Opinion
11-P-1092
12-19-2012
MICHAEL VENDITTO, JR. v. GABRIEL RIVERA.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
A judge of the Superior Court denied the defendant's motion to remove a default judgment. A second judge also denied the defendant's motions for relief from judgment. The defendant has appealed.
The underlying case concerns a lease entered into by the defendant as lessee and the plaintiff as lessor. The plaintiff filed an action in October, 2008, for breach of the lease. The defendant did not answer or appear, and a hefty default judgment (in the amount of $275,756.88 plus interest and costs) entered in April, 2009. In connection with attempts by the plaintiff to collect on the execution of the judgment, there was a sheriff's sale of real estate in Marblehead scheduled for 2011. It appears, as the plaintiff suggests, that it was around this point that the defendant began efforts to remove the default. It also appears that the defendant had counsel throughout the proceedings. As noted, supra, the first judge denied the motion to remove the default on April 11, 2011, indicating that the denial was for the reasons stated in the opposition and citing Winthrop Corp. v. Lowenthal, 29 Mass. App. Ct. 180, 188 (1990). It appears the judge felt that the relief requested by the defendant required 'compelling or extraordinary circumstances,' ibid., and that the defendant's situation fell short of that. Notice of the judge's decision to deny the motion to remove the default was entered after a hearing that occurred on April 6.
It is clear that whether to remove a default is within the sound discretion of the judge. Riley v. Davison Constr. Co., 381 Mass. 432, 441-442 (1980). For us to reverse such a decision requires a determination that the judge abused that discretion. Ibid. We have reviewed the record and discern no abuse in the denial of the motions to remove the default and to allow relief from judgment. From all that appears, the defendant had notice of the complaint and did nothing for some time.
Given our decision we need not reach the issue of the timeliness of the defendant's appeals.
As per the terms of the breached lease, attorney's fees and costs to the plaintiff are appropriate. As such, the plaintiff is to submit, within fourteen days of the date of the rescript, the specific amount requested, along with a breakdown of all fees and costs and supporting documentation. See Fabre v. Walton, 441 Mass. 9, 10-11 (2004). The defendant may then, within seven days thereafter, submit a response challenging the requested amounts. See ibid.
We deny the defendant's request for attorney's fees and costs.
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Orders denying motions to remove default and for relief from judgment affirmed.
By the Court (Kantrowitz, Berry & Grainger, JJ.),