MARIA HICKEY v. JOSHU OSMANSKI (2026)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, Maria Hickey, appeals from a Superior Court judge's October 30, 2025 order denying the plaintiff's motion to remove default and judgment pursuant to Mass. R. Civ. P. 60 (b), 365 Mass. 828 (1974). We affirm.

Background. The plaintiff filed the underlying action on April 18, 2022, alleging that the defendants obtained her credit card and bank account information and fraudulently charged $132,833.93 to her personal and business accounts over a period of eight years. After the plaintiff failed to submit a pretrial memorandum in advance of a January 12, 2024 pretrial conference, a new pretrial conference was scheduled for March 15, 2024. The plaintiff's attorney failed to appear for the March 15, 2024 pretrial conference. As a result, the action was dismissed without prejudice.

The plaintiff first moved to set aside the dismissal on July 10, 2025 (rule 60 [b] motion), more than one year after the dismissal. See Mass. R. Civ. P. 60 (b). On July 15, 2025, a different judge from the judge who entered the dismissal allowed the rule 60 (b) motion relying on the plaintiff's implication that the defendants did not oppose the motion.² In response to the order, defense counsel then filed a motion to withdraw, maintaining (1) that the withdrawal motion was unnecessary because their representation of the defendants ended when the action was dismissed, and (2) that plaintiff's rule 60 (b) motion was untimely. As a result, the judge vacated the order allowing the rule 60 (b) motion. On September 11, 2025, the plaintiff filed a second rule 60 (b) motion, and on October 30, 2025, the same judge denied the motion. The plaintiff grounded both rule 60 (b) motions on excusable neglect. See Mass. R. Civ. P. 60 (b).

Discussion. “Rule 60 (b) (1) allows a judge to grant relief from a judgment on the grounds of ‘mistake, inadvertence, surprise, or excusable neglect.’ ” Kennedy v. Beth Israel Deaconess Med. Ctr., Inc., 73 Mass. App. Ct. 459, 464 (2009), quoting Mass. R. Civ. P. 60 (b) (1). A motion brought under rule 60 (b) (1) must be brought within one year of entry of judgment, and “[t]his one-year time limit cannot be extended.” Chavoor v. Lewis, 383 Mass. 801, 803 (1981), citing Mass. R. Civ. P. 60 (b).

Here, because the plaintiff waited over one year to file her rule 60 (b) motions based on excusable neglect, the second judge lacked the authority to vacate the judgment. See Chavoor, 383 Mass. at 803-804. The plaintiff's second rule 60 (b) motion was correctly denied. See Mass. R. Civ. P. 60 (b).³

October 30, 2025 order denying motion to remove default and judgment affirmed.

FOOTNOTES

2.   The plaintiff's motion states that a “motion was served on counsel and at opposing counsel's direction directly upon defendants,” but does not acknowledge that defense counsel had repeatedly informed the plaintiff that defense counsel no longer represented the defendants.

3.   The defendants’ request for attorney's fees and double costs is denied.