Opinion
19-P-333
02-07-2020
Eric PORTER v. ZONING BOARD OF APPEAL OF BOSTON & others.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff, Eric Porter, sought to challenge zoning relief granted by the zoning board of appeal of Boston (board) to 30 Gibson, LLC. A judge of the Superior Court dismissed his complaint as untimely. The plaintiff moved under Rule 60 (b) (6) of the Massachusetts Rules of Civil Procedure to vacate the judgment. See Mass. R. Civ. P. 60 (b), 365 Mass. 828 (1974). This motion was denied. The plaintiff appeals from the order denying his motion. We affirm.
Background. The board filed its decision with the building commissioner on December 15, 2017, the trigger for commencing the twenty-day appeal period. The parties agree that the last day of the appeal period was Thursday, January 4, 2018. The plaintiff filed his complaint on Monday, January 8, 2018. Subsequently, the judge dismissed the plaintiff's complaint as untimely, noting, erroneously, that the deadline to appeal was January 2, 2018. Judgment entered on May 29, 2018.
The plaintiff did not appeal from the judgment of dismissal, or promptly move for reconsideration. Instead, fifty days later, on July 18, 2018, he filed and served a motion to vacate the judgment under rule 60 (b). The plaintiff argued that although the operative last day for filing the complaint was January 4, 2018, the "[p]laintiff gave notice and explanation to the Court on May 22nd, 2018 why [the] appeal was filed on January 8th[,] because the 4th, 5th, 6th, and 7th were not possible [due to severe inclement weather]." The judge, after assuming the deadline to file the complaint was indeed January 4, 2018, denied the motion to vacate. The judge found that the court was open on January 5, 2018. The judge also denied the plaintiff's motion to reconsider.
Discussion. Relief under rule 60 (b) (6) is appropriate only in "extraordinary circumstances." Sahin v. Sahin, 435 Mass. 396, 406 (2001). See Ulin v. Polansky, 83 Mass. App. Ct. 303, 308 (2013). We review the denial of a motion pursuant to rule 60 (b) for an abuse of discretion. Owens v. Mukendi, 64 Mass. App. Ct. 820, 826 (2005).
The plaintiff also argues that Mass. R. Civ. P. 60 (a) applies because the motion judge's original order stated the wrong deadline. This argument is without merit because, if for no other reason, in ruling on the motion to vacate, the judge assumed the correct deadline of January 4, 2018.
The plaintiff asserts that the court was not open on January 5, 2018, by equating a parking ban to a court closure. He offered no documentation to persuade the judge that he was unable to timely file his complaint. Moreover, the plaintiff has failed to demonstrate that his rule 60 (b) motion was filed "within a reasonable period of time." Gottsegen v. Gottsegen, 397 Mass. 617, 628 (1986), quoting Mass. R. Dom. Rel. P. 60 (b). The time period for the plaintiff to appeal from the board's decision was twenty days. Here, he waited twenty-four days to file his complaint, and fifty days to file his motion to vacate. We discern no abuse of discretion.
The plaintiff's remaining contentions do not rise to the level of appellate argument, and we do not address them. See Zora v. State Ethics Comm'n, 415 Mass. 640, 642 n.3 (1993). In any event, "our review of the record shows that none of [the remaining contentions have] merit." Id.
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Order denying motion to vacate judgment affirmed.