GELFGATT v. US BANK NATIONAL ASSOCIATION (2021)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff appeals from the denial of his motion, under Mass. R. Civ. P. 60 (b), 365 Mass. 828 (1974), for relief from a judgment entered against him more than six years earlier. We discern no error of law or abuse of discretion by the motion judge, and affirm the order.

As a threshold matter, we note that the basis for the plaintiff's motion was a claim of fraud. Such a motion falls within the ambit of Mass. R. Civ. P. 60 (b) (3), to which a one-year limitations period applies. Relief is unavailable under rule 60 (b) (6) (which has a longer limitations period) based on a claim falling under rule 60 (b) (1)-(5). See Owens v. Mukendi, 64 Mass. App. Ct. 820, 823 (2005).

In any event, as the motion judge observed, the plaintiff did not support his motion with “any credible evidence that there are any extraordinary circumstances here suggesting that the judgment of dismissal be vacated.”

Defendant US Bank, National Association (US Bank) has requested an award of attorney's fees incurred on appeal. We agree that such an award is appropriate. US Bank shall within fifteen days following the date of this decision file with this court and serve on the plaintiff a motion for determination of the amount of its attorney's fees incurred on appeal, supported by an affidavit detailing such fees, in accordance with the procedure described in Fabre v. Walton, 441 Mass. 9, 10-11 (2004). The plaintiff may, within fifteen days thereafter, file with this court and serve on US Bank an opposition to the amount of fees so claimed.

Order denying motion for relief from judgment affirmed.