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March 17, 2026 Get Citation Alerts Download PDF Add Note

Flavia Benitez v. Massachusetts Bay Transportation Authority.

Massachusetts Appeals Court

• Citations: None known
• Docket Number: 25-P-0064

• Precedential Status: Non-Precedential

• Opinion

• Authorities (5)

• Cited By (0)

• Summaries (0)

• Similar Cases (0)

• PDF

Combined 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-64

FLAVIA BENITEZ1

vs.

MASSACHUSETTS BAY TRANSPORTATION AUTHORITY.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

On November 14, 2023, after a bench trial, a Superior Court

judge entered judgment dismissing plaintiff Flavia Benitez's

claim for negligence against the Massachusetts Bay Transit

Authority (MBTA). The plaintiff subsequently filed three

motions for a new trial.2 The judge denied the first two motions

for procedural defects and denied the third motion on the

merits, in a written decision entered on December 21, 2023. The

plaintiff then filed a number of motions concerning the trial

transcript, exhibits, and appellate record resulting in, as

1 A self-represented litigant.

2The plaintiff filed the first motion on November 20, 2023,
the second motion on December 5, 2023, and the third motion on
December 19, 2023.
relevant here, a June 16, 2025 order partially denying her

motion to correct the appellate record. The plaintiff now

appeals from the judgment, from the order denying her third

motion for a new trial, and from so much of the June 16, 2025

order that denied her motion to correct the appellate record.

We dismiss the plaintiff's appeal from the November 14, 2023

judgment as untimely; affirm the December 21, 2023 order denying

the plaintiff's motion for a new trial; and dismiss, as moot,

the appeal from the June 16, 2025 order partially denying the

plaintiff's motion to correct the appellate record.

Discussion. 1. Plaintiff's appeal from the judgment. "A

timely notice of appeal is a jurisdictional prerequisite to our

authority to consider any matter on appeal." DeLucia v. Kfoury,

93 Mass. App. Ct. 166, 170 (2018). A party generally must file

an appeal from a judgment in a civil action within thirty days

of the entry of judgment, but that thirty-day period is tolled

if a motion listed within rule 4 (a) (2) of the Massachusetts

Rules of Appellate Procedure is made or served in a timely

manner. Mass. R. A. P. 4 (a) (1)-(2), as appearing in 481 Mass.

1606 (2019). "Any motion for a new trial filed after the period

set out by Mass. R. Civ. P. 59 (b)[, 365 Mass. 827 (1974),]

would have to be considered as falling within Mass. R. Civ. P.

60 (b), 365 Mass. 828 (1974)." Stephens v. Global NAPs, 70

Mass. App. Ct. 676, 682 (2007). Rule 60 (b) motions do not toll

2
the thirty-day period unless they are "served within 10 days

after entry of judgment." Mass. R. A. P. 4 (a) (2) (A) (iii).

See Stephens, supra.

On January 4, 2024, the plaintiff filed her first notice of

appeal from the judgment entered on November 14, 2023. She then

filed a second notice of appeal on January 16, 2024, from the

judgment and from the denial of her motion for a new trial on

December 21, 2023. Because the judgment entered on November 14,

2023, the plaintiff's notices of appeal would only be timely if

her first new trial motion tolled the thirty-day appeal period.

See Mass. R. A. P. 4 (a) (2) (A) (iii).

The judge denied the plaintiff's first motion for a new

trial "for failure to comply with Rule 9A," and dismissed her

second motion for a new trial because "The Plaintiff cannot rely

on defective service from an already DENIED Motion." Because

the plaintiff failed to properly serve her first two new trial

motions, those motions did not toll the thirty-day appeal

period. The plaintiff's third motion for a new trial, though

apparently served, was too late to toll the thirty-day period.

Mass. R. A. P. 4 (a) (2) (A) (iii); Stephens, 70 Mass. App. Ct.

at 682. We therefore dismiss the plaintiff's appeal from the

judgment.

1. Third motion for a new trial. "An appellant's

obligation to include . . . copies of motions which are

3
essential for review of the issues raised on appeal . . . is a

fundamental and long-standing rule of appellate civil practice"

(quotation and citation omitted). Cameron v. Carelli, 39 Mass.

App. Ct. 81, 84 (1995). See Mass. R. A. P. 8 (a)-(c), as

appearing in 481 Mass. 1611 (2019); Mass. R. A. P. 18 (a), as

appearing in 481 Mass. 1637 (2019).

Although the plaintiff provided the defendant's opposition

to her motion, the plaintiff did not provide the motion itself.3

See Cameron, 39 Mass. App. Ct. at 84. To attempt to review the

merits of her argument without the motion itself would require

us to speculate as to the legal and factual bases for the

plaintiff's motion, which we will not do. See DosSantos v. Beth

Israel Deaconess Hosp.-Milton, Inc., 497 Mass. 34, 43 (2026)

(Supreme Judicial Court unwilling to speculate on content of

documents not in the record appendix); Cameron, supra.

Accordingly, we affirm the denial of the plaintiff's third

motion for new trial.

1. Motion to correct the appellate record. "A moot case

is one where a court can order no further effective relief"

(quotation and citation omitted). Branch v. Commonwealth

Employment Relations Bd., 481 Mass. 810, 817 (2019). Because we

3 The plaintiff's motion to correct the appellate record
does not address the absence of the motion for a new trial in
the appellate record.

4
address the plaintiff's arguments challenging the final

disposition of her claim for negligence on grounds unrelated to

the motion to correct the appellate record, any relief regarding

the plaintiff's motion to correct the appellate record would

have no practical effect. See id. We accordingly dismiss, as

moot, the plaintiff's appeal from the June 16, 2025 order

partially denying the plaintiff's motion to correct the

appellate record.

Conclusion. The plaintiff's appeals from the November 14,

2023 judgment and the June 16, 2025 order partially denying the

plaintiff's motion to correct the appellate record are

dismissed. The December 21, 2023 order denying the plaintiff's

motion for a new trial is affirmed.

So ordered.

By the Court (Desmond,
Hershfang & Brennan, JJ.4),

Clerk

Entered: March 17, 2026.

4 The panelists are listed in order of seniority.

5