O'Dwyer v. Baskies

1993 Mass. App. Div. 227

Opinion

Donovan, J.

The plaintiffs have petitioned to establish a draft report, claiming to be aggrieved by the trial court’s dismissal of their complaint. On February 18,1992, after a trial, the action was dismissed pursuant to defendants’ Rule 41(b)(2) motions to dismiss made during the trial. The number of motions to dismiss made by the defendants is in dispute. Each time the defendants proffered their motion to dismiss it was denied by the trial judge.

The memorandum accompanying the judgment of dismissal stated that the defendants’ motion to dismiss was allowed because the plaintiff, Barbara O’Dwyer, had failed to establish that she had incurred in excess of $2,000 in reasonable and necessary medical expenses, as required by G.L.c. 231, §6D. The memorandum also stated that the judgement of dismissal expressly overruled the previous denials of the defendants’ motions to dismiss.

Rule 64 (d) of the District/Municipal Courts Rules of Civil Procedure provides that a party aggrieved by a trial court’s rulings on an interlocutory motion may request a report and file a draft report. In this action, the plaintiffs did not request a report, nor were they required to request a report, each time the defendants made their motion to dismiss during the trial because the motions were denied. When the trial court overruled its previous denials of the motions and dismissed the complaint, the plaintiffs thereafter filed a timely request for report.

As was previously decided by the Appellate Division, plaintiffs’ request for an extension of time to file the draft report was timely made and properly granted.

The report is allowed.