Liacos, C.J.
The plaintiffs, Gordon S. and Jean B. Russell, challenge the dismissal of their appeal from a judgment of the District Court. The underlying case arose from the grant of a special permit by the board of appeals of Truro (board)2 to the defendant McOwen-Hanelt. Before us is only the procedural issue whether the dismissal of the appeal was proper; the merits of the underlying zoning dispute are not before us. We transferred the case to this court on our own motion, to emphasize once again an appellant’s responsibilities for providing transcripts of lower court proceedings that were recorded electronically. We affirm. Since we have determined the issue at hand to require judicial determination, we deny the motion for damages and costs filed by the defendant McOwen-Hanelt under Mass. R. A. P. 25, as amended, 378 Mass. 925 (1979).
1. Procedural history. The plaintiffs filed a complaint in the District Court on June 21, 1989, seeking de novo review of a decision by the board to grant McOwen-Hanelt a special permit for the use of her land. A trial was conducted, the proceedings of which were recorded electronically. On August 8, 1990, judgment was entered in favor of the defendant.
The plaintiffs filed a timely notice of appeal from the judgment on August 27, 1990. In accordance with Mass. R. A. P. 8 (b) (3) (ii), as amended, 388 Mass. 1106 (1983),3 the plaintiffs also submitted a request to the clerk of the lower [108] court for a cassette copy of the electronic recording of the trial proceedings.4 As later found by a judge of the District Court, the cassette became available during the week of September 17, 1990, and the clerk’s office so notified the plaintiffs’ counsel. The plaintiffs deny receipt of that notice. On October 22, 1990, the defendant filed a motion to dismiss the appeal, pursuant to Mass. R. A. P. 10 (c), as amended, 378 Mass. 937 (1979),5 arguing that the plaintiffs had failed to comply with Mass. R. A. P. 9 (c) (2), as amended, 378 Mass. 935 (1979),6 which requires appellants within forty days of filing an appeal7 either to submit a transcript to the clerk of the lower court or to certify that the transcript is [109] being prepared. A judge of the District Court held a hearing on this motion on October 29, 1990. Between the filing of the motion and the holding of the hearing, the plaintiffs filed an opposition to the motion; they also filed a new request for the cassette, and they received the cassette during this time period. On the basis of affidavits filed by both parties, the motion to dismiss was granted on November 5, 1990. The plaintiffs nevertheless continued to prepare a transcript, and they filed a motion for reconsideration as well as a motion requesting an evidentiary hearing. On April 1, 1991, the motion for reconsideration was denied.
2. Dismissal of appeal pursuant to rule 10 (c). “The test to determine whether the judge was warranted in dismissing the plaintiff’s appeal is whether he abused his discretion.” McCarthy v. O’Connor, 398 Mass. 193, 196 (1986). Represented by additional counsel, the plaintiffs argue (1) that they did comply with rule 9 (c); (2) that they cured any defect before the hearing on the motion to dismiss; and (3) that any procedural missteps were the product of excusable neglect. The record does not support these arguments.
a. Compliance with rule 9 (cj. The judge found that the plaintiffs did not comply with rule 9 (c) (2). Rule 9 (c) (2) requires an appellant in a civil case to take one of two actions within forty days of filing of a notice of appeal: (1) deliver a transcript of the lower court proceedings to the clerk; or (2) file a signed statement certifying that the transcript has been ordered “from the court reporter.” In cases where the proceedings have been electronically recorded, there is of course no court reporter. As a result, the plaintiffs argue, the requirement of notifying the clerk that the transcript has been ordered from the court reporter translates into a requirement of notifying the clerk that the cassette has been requested (which the plaintiffs claim they did). This argument is incorrect. In a case where trial proceedings have been electronically recorded, rule 9 (c) (2) “require [s] the [appellant] to deliver either a transcript or a signed statement certifying that the tapes [are] being transcribed, to the clerk or register’s office, [no later than] forty days after [the] [110] appeal was filed.” Hawkins v. Hawkins, 397 Mass. 401, 406 (1986). See McCarthy, supra at 198 (in case where proceedings were electronically recorded, plaintiff could not argue that “she delivered a transcript to the [clerk] within forty days after she filed her notice of appeal, or that within that period she delivered to the [clerk] a signed certification that she had ordered a transcript”). The plaintiffs did not certify within forty days that the cassette was being transcribed, nor did they submit the transcript. They did not comply with rule 9 (c).
Under rule 10 (c), failure to comply with rule 9 (c) is a ground for dismissal; however, the judge may not dismiss the case if the appellant cures the defect before the hearing on the motion to dismiss or if the defect was due to excusable neglect.
b. Failure to cure defect. Prior to the hearing on the motion to dismiss, the plaintiffs neither filed the transcript with the clerk nor filed a signed statement certifying that the transcript had been ordered. Therefore, they did not cure their defect within the time allowed by rule 10 (c).8
c. Inexcusable neglect. The judge found that the plaintiffs’ failure to comply with rule 9 (c) (2) was due to “inexcusable neglect.” The plaintiffs challenge this finding, arguing in essence that their neglect was due to the failure on the part of the clerk of court to provide them with the cassette on request. “We have said that an appeal should not be dismissed for failure to follow the rules of appellate procedure if the error' was not attributable to the appellant.” Hawkins, supra at 408.
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Liacos, C.J.
The plaintiffs, Gordon S. and Jean B. Russell, challenge the dismissal of their appeal from a judgment of the District Court. The underlying case arose from the grant of a special permit by the board of appeals of Truro (board)2 to the defendant McOwen-Hanelt. Before us is only the procedural issue whether the dismissal of the appeal was proper; the merits of the underlying zoning dispute are not before us. We transferred the case to this court on our own motion, to emphasize once again an appellant’s responsibilities for providing transcripts of lower court proceedings that were recorded electronically. We affirm. Since we have determined the issue at hand to require judicial determination, we deny the motion for damages and costs filed by the defendant McOwen-Hanelt under Mass. R. A. P. 25, as amended, 378 Mass. 925 (1979).
1. Procedural history. The plaintiffs filed a complaint in the District Court on June 21, 1989, seeking de novo review of a decision by the board to grant McOwen-Hanelt a special permit for the use of her land. A trial was conducted, the proceedings of which were recorded electronically. On August 8, 1990, judgment was entered in favor of the defendant.
The plaintiffs filed a timely notice of appeal from the judgment on August 27, 1990. In accordance with Mass. R. A. P. 8 (b) (3) (ii), as amended, 388 Mass. 1106 (1983),3 the plaintiffs also submitted a request to the clerk of the lower [108] court for a cassette copy of the electronic recording of the trial proceedings.4 As later found by a judge of the District Court, the cassette became available during the week of September 17, 1990, and the clerk’s office so notified the plaintiffs’ counsel. The plaintiffs deny receipt of that notice. On October 22, 1990, the defendant filed a motion to dismiss the appeal, pursuant to Mass. R. A. P. 10 (c), as amended, 378 Mass. 937 (1979),5 arguing that the plaintiffs had failed to comply with Mass. R. A. P. 9 (c) (2), as amended, 378 Mass. 935 (1979),6 which requires appellants within forty days of filing an appeal7 either to submit a transcript to the clerk of the lower court or to certify that the transcript is [109] being prepared. A judge of the District Court held a hearing on this motion on October 29, 1990. Between the filing of the motion and the holding of the hearing, the plaintiffs filed an opposition to the motion; they also filed a new request for the cassette, and they received the cassette during this time period. On the basis of affidavits filed by both parties, the motion to dismiss was granted on November 5, 1990. The plaintiffs nevertheless continued to prepare a transcript, and they filed a motion for reconsideration as well as a motion requesting an evidentiary hearing. On April 1, 1991, the motion for reconsideration was denied.
2. Dismissal of appeal pursuant to rule 10 (c). “The test to determine whether the judge was warranted in dismissing the plaintiff’s appeal is whether he abused his discretion.” McCarthy v. O’Connor, 398 Mass. 193, 196 (1986). Represented by additional counsel, the plaintiffs argue (1) that they did comply with rule 9 (c); (2) that they cured any defect before the hearing on the motion to dismiss; and (3) that any procedural missteps were the product of excusable neglect. The record does not support these arguments.
a. Compliance with rule 9 (cj. The judge found that the plaintiffs did not comply with rule 9 (c) (2). Rule 9 (c) (2) requires an appellant in a civil case to take one of two actions within forty days of filing of a notice of appeal: (1) deliver a transcript of the lower court proceedings to the clerk; or (2) file a signed statement certifying that the transcript has been ordered “from the court reporter.” In cases where the proceedings have been electronically recorded, there is of course no court reporter. As a result, the plaintiffs argue, the requirement of notifying the clerk that the transcript has been ordered from the court reporter translates into a requirement of notifying the clerk that the cassette has been requested (which the plaintiffs claim they did). This argument is incorrect. In a case where trial proceedings have been electronically recorded, rule 9 (c) (2) “require [s] the [appellant] to deliver either a transcript or a signed statement certifying that the tapes [are] being transcribed, to the clerk or register’s office, [no later than] forty days after [the] [110] appeal was filed.” Hawkins v. Hawkins, 397 Mass. 401, 406 (1986). See McCarthy, supra at 198 (in case where proceedings were electronically recorded, plaintiff could not argue that “she delivered a transcript to the [clerk] within forty days after she filed her notice of appeal, or that within that period she delivered to the [clerk] a signed certification that she had ordered a transcript”). The plaintiffs did not certify within forty days that the cassette was being transcribed, nor did they submit the transcript. They did not comply with rule 9 (c).
Under rule 10 (c), failure to comply with rule 9 (c) is a ground for dismissal; however, the judge may not dismiss the case if the appellant cures the defect before the hearing on the motion to dismiss or if the defect was due to excusable neglect.
b. Failure to cure defect. Prior to the hearing on the motion to dismiss, the plaintiffs neither filed the transcript with the clerk nor filed a signed statement certifying that the transcript had been ordered. Therefore, they did not cure their defect within the time allowed by rule 10 (c).8
c. Inexcusable neglect. The judge found that the plaintiffs’ failure to comply with rule 9 (c) (2) was due to “inexcusable neglect.” The plaintiffs challenge this finding, arguing in essence that their neglect was due to the failure on the part of the clerk of court to provide them with the cassette on request. “We have said that an appeal should not be dismissed for failure to follow the rules of appellate procedure if the error' was not attributable to the appellant.” Hawkins, supra at 408.
We begin with the finding of the judge that the assistant clerk did notify the plaintiffs’ counsel’s office of the availabil[111] ity of the tape. The plaintiffs contest this finding and argue that the judge should have conducted an evidentiary hearing rather than rely on the affidavits filed. The judge did not abuse his discretion by relying on the affidavits. The plaintiffs requested an evidentiary hearing only after the judge granted the motion to dismiss, so that issue is not properly raised. There was no clear error in the judge’s finding. See Tammaro v. Colarusso, 11 Mass. App. Ct. 44, 47 (1980). We note that rule 8 (b) (3) (ii) places a responsibility on the clerk to provide the cassette promptly to the appellant. While it might be preferable for the clerk to provide written notice on a standard form, or to make a docket entry that notice has been given, even if we assume that the clerk’s office somehow had breached its duty properly to notify the plaintiffs of the cassette’s availability, the plaintiffs’ neglect would not be excusable. Rule 9 states that its provisions apply regardless of the provisions of other rules. We have repeatedly said that the burden of pursuing an appeal falls on the appellant. As the end of the forty-day period following the filing of an appeal approaches, the appellant has a responsibility to take action designed to have a transcript available. Of course, if the appellant is unable to obtain the cassette from the clerk, any neglect may be excusable, but in this case, the judge found that the cassette was available within the forty-day period and that counsel was so notified.
We conclude by noting that we could reinstate this appeal despite the fact that there was no error below. See Mass. R. A. P. 3 (a), as amended, 378 Mass. 927 (1979). However, as the defendant has been prejudiced by her inability to use her land, as the plaintiffs did not cure their mistakes before the hearing or even begin to provide for a transcription, and as the plaintiffs have provided far too little information for us to determine whether there is any merit to their claim, we shall not invoke our equitable powers. See Hawkins, supra at 409.
3. Damages. The defendant requests damages under Mass. R. A. P. 25, arguing that the appeal was frivolous. We took the case on our motion believing that the procedural issue [112] warranted our attention. In this circumstance we cannot say fairly that the issue was frivolous. The motion is denied.
4. Conclusion. The allowance of the motion to dismiss the appeal is affirmed. The defendant’s motion for damages and costs is denied.
So ordered.
“(c) Appellant’s Obligation.
“(1) In General. In a civil or criminal case, upon request by the clerk of the lower court, the appellant shall forthwith perform any act reasonably necessary to enable the clerk to assemble the record and the clerk shall assemble a single record.”
“(2) Civil Cases. Notwithstanding any other obligation which these rules may impose, each appellant in a civil case shall, within forty days after filing a notice of appeal, deliver to the clerk of the lower court either (i) a transcript of those portions of the transcript of the lower court proceedings which the appellant deems necessary for determination of the appeal, or (ii) a signed statement certifying that the appellant has ordered such portions from the court reporter. Upon receiving the transcript, the appellant in a civil case shall forthwith deliver it to the clerk of the lower court.”