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.
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."
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).
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).
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."
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.
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.
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).
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.