Irmina Myszkowska v. Massachusetts Bay Transportation Authority.

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

24-P-1324

IRMINA MYSZKOWSKA

vs.

MASSACHUSETTS BAY TRANSPORTATION AUTHORITY.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, Irmina Myszkowska, appeals from a judgment

issued by a judge of the Superior Court allowing the defendant's

motion to dismiss pursuant to Mass. R. Civ. P. 12 (b) (6), 365

Mass. 754 (1974), or alternatively for summary judgment pursuant

to Mass. R. Civ. P. 56, 365 Mass. 824 (1974). The motion judge

allowed the motion on the ground that the plaintiff failed to

satisfy the presentment requirement of G. L. c. 258, § 4. We

affirm.

Background. The plaintiff alleges that she was injured on

October 5, 2019, when a Massachusetts Bay Transportation

Authority (MBTA) fare gate closed on her wrist. The plaintiff

sent a presentment letter describing her claims to three people:

the Attorney General of the Commonwealth of Massachusetts, the

Secretary of the Massachusetts Department of Transportation, and

the Chairman of the Fiscal and Management Control Board of the

Massachusetts Department of Transportation. 1 The plaintiff did

not present her claim to the MBTA General Manager.

After the plaintiff commenced her negligence action, the

defendant filed a motion to dismiss or, alternatively, for

summary judgment on the ground that the plaintiff failed to

present her claim to the executive officer of the MBTA as

required by G. L. c. 258, § 4. After a hearing, the judge

denied the motion without prejudice and ordered limited

discovery to discover whether the defendant, nevertheless, had

actual knowledge of the plaintiff's claim. Following this

limited discovery, the defendant renewed the motion. The judge

allowed the motion and dismissed the plaintiff's claim without

an additional hearing on the grounds that the plaintiff failed

1 At the time that the plaintiff presented her claims, the

board of directors of the Massachusetts Department of

Transportation and the Fiscal and Management Control Board

governed the MBTA. See G. L. c. 161A, § 7, as amended through

St. 2012, c. 242, § 9 (effective Aug. 9, 2012) ("The authority

shall be governed and its corporate powers exercised by the

board of directors of the Massachusetts Department of

Transportation established under chapter 6C"); St. 2015, c. 46,

§§ 199-200 (effective July 17, 2015) ("the control board shall

be afforded all powers, responsibilities and obligations

relative to the authority that are vested in the board, except

as otherwise provided in this act").

2

to show that the MBTA's executive officer received actual notice

of her complaint within two years of her alleged accident.

Discussion. "We review the grant of a motion to dismiss de

novo, accepting as true all well-pleaded facts alleged in the

complaint, drawing all reasonable inferences therefrom in the

plaintiff's favor, and determining whether the allegations

plausibly suggest that the plaintiff is entitled to relief."

Lanier v. President & Fellows of Harvard College, 490 Mass. 37,

43 (2022).

The Massachusetts Tort Claims Act (MTCA) requires that "[a]

civil action shall not be instituted against a public employer

on a claim for damages . . . unless the claimant shall have

first presented his claim in writing to the executive officer of

such public employer within two years after the date upon which

the cause of action arose . . . ." G. L. c. 258, § 4. The MBTA

is a public employer under the MTCA. G. L. c. 258, § 1

(defining "public employer" to include MBTA). At the time the

plaintiff sent her presentment letter, the MTCA defined the

executive officer of the MBTA as "its general manager and rail

and transit administrator." G. L. c. 258, § 1, as amended

through St. 2012, c. 132, § 3 (effective June 29, 2012). 2 "An

2 The MTCA now defines the executive officer of the MBTA as

"its general manager." G. L. c. 258, § 1, as amended through

St. 2024, c. 206, § 16 (effective Sep. 16, 2024).

3

oft-recited proposition is that presentment must be made 'in

strict compliance with the statute.'" Martin v. Commonwealth,

53 Mass. App. Ct. 526, 528 (2002), quoting Weaver v.

Commonwealth, 387 Mass. 43, 47 (1982). The presentment

requirement "ensure[s] that the responsible public official

receives notice of the claim so that the official can

investigate" (citation omitted). Murray v. Hudson, 472 Mass.

376, 384 (2015). "If a sensible construction is available, we

shall not construe a statute to make a nullity of pertinent

provisions or to produce absurd results." Flemings v.

Contributory Retirement Appeal Bd., 431 Mass. 374, 375-376

(2000).

"[U]nder the 'actual notice' exception, the presentment

requirement will be deemed fulfilled if the plaintiff can show

that, despite defective presentment, the designated executive

officer had actual notice of the written claim." Bellanti v.

Boston Pub. Health Comm'n, 70 Mass. App. Ct. 401, 407 (2007).

"Under our precedents, notice to the executive officer will not

be inferred or imputed from the fact that others with

responsibility for investigation and settlement of the dispute

received the plaintiff's presentment letter and were in contact

with the plaintiff." Id. at 408.

When the Legislature defined the MBTA's executive officer

as the "general manager and rail and transit administrator," the

4

acting General Manager also held the title "Rail and Transit

Administrator." See Massachusetts Bay Transportation Authority,

MBTA Announces Appointment of an Acting General Manager (Aug.

22, 2011), https://www.mbta.com/news/2011-08-22/mbta-announces-

appointment-acting-general-manager ("Jonathan Davis will become

the acting MBTA General Manager and MassDOT Rail and Transit

Administrator"); G. L. c. 258, § 1, as amended through St. 2012,

c. 132, § 3 (effective June 29, 2012). Although no person in

the MBTA held the title "general manager and rail and transit

administrator" when the plaintiff presented her claims, Steve

Poftak was, and held the title of, the MBTA General Manager.

See G. L. c. 258, § 1. Because the successor of the General

Manager and Rail and Transit Administrator only held the title

General Manager at the time the plaintiff presented her claims,

the sensible construction of G. L. c. 258, § 1, was to take its

reference to the MBTA's "general manager and rail and transit

administrator" as referring to the "general manager," rather

than allow a change in the precise title from one General

Manager to the next to nullify the Legislature's decision to

define the MBTA's executive officer in G. L. c. 258, § 1. See

Flemings, 431 Mass. at 375-376 ("If a sensible construction is

available, we shall not construe a statute to make a nullity of

5

pertinent provisions or to produce absurd results"). 3 Indeed, as

noted supra, the Legislature later amended G. L. c. 258, § 1, to

define the MBTA's executive officer as "its general manager."

G. L. c. 258, § 1, as amended through St. 2024, c. 206, § 16

(effective Sept. 16, 2024). The plaintiff was therefore

required to present her claims to the MBTA General Manager. See

G. L. c. 258, §§ 1, 4.

While the plaintiff did attempt to comply with the

presentment requirement's intent by sending her presentment

letter to the leadership of the Massachusetts Department of

Transportation and the Fiscal and Management Control Board,

which governed the MBTA at the time, see Murray, 472 Mass. at

384, the fact that the board governing the MBTA is involved in

the "investigation, settlement and defense," G. L. c. 161A,

§ 38, of claims against the MBTA does not satisfy the

3 The fact that the Legislature defined the executive

officer of the MBTA as its "general manager and rail and transit

administrator" in June 2012 and then placed the Department of

Transportation in charge of the MBTA in August 2012, just two

months later, without redefining the executive officer of the

MBTA further supports the conclusion that the Legislature

intended the General Manager, rather than the Secretary of

Transportation, to be the MBTA's executive officer for the

purposes of G. L. c. 258, § 4. See G. L. c. 258, § 1, as

amended through St. 2012, c. 132, § 3 (effective June 29, 2012)

(defining the executive officers of the MBTA as its "general

manager and rail and transit administrator"); G. L. c. 161A,

§ 7, as amended through St. 2012, c. 242, § 9 (effective Aug. 9,

2012) (placing authority to govern the MBTA in "the board of

directors of the Massachusetts Department of Transportation").

6

presentment requirement. See Bellanti, 70 Mass. App. Ct. at 407

(declining to impute notice to executive officer where

presentment was made to others with responsibility for

investigating and settling disputes). See also G. L. c. 161A,

§ 38 ("The board shall have charge of and supervise the

investigation, settlement and defense of all such claims

. . . "). To fulfill the actual notice exception, the plaintiff

therefore would have had to have shown that the General Manager

received actual notice, which, undisputably, she did not do.

Bellanti, supra. Because the plaintiff did not present her

claim to the MBTA General Manager and failed to show that the

MBTA General Manager in fact received actual notice despite

defective presentment, the motion judge correctly allowed the

7

defendant's motion. 4 See G. L. c. 258, § 4. See also Bellanti,

supra.

Judgment affirmed.

By the Court (Blake, C.J.,

Desmond & Singh, JJ. 5),

Clerk

Entered: December 1, 2025.

4 The plaintiff's reliance on G. L. c. 6C, § 18, to argue

that presentment to the Attorney General was proper because of

the Attorney General's statutory role appearing for the

Massachusetts Department of Transportation also fails. G. L.

c. 6C, § 18, explicitly states that " [t]he office of the

attorney general shall appear for the department, its divisions,

departments, agencies and officers, but not including the

Massachusetts Bay Transportation Authority" (emphasis added).

5 The panelists are listed in order of seniority.

8