plaintiff filed suit in the Boston Municipal Court. Following a bench trial, the judge issued findings of fact and rulings of law, finding, in part, that the collision was caused by the plaintiff entering the intersection in front of the defendant's oncoming vehicle, and concluding that the plaintiff was more than fifty-one percent negligent. From the judgment dismissing his complaint, the plaintiff appealed to the Appellate Division, which dismissed his appeal. He now appeals from the decision and order of the Appellate Division.
The only appeal that is “before us is from the ‘final decision of the appellate division,’ G.L.c. 231, § 109, ... and is on the record before that court.” Worldwide Commodities, Inc. v. J. Amicone Co., 36 Mass.App.Ct. 304, 307 (1994). Although the plaintiff appealed from the disposition by the Appellate Division, he failed to include the decision and order in the record appendix and to argue why it is erroneous, making any review of that decision and order impossible. See Cameron v. Carelli, 39 Mass.App.Ct. 81, 83–86 (1995). See also Kelsey v. Hampton Ct. Hotel Co., 327 Mass. 150, 152 (1951); Brossi v. Fisher, 51 Mass.App.Ct. 543, 550 (2001). In any event, were we to reach the argument pressed by the plaintiff on appeal concerning the sufficiency of the evidence, we would conclude that the evidence was sufficient to support the trial judge's decision; the judge was not required to credit the plaintiff's testimony concerning how the accident occurred and, viewed in the light most favorable to the defendant, the evidence supports the inference drawn by the trial judge that the plaintiff's vehicle was the object observed by the defendant to the right and in front of her shortly before the collision. See Gaw v. Sappett, 62 Mass.App.Ct. 405, 409 (2004). See also Yankee Microwave, Inc. v. Petricca Communications Sys., Inc., 53 Mass.App.Ct. 497, 504 (2002).
The plaintiff's protest that the defendant did not testify that she saw the plaintiff's vehicle pull out of the side street is unavailing.
Decision and order of Appellate Division affirmed.