NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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 23.0 or 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. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
24-P-1324
IRMINA MYSZKOWSKA
vs.
MASSACHUSETTS BAY TRANSPORTATION AUTHORITY.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, Irmina Myszkowska, appeals from a judgment
issued by a judge of the Superior Court allowing the defendant's
motion to dismiss pursuant to Mass. R. Civ. P. 12 (b) (6), 365
Mass. 754 (1974), or alternatively for summary judgment pursuant
to Mass. R. Civ. P. 56, 365 Mass. 824 (1974). The motion judge
allowed the motion on the ground that the plaintiff failed to
satisfy the presentment requirement of G. L. c. 258, § 4. We
affirm.
Background. The plaintiff alleges that she was injured on
October 5, 2019, when a Massachusetts Bay Transportation
Authority (MBTA) fare gate closed on her wrist. The plaintiff
sent a presentment letter describing her claims to three people: the Attorney General of the Commonwealth of Massachusetts, the
Secretary of the Massachusetts Department of Transportation, and
the Chairman of the Fiscal and Management Control Board of the
Massachusetts Department of Transportation. 1 The plaintiff did
not present her claim to the MBTA General Manager.
After the plaintiff commenced her negligence action, the
defendant filed a motion to dismiss or, alternatively, for
summary judgment on the ground that the plaintiff failed to
present her claim to the executive officer of the MBTA as
required by G. L. c. 258, § 4. After a hearing, the judge
denied the motion without prejudice and ordered limited
discovery to discover whether the defendant, nevertheless, had
actual knowledge of the plaintiff's claim. Following this
limited discovery, the defendant renewed the motion. The judge
allowed the motion and dismissed the plaintiff's claim without
an additional hearing on the grounds that the plaintiff failed
1 At the time that the plaintiff presented her claims, the board of directors of the Massachusetts Department of Transportation and the Fiscal and Management Control Board governed the MBTA. See G. L. c. 161A, § 7, as amended through St. 2012, c. 242, § 9 (effective Aug. 9, 2012) ("The authority shall be governed and its corporate powers exercised by the board of directors of the Massachusetts Department of Transportation established under chapter 6C"); St. 2015, c. 46, §§ 199-200 (effective July 17, 2015) ("the control board shall be afforded all powers, responsibilities and obligations relative to the authority that are vested in the board, except as otherwise provided in this act").
2 to show that the MBTA's executive officer received actual notice
of her complaint within two years of her alleged accident.
Discussion. "We review the grant of a motion to dismiss de
novo, accepting as true all well-pleaded facts alleged in the
complaint, drawing all reasonable inferences therefrom in the
plaintiff's favor, and determining whether the allegations
plausibly suggest that the plaintiff is entitled to relief."
Lanier v. President & Fellows of Harvard College, 490 Mass. 37,
43 (2022).
The Massachusetts Tort Claims Act (MTCA) requires that "[a]
civil action shall not be instituted against a public employer
on a claim for damages . . . unless the claimant shall have
first presented his claim in writing to the executive officer of
such public employer within two years after the date upon which
the cause of action arose . . . ." G. L. c. 258, § 4. The MBTA
is a public employer under the MTCA. G. L. c. 258, § 1
(defining "public employer" to include MBTA). At the time the
plaintiff sent her presentment letter, the MTCA defined the
executive officer of the MBTA as "its general manager and rail
and transit administrator." G. L. c. 258, § 1, as amended
through St. 2012, c. 132, § 3 (effective June 29, 2012). 2 "An
2 The MTCA now defines the executive officer of the MBTA as "its general manager." G. L. c. 258, § 1, as amended through St. 2024, c. 206, § 16 (effective Sep. 16, 2024).
3 oft-recited proposition is that presentment must be made 'in
strict compliance with the statute.'" Martin v. Commonwealth,
53 Mass. App. Ct. 526, 528 (2002), quoting Weaver v.
Commonwealth, 387 Mass. 43, 47 (1982). The presentment
requirement "ensure[s] that the responsible public official
receives notice of the claim so that the official can
investigate" (citation omitted). Murray v. Hudson, 472 Mass.
376, 384 (2015). "If a sensible construction is available, we
shall not construe a statute to make a nullity of pertinent
provisions or to produce absurd results." Flemings v.
Contributory Retirement Appeal Bd., 431 Mass. 374, 375-376
(2000).
"[U]nder the 'actual notice' exception, the presentment
requirement will be deemed fulfilled if the plaintiff can show
that, despite defective presentment, the designated executive
officer had actual notice of the written claim." Bellanti v.
Boston Pub. Health Comm'n, 70 Mass. App. Ct. 401, 407 (2007).
"Under our precedents, notice to the executive officer will not
be inferred or imputed from the fact that others with
responsibility for investigation and settlement of the dispute
received the plaintiff's presentment letter and were in contact
with the plaintiff." Id. at 408.
When the Legislature defined the MBTA's executive officer
as the "general manager and rail and transit administrator," the
4 acting General Manager also held the title "Rail and Transit
Administrator." See Massachusetts Bay Transportation Authority,
MBTA Announces Appointment of an Acting General Manager (Aug.
22, 2011), https://www.mbta.com/news/2011-08-22/mbta-announces-
appointment-acting-general-manager ("Jonathan Davis will become
the acting MBTA General Manager and MassDOT Rail and Transit
Administrator"); G. L. c. 258, § 1, as amended through St. 2012,
c. 132, § 3 (effective June 29, 2012). Although no person in
the MBTA held the title "general manager and rail and transit
administrator" when the plaintiff presented her claims, Steve
Poftak was, and held the title of, the MBTA General Manager.
See G. L. c. 258, § 1. Because the successor of the General
Manager and Rail and Transit Administrator only held the title
General Manager at the time the plaintiff presented her claims,
the sensible construction of G. L. c. 258, § 1, was to take its
reference to the MBTA's "general manager and rail and transit
administrator" as referring to the "general manager," rather
than allow a change in the precise title from one General
Manager to the next to nullify the Legislature's decision to
Free access — add to your briefcase to read the full text and ask questions with AI
NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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 23.0 or 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. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
24-P-1324
IRMINA MYSZKOWSKA
vs.
MASSACHUSETTS BAY TRANSPORTATION AUTHORITY.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, Irmina Myszkowska, appeals from a judgment
issued by a judge of the Superior Court allowing the defendant's
motion to dismiss pursuant to Mass. R. Civ. P. 12 (b) (6), 365
Mass. 754 (1974), or alternatively for summary judgment pursuant
to Mass. R. Civ. P. 56, 365 Mass. 824 (1974). The motion judge
allowed the motion on the ground that the plaintiff failed to
satisfy the presentment requirement of G. L. c. 258, § 4. We
affirm.
Background. The plaintiff alleges that she was injured on
October 5, 2019, when a Massachusetts Bay Transportation
Authority (MBTA) fare gate closed on her wrist. The plaintiff
sent a presentment letter describing her claims to three people: the Attorney General of the Commonwealth of Massachusetts, the
Secretary of the Massachusetts Department of Transportation, and
the Chairman of the Fiscal and Management Control Board of the
Massachusetts Department of Transportation. 1 The plaintiff did
not present her claim to the MBTA General Manager.
After the plaintiff commenced her negligence action, the
defendant filed a motion to dismiss or, alternatively, for
summary judgment on the ground that the plaintiff failed to
present her claim to the executive officer of the MBTA as
required by G. L. c. 258, § 4. After a hearing, the judge
denied the motion without prejudice and ordered limited
discovery to discover whether the defendant, nevertheless, had
actual knowledge of the plaintiff's claim. Following this
limited discovery, the defendant renewed the motion. The judge
allowed the motion and dismissed the plaintiff's claim without
an additional hearing on the grounds that the plaintiff failed
1 At the time that the plaintiff presented her claims, the board of directors of the Massachusetts Department of Transportation and the Fiscal and Management Control Board governed the MBTA. See G. L. c. 161A, § 7, as amended through St. 2012, c. 242, § 9 (effective Aug. 9, 2012) ("The authority shall be governed and its corporate powers exercised by the board of directors of the Massachusetts Department of Transportation established under chapter 6C"); St. 2015, c. 46, §§ 199-200 (effective July 17, 2015) ("the control board shall be afforded all powers, responsibilities and obligations relative to the authority that are vested in the board, except as otherwise provided in this act").
2 to show that the MBTA's executive officer received actual notice
of her complaint within two years of her alleged accident.
Discussion. "We review the grant of a motion to dismiss de
novo, accepting as true all well-pleaded facts alleged in the
complaint, drawing all reasonable inferences therefrom in the
plaintiff's favor, and determining whether the allegations
plausibly suggest that the plaintiff is entitled to relief."
Lanier v. President & Fellows of Harvard College, 490 Mass. 37,
43 (2022).
The Massachusetts Tort Claims Act (MTCA) requires that "[a]
civil action shall not be instituted against a public employer
on a claim for damages . . . unless the claimant shall have
first presented his claim in writing to the executive officer of
such public employer within two years after the date upon which
the cause of action arose . . . ." G. L. c. 258, § 4. The MBTA
is a public employer under the MTCA. G. L. c. 258, § 1
(defining "public employer" to include MBTA). At the time the
plaintiff sent her presentment letter, the MTCA defined the
executive officer of the MBTA as "its general manager and rail
and transit administrator." G. L. c. 258, § 1, as amended
through St. 2012, c. 132, § 3 (effective June 29, 2012). 2 "An
2 The MTCA now defines the executive officer of the MBTA as "its general manager." G. L. c. 258, § 1, as amended through St. 2024, c. 206, § 16 (effective Sep. 16, 2024).
3 oft-recited proposition is that presentment must be made 'in
strict compliance with the statute.'" Martin v. Commonwealth,
53 Mass. App. Ct. 526, 528 (2002), quoting Weaver v.
Commonwealth, 387 Mass. 43, 47 (1982). The presentment
requirement "ensure[s] that the responsible public official
receives notice of the claim so that the official can
investigate" (citation omitted). Murray v. Hudson, 472 Mass.
376, 384 (2015). "If a sensible construction is available, we
shall not construe a statute to make a nullity of pertinent
provisions or to produce absurd results." Flemings v.
Contributory Retirement Appeal Bd., 431 Mass. 374, 375-376
(2000).
"[U]nder the 'actual notice' exception, the presentment
requirement will be deemed fulfilled if the plaintiff can show
that, despite defective presentment, the designated executive
officer had actual notice of the written claim." Bellanti v.
Boston Pub. Health Comm'n, 70 Mass. App. Ct. 401, 407 (2007).
"Under our precedents, notice to the executive officer will not
be inferred or imputed from the fact that others with
responsibility for investigation and settlement of the dispute
received the plaintiff's presentment letter and were in contact
with the plaintiff." Id. at 408.
When the Legislature defined the MBTA's executive officer
as the "general manager and rail and transit administrator," the
4 acting General Manager also held the title "Rail and Transit
Administrator." See Massachusetts Bay Transportation Authority,
MBTA Announces Appointment of an Acting General Manager (Aug.
22, 2011), https://www.mbta.com/news/2011-08-22/mbta-announces-
appointment-acting-general-manager ("Jonathan Davis will become
the acting MBTA General Manager and MassDOT Rail and Transit
Administrator"); G. L. c. 258, § 1, as amended through St. 2012,
c. 132, § 3 (effective June 29, 2012). Although no person in
the MBTA held the title "general manager and rail and transit
administrator" when the plaintiff presented her claims, Steve
Poftak was, and held the title of, the MBTA General Manager.
See G. L. c. 258, § 1. Because the successor of the General
Manager and Rail and Transit Administrator only held the title
General Manager at the time the plaintiff presented her claims,
the sensible construction of G. L. c. 258, § 1, was to take its
reference to the MBTA's "general manager and rail and transit
administrator" as referring to the "general manager," rather
than allow a change in the precise title from one General
Manager to the next to nullify the Legislature's decision to
define the MBTA's executive officer in G. L. c. 258, § 1. See
Flemings, 431 Mass. at 375-376 ("If a sensible construction is
available, we shall not construe a statute to make a nullity of
5 pertinent provisions or to produce absurd results"). 3 Indeed, as
noted supra, the Legislature later amended G. L. c. 258, § 1, to
define the MBTA's executive officer as "its general manager."
G. L. c. 258, § 1, as amended through St. 2024, c. 206, § 16
(effective Sept. 16, 2024). The plaintiff was therefore
required to present her claims to the MBTA General Manager. See
G. L. c. 258, §§ 1, 4.
While the plaintiff did attempt to comply with the
presentment requirement's intent by sending her presentment
letter to the leadership of the Massachusetts Department of
Transportation and the Fiscal and Management Control Board,
which governed the MBTA at the time, see Murray, 472 Mass. at
384, the fact that the board governing the MBTA is involved in
the "investigation, settlement and defense," G. L. c. 161A,
§ 38, of claims against the MBTA does not satisfy the
3 The fact that the Legislature defined the executive officer of the MBTA as its "general manager and rail and transit administrator" in June 2012 and then placed the Department of Transportation in charge of the MBTA in August 2012, just two months later, without redefining the executive officer of the MBTA further supports the conclusion that the Legislature intended the General Manager, rather than the Secretary of Transportation, to be the MBTA's executive officer for the purposes of G. L. c. 258, § 4. See G. L. c. 258, § 1, as amended through St. 2012, c. 132, § 3 (effective June 29, 2012) (defining the executive officers of the MBTA as its "general manager and rail and transit administrator"); G. L. c. 161A, § 7, as amended through St. 2012, c. 242, § 9 (effective Aug. 9, 2012) (placing authority to govern the MBTA in "the board of directors of the Massachusetts Department of Transportation").
6 presentment requirement. See Bellanti, 70 Mass. App. Ct. at 407
(declining to impute notice to executive officer where
presentment was made to others with responsibility for
investigating and settling disputes). See also G. L. c. 161A,
§ 38 ("The board shall have charge of and supervise the
investigation, settlement and defense of all such claims
. . . "). To fulfill the actual notice exception, the plaintiff
therefore would have had to have shown that the General Manager
received actual notice, which, undisputably, she did not do.
Bellanti, supra. Because the plaintiff did not present her
claim to the MBTA General Manager and failed to show that the
MBTA General Manager in fact received actual notice despite
defective presentment, the motion judge correctly allowed the
7 defendant's motion. 4 See G. L. c. 258, § 4. See also Bellanti,
supra.
Judgment affirmed.
By the Court (Blake, C.J., Desmond & Singh, JJ. 5),
Clerk
Entered: December 1, 2025.
4 The plaintiff's reliance on G. L. c. 6C, § 18, to argue that presentment to the Attorney General was proper because of the Attorney General's statutory role appearing for the Massachusetts Department of Transportation also fails. G. L. c. 6C, § 18, explicitly states that " [t]he office of the attorney general shall appear for the department, its divisions, departments, agencies and officers, but not including the Massachusetts Bay Transportation Authority" (emphasis added).
5 The panelists are listed in order of seniority.