Poskus v. Lombardo's of Randolph

9 Citing cases

  1. Kaplan v. Thomas

    No. 22-P-570 (Mass. App. Ct. Jun. 25, 2024)

    The failure to present at trial available evidence, or evidence that could have been obtained by reasonable diligence, is not a ground to vacate a judgment. See Cahaly v. Benistar Prop. Exch. Trust Co., 451 Mass. 343, 361, 366-368 (2008); Poskus v. Lombardo's of Randolph, Inc., 48 Mass.App.Ct. 527, 528 (2000), and cases cited.

  2. BLB Trading, LLC v. Boguslav

    No. 22-P-294 (Mass. App. Ct. Oct. 6, 2023)

    For present purposes we need not decide under which part of rule 60 (b)'s several subsections the Boguslavs' motion was brought as the judge concluded that the motion was not brought within a "reasonable time." See Poskus v. Lombardo's of Randolph, Inc., 48 Mass.App.Ct. 527, 527-528 (2000) (motion for relief from judgment based on newly discovered evidence must be brought within one year of judgment and time may not be extended by recharacterizing motion as being under subsection [b] [6]). In so concluding the motion judge carefully considered "the reasons for [the Boguslavs'] delay; the ability of [the Boguslavs] to learn of the grounds earlier; prejudice to the parties, if any; and the important interest of finality."

  3. Brown v. Entin

    100 Mass. App. Ct. 1125 (Mass. App. Ct. 2022)

    As the judge ruled, Jeffrey Entin's affidavit relaying his telephone conversation with the former owner did not amount to newly discovered evidence under Mass. R. Civ. P. 60 (b) (2), because the Entins could have found the former owner before trial "by the exercise of reasonable diligence." Poskus v. Lombardo's of Randolph, Inc., 48 Mass. App. Ct. 527, 528 (2000). See Gaw v. Sappett, 62 Mass. App. Ct. 405, 408 (2004).

  4. Brown v. Entin

    No. 21-P-70 (Mass. App. Ct. Feb. 23, 2022)

    As the judge ruled, Jeffrey Entin's affidavit relaying his telephone conversation with the former owner did not amount to newly discovered evidence under Mass. R. Civ. P. 60 (b) (2), because the Entins could have found the former owner before trial "by the exercise of reasonable diligence." Poskusv.Lombardo's of Randolph, Inc., 48 Mass.App.Ct. 527, 528 (2000). See Gawv.Sappett, 62 Mass.App.Ct. 405, 408 (2004).

  5. Fed. Home Loan Mortg. Corp. v. Evans

    99 Mass. App. Ct. 1129 (Mass. App. Ct. 2021)

    However, under the rule, "a motion for relief from judgment based on newly discovered evidence must be made within one year of final judgment." Poskus v. Lombardo's of Randolph, Inc., 48 Mass. App. Ct. 527, 527 (2000). Here, Evan's motion to reopen was filed with the single justice more than three years after the single justice had taken final action on her request for review of the Housing Court's use and occupancy order and had made clear that "[t]his matter is now closed in this court."

  6. Greenleaf Fin. Servs., Inc. v. Laplante

    83 Mass. App. Ct. 1127 (Mass. App. Ct. 2013)

    This case was filed in 1994 and relates to events occurring in 1993.” See Poskus v. Lombardo's of Randolph, Inc., 48 Mass.App.Ct. 527, 528 (2000). The other arguments raised in Laplante's rule 60 motion were arguments more proper for appeal.

  7. Breslouf v. Brow

    982 N.E.2d 1225 (Mass. App. Ct. 2013)

    New evidence generally is understood to mean evidence that the offering party could not have discovered by the exercise of reasonable diligence before the entry of final judgment. Poskus v. Lombardo's of Randolph, Inc., 48 Mass.App.Ct. 527, 528 (2000). Here, many of the claims the defendant raised in the motion for reconsideration related to evidence that was introduced at trial and evaluated by the judge.

  8. Gaw v. Sappett

    62 Mass. App. Ct. 405 (Mass. App. Ct. 2004)   Cited 35 times
    Discerning no error in denial of wife's rule 60 [b] motion where judge found "the wife's evidence did not clearly and convincingly demonstrate the kind of calculated, fraudulent conduct that warrants relief under rule 60 [b]," and there was no indication "that the [husband's] nondisclosure was the product of ... a deliberate plan to defraud the wife or the court"

    The evidence, being thus available, could have been explored by the wife (at all times represented by counsel) prior to the judgment in the exercise of reasonable diligence. See DeLuca v. Boston Elev. Ry., 312 Mass. 495, 497 (1942); Poskus v. Lombardo's of Randolph, Inc., 48 Mass. App. Ct. 527, 528-529 (2000). Cf. Knott v. Racicot, 442 Mass. 314, 325 (2004).

  9. Cahaly v. Benistar Prop. Exch., No

    No. 010116BLS2 (Mass. Cmmw. Aug. 30, 2004)

    The plaintiffs' motion to reinstate was filed on February 24, 2004, (just) within the year limit that governs motions for relief under Mass.R.Civ.P. 60(b)(2). Compare Poskus v. Lombardo's of Randolph, Inc., 48 Mass.App.Ct. 527, 527-28 (2000). Although Merrill Lynch complains that the affidavit of David Patterson, one of the sources of "new" evidence on which the plaintiffs rely to support their motion, was not filed until March 12, 2004, more than one year from the date of the judgment NOV, and should not be considered.