NADER BARGSHADY v. VOLODYMYR HRYNCHUK & Others.

• Court: Massachusetts Appeals Court
• Decided: January 21, 2026
• Docket: 25-P-0087
• Status: Unpublished

Opinion

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

25-P-87

NADER BARGSHADY

vs.

VOLODYMYR HRYNCHUK & others.1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, Nader Bargshady, appeals from a Superior

Court order denying his motion to reconsider a judgment

dismissing a complaint by which the plaintiff sought to vacate

an arbitration award.2 We affirm.

Background. In January 2023, the plaintiff contracted with

Weles, Inc. (Weles), to perform floor refinishing work in his

home. Weles completed the initial work, involving sanding,

staining, and repairing a section of floorboards, in April 2023.

1 Oleksandr Sasha Serdiuk and Lizardo Giraldo.

Although the plaintiff's notice of appeal refers only to 2

the order denying the motion for reconsideration, we address his arguments relating to the underlying judgment of dismissal because the notice of appeal was timely as to the dismissal and both parties address the dismissal in their briefs. The plaintiff accepted the work and paid the invoice. A few

weeks later, the plaintiff complained that he was not happy with

the work on some of the boards and Weles returned to do

additional repairs. The plaintiff again appeared to accept the

work but later complained and demanded a refund. The plaintiff

and Weles signed an agreement to arbitrate their dispute using

FairClaims, Inc., a virtual arbitration service based out of

California, and, on October 9, 2023, an arbitrator held an

evidentiary hearing via teleconference. On October 17, 2023,

the arbitrator issued an award dismissing the plaintiff's claim.3

The plaintiff does not dispute that he received notice of the

arbitrator's decision no later than October 21, 2023.

On January 12, 2024, after negotiating with Weles for

thirty-nine days, the plaintiff filed a complaint in the Federal

District Court to vacate the award. On April 3, 2024, a judge

dismissed the complaint without prejudice for lack of Federal

subject matter jurisdiction. On April 24, 2024, the plaintiff

filed in Superior Court a complaint seeking to vacate the

arbitration award against Weles' owner, Volodymyr Hrynchuk;

project manager, Oleksandr Sasha Serdiuk; and lead foreman,

3 The arbitrator found that Weles performed the work for which it was hired, and that the plaintiff accepted the performance.

2 Lizardo Giraldo (together, the defendants).4 After a hearing, a

judge granted the defendants' motion to dismiss, pursuant to

Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754 (1974), based on the

untimeliness of the complaint. The same judge subsequently

denied the plaintiff's motion for reconsideration, which raised

for the first time the argument that the statute of limitations

should have been tolled for the periods during which the parties

negotiated and the Federal court case was pending.

Discussion. We review the allowance of a motion to dismiss

de novo. Galiastro v. Mortgage Elec. Registration Sys., Inc.,

467 Mass. 160, 164 (2014). In evaluating a ruling on a motion

to dismiss under rule 12 (b) (6), we generally limit our

consideration to "the allegations in the complaint, although

matters of public record, orders, items appearing in the record

of the case, and exhibits attached to the complaint, also may be

taken into account" (citation omitted). Schaer v. Brandeis

Univ., 432 Mass. 474, 477 (2000). To survive such a motion, a

complaint must plausibly suggest an entitlement to relief. See

Iannacchino v. Ford Motor Co., 451 Mass. 623, 636 (2008). We

review the denial of a motion for reconsideration for an abuse

of discretion. See Audubon Hill S. Condominium Ass'n v.

4 Weles was not named as a party in the complaint, although it was the respondent in the arbitration.

3 Community Ass'n Underwriters of Am., Inc., 82 Mass. App. Ct.

461, 470 (2012).

1. Timeliness of State court filing. The plaintiff claims

that his right to challenge the arbitration award was governed

by the Federal Arbitration Act (FAA), 9 U.S.C. §§ 1 et seq. The

defendants counter that the Massachusetts Arbitration Act (MAA),

G. L. c. 251, §§ 1 et seq., applies to the plaintiff's claim.

The FAA allows ninety days for a party to seek to vacate an

award, 9 U.S.C. § 12, whereas an application under the MAA must

be made within thirty days, G. L. c. 251, § 12 (b). We need not

resolve this issue, however, because the plaintiff's claim was

time barred under either statute. The plaintiff was on notice

of the arbitration award by October 21, 2023, thus his complaint

in Superior Court, filed more than six months later on April 24,

2024, was not timely under the FAA limit or the MAA limit.5

2. Equitable tolling. The plaintiff also argues that the

judge should have applied equitable tolling for the periods of

time when the parties were negotiating the arbitration award and

5 The plaintiff raises additional issues about the procedural fairness of the arbitration process, including that the arbitrator showed bias toward the defendants and that a defendant falsely testified. Because the plaintiff did not challenge the arbitration award within the statutorily required time period, we do not consider these challenges to the arbitration award. See Kauders v. Uber Techs., Inc., 486 Mass. 557, 565-566 (2021) (court must confirm arbitration award where challenge not brought within required time period).

4 when the complaint was pending in Federal court. "Equitable

tolling is available in circumstances in which the plaintiff is

excusably ignorant about the . . . statutory filing period."

Andrews v. Arkwright Mut. Ins. Co., 423 Mass. 1021, 1022 (1996).

In denying the plaintiff's motion for reconsideration, the judge

noted that "equitable tolling arguments should have been

addressed at the prior hearing [on the motion to dismiss]."

The defendants' motion to dismiss raised the timeliness of

the complaint as the primary reason for dismissal. However,

despite being on notice from the defendants that timeliness was

the main issue in dispute, the plaintiff's opposition to the

defendants' motion to dismiss did not raise the equitable

tolling argument. A motion for reconsideration is not the

appropriate stage to raise new legal theories. See Commissioner

of Revenue v. Comcast Corp., 453 Mass. 293, 312 (2009).

To the extent that the plaintiff argues the judge was

required to apply equitable tolling at the motion to dismiss

stage, even absent the plaintiff raising it, we disagree.

"Equitable tolling is to be 'used sparingly,' and the

circumstances where tolling is available are exceedingly

limited." Halstrom v. Dube, 481 Mass. 480, 485 (2019), citing

Shafnacker v. Raymond James & Assocs., Inc., 425 Mass. 724, 725-

726, 728-729 (1997). The judge was not obligated to raise this

issue sua sponte, and in the case of the thirty-nine-day

5 negotiation period, would not be permitted to apply it even if

properly raised. See Shafnacker, 425 Mass. at 728 (tolling not

permitted for delay due to arbitration or possibility of

settlement); see also Local 589, Amalgamated Transit Union v.

Massachusetts Bay Transp. Auth., 397 Mass. 426, 431 (1986)

(thirty-day period to challenge arbitration award must be

strictly construed to ensure stability and finality in

arbitration process). We thus discern no abuse of discretion in

the judge's determination that the plaintiff waived his

equitable tolling argument by failing to raise it until the

motion for reconsideration.

Judgment affirmed.

Order denying motion for reconsideration affirmed.

By the Court (Grant, Brennan & Smyth, JJ.6),

Clerk

Entered: January 21, 2026.

6 The panelists are listed in order of seniority.