Kafker
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff initially prevailed on her claim to redeem real estate, pursuant to G. L. c. 236, § 39. However, upon failing to make the requisite payment to the defendant, the September 24, 2009, judgment in her favor was vacated, her complaint was dismissed, and a new judgment entered. She then filed a timely motion pursuant to Mass.R.Civ.P. 59(e), 365 Mass. 827 (1974), which tolled the appeal period. Claiming that neither she nor her attorney received notice of the disposition of that motion, the plaintiff did not timely file a notice of appeal after the motion was denied. Before us are: (1) the plaintiff's appeal from the denial by a single justice of the plaintiff's motion to file a late notice of appeal, and (2) the plaintiff's appeal from an order allowing the defendant's motion to vacate/dismiss a notice of appeal from the original September 24, 2009, judgment, which notice was timely filed by the plaintiff on November 23, 2009, following the denial of her motion for a new trial on November 4, 2009.
1. Single justice order. Discerning no error of law or abuse of discretion, see Troy Indus., Inc. v. Samson Mfg. Corp., 76 Mass. App. Ct. 575, 581 (2010), we affirm. Contrary to the plaintiff's argument, lack of notice, without more, does not establish excusable neglect or good cause. Id. at 582. See BJ's Wholesale Club, Inc. v. City Council of Fitchburg, 52 Mass. App. Ct. 585, 588 (2001).
2. Dismissal of original notice of appeal. The original judgment from which the plaintiff had appealed was vacated, and a new judgment dismissing her complaint thereafter entered. We affirm the order of dismissal on the ground that any appeal from the original judgment was rendered moot by later developments.
We deny the defendant's request for attorney's fees in No. 11-P-413.
Order of single justice affirmed.
Judgment entered on docket March 15, 2011, affirmed.
By the Court (Kafker, Cohen, & Katzmann, JJ.),