2017 Mass.App.Div. 179, Figueroa v. Hussain

Citation:2017 Mass.App.Div. 179
Opinion Judge:HADLEY, P.J.
Party Name:CARMEN M. FIGUEROA v. AMJAD HUSSAIN and another [1]
Attorney:Paul J. Franco for the plaintiff. Peter B. Clifford for the defendants.
Judge Panel:Present: Hadley, P.J., Noonan & Poehler, JJ
Case Date:November 22, 2017
Court:Massachusetts Appellate Division
 
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2017 Mass.App.Div. 179

CARMEN M. FIGUEROA

v.

AMJAD HUSSAIN and another 1

Massachusetts Appellate Division, District Court Department, Western District

November 22, 2017

July 17, 2015

Paul J. Franco for the plaintiff.

Peter B. Clifford for the defendants.

Present: Hadley, P.J., Noonan & Poehler, JJ.

HADLEY, P.J.

This action was commenced in the Worcester District Court in June, 2012. The plaintiff, Carmen M. Figueroa, alleges that in October, 2010, she was a tenant living in residential property owned and controlled by the defendants, Amjad Hussain ("Hussain") and Ameeta Walia. The plaintiff asserts that mold in the residence caused her to suffer personal injury and to incur medical expenses. The defendants filed an answer in August, 2012. Although the filing of an answer and counterclaims is not reflected on the docket, the record on appeal indicates that the defendants filed counterclaims with their answer and that their counterclaims remain unresolved.

On April 10, 2013, each defendant, through counsel, propounded a set of interrogatories to be answered by the plaintiff. The plaintiff failed to respond within forty-five days as required under Mass. R. Civ. P. 33, and there is no indication in the record that the plaintiff requested additional time to provide answers to the two sets of interrogatories. On August 22, 2013, pursuant to Mass. R. Civ. P. 33(a)(3), each of the defendants served a final request for answers upon the plaintiff, warning that the defendants could apply for final judgment if answers were not provided. No answers were received from the plaintiff, and, again, there is no evidence in the record that the plaintiff or her attorney sought additional time to respond from the defendants or the court.

On October 2, 2013, the defendants filed an application for final judgment pursuant to Mass. R. Civ. P. 33(a)(4). On October 15, 2013, plaintiff's counsel mailed out answers to interrogatories propounded by Hussain. On October 16, 2013, judgment entered, and the plaintiff's claims were dismissed for her failure to answer interrogatories in a timely manner.

On October 28, 2013, the plaintiff filed a motion to vacate the judgment of dismissal that had entered against her. In support of this motion, the plaintiff provided an affidavit of counsel stating that sometime after suit was filed, the plaintiff moved to Connecticut and that it was difficult for the plaintiff's attorney to contact her. The affidavit stated that mailings that were sent to the plaintiff at her previous address were returned by the United States Postal Service. In addition, the plaintiff attached

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a copy of her answers to the interrogatories...

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