Londergan v. Broyer

1987 Mass. App. Div. 201, 1987 Mass. App. Div. LEXIS 82

Opinion

Silva, J.

This matter purports to be an appeal from the final judgment entered April 22,1987 and the court’s denial of a Motion to Alter and Amend Judgment dated June 2, 1987 and received by counsel on June 11, 1987.

The plaintiff filed a Motion to Alter and Amend Judgment on May 4, 1987 which would have tolled the running of the ten day rule had it been filed, timely. Rules 52(b) and 59(e) require that such motions be served, in Rule 59(e) cases, or made, in Rule 52(b) cases, not later than ten days after entry of judgment. Eastern Tank of Peabody Inc. v. William Moore, 1986 Mass. App. Div. 58, 60. As the plaintiffs post-judgment motion was subsequently denied on June 2,1987, the ten day period for filing a draft report based on the denial of said motion commenced running. The draft report was filed on June 17, 1987.

No request for extension of the ten day rule was requested as permitted by Rule 64 (c)(l)(ii).

The fact that the plaintiff did not receive the notice until June 11,1987 does not excuse compliance in the light of Rule 77(d) that “(l)ackof notice of the entry (of judgment) by the clerk does not affect the time to request a report or file a draft report, or authorize the court to relieve a party for failure to request a report or file a draft report within the time allowed, except as permitted in rule 64(c) of these rules.” Locke v. Slater, 307 Mass. 682 (1982).

Report dismissed.