
    PYRAMID COMPANY OF HOLYOKE vs. OAKWOOD FARMS OF ROCHESTER, INC. & another
    
    No. 317
    District Court Department Appellate Division, Western District Trial Court of the Commonwealth of Massachusetts
    February 22, 1982
    Cornelius J. Moriarty, Esquire, counsel for plaintiff.
    Charles P. LaveJIe, Esquire, counsel for defendant.
    
      
       Edward Latif
    
   DECISION AND ORDER

This cause came on to and was heard in the Appellate Division for the Western District sitting at Springfield upon Report from the Holyoke Division, and no error having been found,

It is hereby

ORDERED: That the Clerk of the Holyoke Division make the following entry in said case on the docket of said Court, namely: Report dismissed.

William T. Walsh, Justice

Francis J. Larkin, Justice

Allan McGuane, Justice

Opinion filed herewith.

Robert E. Fein, Clerk

OPINION

Walsh, P.J.

This is an appeal from the denial of a motion for relief from judgment under Dist./Mun. Cts. R. Civ. P. 60(b)(1) or (6). Rule 60(b)(1) allows relief for “mistake, inadvertence, surprise or excusable neglect” and (6) for “any other reason justifying relief from the. operation of the judgment.”

The original complaint alleged that the defendants failed to make payments on a lease dated June 21, 1979. The premises were in a shopping mall in Holyoke, Massachusetts. The complaint was filed on May 2, 1980 and an ex parte attachment was allowed the same day.

The defendants did not file an answer but an attorney did file a motion to remove the attachment. This motion was never heard, but the attachment was removed after negotiations between representatives of the plaintiff and defendants without counsel. The attorney filed no other pleadings.

On December 1, .1980 plaintiff applied for a judgment by default under Dist./Mun. Cts. R. Civ. P. Rule 55(b)(2) and a hearing was scheduled for December 10, 1980. At the request of the same attorney who filed the motion to remove attachment the hearing was continued to December 17, 1980 in order, as stated in the report, “to allow defendant and his counsel time to prepare.”

On December 17, 1980, the individual defendant (Latif) appeared at the hearing and filed a motion to continue along with an affidavit that he .needed additional time to retain counsel for said action. The judge denied the motion for continuance and a hearing was held. At the hearing the defendant was given the opportunity to cross-examine the plaintiff’s witness and to make a full presentation of his defense.

After judgment was entered for the plaintiff, Latif filed the motion for relief from judgment as indicated.

Defendant ’ also filed an affidavit in support of his motion. He alleged he was not aware of the action until June 1980. The docket shows that an attorney, on May 9, Í980, filed a motion to remove the attachment that had previously been allowed.

He further stated that he decided not to accept said attorney’s counsel and negotiated the release of the attachment himself. Also, that he engaged in negotiations with representatives of the plaintiff relating to the terms of the lease which is the subject matter of the action. Although he also claimed that he wanted more time to retain a lawyer, the report shows that an attorney arranged for a continuance from an earlier scheduled date to the actual hearing date, allegedly for the purpose of preparation. The judge may have believed, as argued by plaintiff, that Latif’s actions were merely to delay the payment of rent due under the lease and may not have believed the testimony in support of the motion. Alaimo v. Fredette, 4 Mass. App. Ct. 866 (1976).

A motion under Rule 60 is addressed to the trial judge’s judicial discretion, and is generally not reviewable except for a clear pbuse of discretion. Schulz v. Black, 369 Mass. 958, (1975). Trustees of the Stigmatine Fathers, Inc. v. Secretary of Adm’n & Fin., 369 Mass. 562, 565 (1976).

In upholding the allowance of a motion for relief from judgment under Pist./Mun. Cts. R. Civ. P. Rule 60(b)(1), . the Appeals Court in Berube v. McKesson Wine & Spirits Co., 7 Mass. App. Ct. 426, 430 (1979) held that one of the factors to be considered on granting relief should be '‘whether there is a showing either by way. pf affidavit, or otherwise apparent on the record, that the claim sought to be reviewed has merit.” The record in the tase before us does not meet that test.

Although in the Berube decision the . Appeals Court- found no abuse of discretion in the allowance of the motion, ft went on to say that, had the judge refused to allow the motion, it would also have found. no abuse of discretion. 7 Mass. App. Ct. at 435.

I There is no sho\ving of an abuse of discretion in this case and we dismiss defendant’s report.

William T. Walsh, P.J.

Francis I. Larkin, I.

Allan McGuahe, I.

This certifies that this is the OPINION . of the Appellate Division in this cause.

Robert E. Fein, Clerk 
      
       The report states that a hearing was held on thq merits but the docket reveals the default was never removed. It would appear that a hearing on damages was held at which the plaintiff and individual defendant presented evidence.
     
      
       Defendant, Latif, also, had attached to his brief what purported to be a transcript made from the tape of the hearing of December 17, 1980. The plaintiff’s witness broke down the various charges called for under the lease. Latif never denied the signing of the lease but attempted to show that the charges made were out of line when compared to his other five stores in Massachusetts and Connecticut.
     