17 Mass. App. Ct. 362 | Mass. App. Ct. | 1984
In this civil action for dental malpractice, the docket discloses that the plaintiff received an adverse report from the tribunal convened pursuant to G. L. c. 231, § 60B, and timely filed a bond in the amount of $2,000 on August 28, 1978. The defendant, on May 10, 1978, had filed interrogatories along with its answer. As no answers to those interrogatories were filed, on November 21, 1978, the defendant filed an application for dismissal under Mass.R.Civ.P. 33(a), as amended, 368 Mass. 906 (1976). The record further discloses that a notice of that application was sent to the plaintiff, which notice stated in part that judgment of dismissal would be entered unless answers were filed within thirty days. No response was received from the plaintiff,
The question here is whether the plaintiff s motion was one which could have been brought under Mass.R.Civ.P. 60(b) (6), 365 Mass. 828 (1974), which has no fixed period of time within which a motion must be brought, or whether the motion should have been brought under Mass.R.Civ.P. 60(b)(1), and be subject to its time limitation of filing within one year after the entry of judgment. Rule 60(b) (6) may not “be used as an alternative vehicle to raise issues which should have been timely raised under rule 60(b) (2) or (3).” Artco, Inc. v. DiFruscia, 5 Mass. App. Ct. 513, 517 (1977). This is also true for a matter which should have been timely raised under rule 60(b)(1). Murphy v. Administrator of the Div. of Personnel Adm., 377 Mass. 217, 228 n.13 (1979). The plaintiff points out in his affidavit and in his brief that the event which brought about the plaintiff s problem was the misfiling of the signed answers to interrogatories. This could only have happened because of mistake, inadvertence, or negligence. Relief from judgment in such a case may only be had under rule 60(b)(1), and a court is without power to afford relief unless a motion is brought within a year of its entry.
We are of opinion that the only appropriate subdivision of rule 60(b) under which plaintiff could have been allowed relief from judgment was subdivision (1) and as more than a year had passed from the entry of judgment to the filing of the motion, the court was without power to entertain it.
The order allowing the motion to vacate judgment of dismissal dated May 3, 1983, is vacated, and a new order of “motion denied” is to be entered. In keeping with his order referred to above, the judge denied the defendant’s motion for assessment of costs in the amount of $2,000 and that the clerk (of court) deliver to the defendant the plaintiff’s check for that amount which had been deposited pursuant to the
So ordered.