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25-P-1005 Appeals Court
SHE LING WANG vs. CITY OF CHELSEA & another.1
No. 25-P-1005.
Suffolk. May 8, 2026. - August 18, 2026.
Present: Vuono, Neyman, & Smyth, JJ.
Massachusetts Tort Claims Act. Practice, Civil, Presentment of
claim under Massachusetts Tort Claims Act, Summary
judgment. Consumer Protection Act, Demand letter, Unfair
act or practice. Negligence.
Civil action commenced in the Superior Court Department on August 1, 2022.
The case was heard by Catherine H. Ham, J., on a motion for summary judgment.
John G. Mateus for the plaintiff.
Daniel G. Skrip for the defendants.
NEYMAN, J. In this appeal, we consider whether the
contents of a demand letter, sent pursuant to G. L. c. 93A, § 9,
sufficed to meet the presentment requirements of the
1 Inspectional services department of Chelsea.
2
Massachusetts Tort Claims Act (MTCA), G. L. c. 258, § 4. We
conclude that the letter, which -- among other shortcomings --failed to reference a cause of action under the MTCA, the
factual basis of liability, the legal theory of liability, or
the date of the incident, was insufficient as a matter of law,
and we thus affirm the summary judgment in favor of the
defendants, the city of Chelsea, and its inspectional services
department (collectively, the city).
Background. We view the facts of record in the light most
favorable to the nonmoving party (here, the plaintiff), as
required by the summary judgment standard. See, e.g., Sea
Breeze Estates, LLC v. Jarema, 94 Mass. App. Ct. 210, 215
(2018). The plaintiff, She Ling Wang, owns the subject property
in Chelsea, a six-unit building with residential tenants. On
June 22, 2021, "the property was back flooded by the city's
sewer water, damaging Unit #1 and Unit #2." The following day,
the plaintiff met with city officials from the department of
public works and the inspectional services department at the
property. The plaintiff was advised to remove the subfloor of
the flooded basement area. The plaintiff did so and cleaned the
subfloor with bleach.
Almost one year later, on May 26, 2022, the plaintiff's
attorney sent a letter with the subject line, "M.G.L. ch. 93A
Demand Letter for Violation of the Consumer Protection Act," to
3
the city's legal department. The letter identified the
plaintiff as the owner of the property and stated that "[t]his
is a formal demand letter sent to you pursuant to . . .
Massachusetts General Laws Chapter 93A, § 9 . . . with respect
to a claim against [the city]" for alleged unfair or deceptive
conduct. The letter further stated that the city2 acted in an
unfair and deceptive manner because it "made the process of
working with the [c]ity on damages the [c]ity caused
impossible"; "[u]nfairly, deceptively and illegally made
decisions not based on construction experts recommendations";
failed to "provide reasonable solutions based on expert reports
such as asking to cut the entire basement subfloor"; refused
further contact with the plaintiff; "failed to reimburse for
damages caused for construction expenses"; and committed "unfair
and deceptive acts and practices that contradict what is in the
best interest of building integrity." As discussed below, the
letter did not assert that any flooding was caused by the city's
negligence. Indeed, the letter contained no reference to
flooding or to city sewer pipes.
On August 1, 2022, the plaintiff filed a verified complaint
in the Superior Court alleging the following claims against the
2 Although far from a model of clarity, the letter attributed some of the alleged unfair or deceptive conduct to the director of the city inspectional department and the city manager.
4
city: (1) negligence, (2) intentional infliction of emotional
distress, (3) negligent infliction of emotional distress, (4)
malfeasance, (5) violation of c. 93A, and (6) punitive damages.3
On September 12, 2022, the city filed a motion to dismiss the
complaint. On July 27, 2023, a Superior Court judge (first
judge) allowed the motion as to claims two through six.
Furthermore, the first judge limited the negligence claim (count
1) to allegations that the city "fail[ed] to properly maintain
the sewer pipes."4 The plaintiff does not challenge the first
judge's ruling in this appeal.
On September 5, 2023, the city filed its answer and raised
defective presentment as an affirmative defense.5 On August 5,
2024, the city filed a motion for summary judgment based on the
plaintiff's failure to satisfy the written presentment
requirement of the MTCA. Following a hearing, a different
3 On August 12, 2022, the plaintiff served a verified complaint on the city, which contained some different allegations than the complaint filed in the Superior Court.
4 As to the negligence claim, the first judge stated, "[i]n so much that plaintiff . . . claims that the [c]ity was negligent for anything beyond failing to properly maintain the sewer pipes, [the city's] motion is Allowed."
5 The city's eighth affirmative defense states, in relevant part, "the Plaintiff failed to fulfill the requirements of . . . G. L. c. 258, § 4, in that he failed to provide timely and sufficient presentment."
5
Superior Court judge (second judge) allowed the motion and
summary judgment entered for the city. This appeal ensued.
Discussion. We review a grant of summary judgment de novo
to determine whether, viewing the evidence in the light most
favorable to the nonmoving party, "all material facts have been
established and the moving party is entitled to judgment as a
matter of law." Casseus v. Eastern Bus Co., 478 Mass. 786, 792
(2018). Here, the material facts are not in dispute.
Accordingly, the sole issue before us is whether the content of
the plaintiff's c. 93A demand letter met the presentment
requirements of G. L. c. 258, § 4, for the tort claims the
plaintiff asserted.
General Laws c. 258, § 4, states, in relevant part,
"A civil action shall not be instituted against a public
employer on a claim for damages under this chapter 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 . . . ."
The statute further provides that "in the case of a city or
town, presentment of a claim pursuant to this section shall be
deemed sufficient if presented to any of the following: mayor,
city manager, town manager, corporation counsel, city solicitor,
town counsel . . . ." Id. Thus, there are three elements to
the presentment requirement: (1) written notification of the
claim; (2) presented within two years; and (3) presented to one
6
of the delineated executive officials of the public employer.
See id. There is no dispute that the May 26, 2022, demand
letter was timely, and that it was presented to an appropriate
executive officer of the public employer, here legal counsel to
the city. Thus, we focus our analysis on the adequacy of the
letter's content.
Chapter 258, § 4, does not articulate the specific content
requirements of a presentment letter. The Supreme Judicial
Court, however, has clarified that "a presentment letter should
be precise in identifying the legal basis of a plaintiff's
claim" and should not be "so obscure that educated public
officials should find themselves baffled or misled with respect
to [the plaintiff's] assertion of a claim . . . which
constitutes a proper subject for suit within G. L. c. 258."
Gilmore v. Commonwealth, 417 Mass. 718, 723 (1994). "The
Gilmore test seeks to strike an appropriate balance between
precision and lack of obscurity so as to satisfy the purposes
behind the presentment provision: affording the executive
officer the opportunity to investigate the circumstances of each
claim, settle, and take preventive measures." Martin v.
Commonwealth, 53 Mass. App. Ct. 526, 529 (2002), citing Gilmore,
supra at 721-722. The Supreme Judicial Court has also stated
that presentment must be made "in strict compliance with the
statute." Gilmore, supra at 721, quoting Weaver v.
7
Commonwealth, 387 Mass. 43, 47 (1982). The strict compliance
"precept," however, is "concerned more with whether presentment
has been made to the proper executive officer . . . in a timely
fashion . . . than with the content of the presentment."
Martin, supra.
Applying these principles to the present case, we hold that
the c. 93A demand letter failed to satisfy the presentment
requirements of c. 258, § 4, for the following reasons. First,
the letter contains no reference to the factual basis of
liability. Indeed, there is no reference to the sewer pipes,
the incident at issue, or the city's alleged failure to maintain
the sewer pipes.6 Contrast Martin, 53 Mass. App. Ct. at 530
(although "not a model of particularity," presentment letter
"identifies precisely and unequivocally the factual basis of the
claims: ingestion of lead paint by the children as a result of
the negligence of the Commonwealth's agent").7
6 As discussed supra, the first judge limited the negligence claim to allegations that the city "fail[ed] to properly maintain the sewer pipes."
7 Unlike the purported presentment letter, the complaint alleges that "street storm drains and city drains were incorrectly connected," and further alleges negligence and facts relating to causation, albeit in a confusing manner. The absence of these allegations from the letter bolsters our conclusion that the plaintiff failed to provide adequate notice of the forthcoming MTCA claim.
8
Second, the letter contains no reference to the legal basis
or theory of liability. See Gilmore, 417 Mass. at 723
(presentment letter should be "precise in identifying the legal
basis of a plaintiff's claim"). The letter does not even
contain the word "negligence" and does not assert that the
plaintiff's damages were caused by the city's negligence. See
Rodriguez v. Somerville, 472 Mass. 1008, 1011 (2015)
(presentment letter inadequate because it failed to identify
legal basis for claim against city). Contrast Martin, 53 Mass.
App. Ct. at 532 ("the letter, which specifically identified a
legal basis, all theories of liability for which were premised
upon the same facts, constituted an adequate presentment").
Furthermore, the subject line and content of the letter claimed
that the city was liable on a different legal basis -- c. 93A --for actions other than and subsequent to the failure to properly
maintain the sewer pipes. Far from being "precise in
identifying the legal basis" of the plaintiff's present claim,
the letter cannot fairly be read as stating claims for
negligence stemming from the failure to maintain the sewer
pipes. Gilmore, supra. See Garcia v. Essex County Sheriff's
Dep't, 65 Mass. App. Ct. 104, 110 (2005) (plaintiff's letters
"lend themselves to confusion regarding the basis for the claim"
and "are thus inadequate to fulfil the statutory purpose of the
presentment requirement").
9
Third, the letter contains no reference to c. 258 or the
MTCA. While citation to the statute is not a prerequisite to a
proper presentment, its absence here, in combination with the
aforementioned shortcomings, bolsters our conclusion. See
Garcia, 65 Mass. App. Ct. at 110 (plaintiff's letters inadequate
to meet presentment requirements where, inter alia, they did not
"identify G. L. c. 258 as a basis of liability"). Contrast
Gilmore, 417 Mass. at 723 (although "close" call, presentment
letter adequate to satisfy requirements of c. 258 where letter
referenced and enclosed nineteen-page complaint in Federal
lawsuit setting forth entire factual basis underlying claim).
Finally, the letter contains no reference to the date of
the incident or date of injury. The combination of these
deficiencies compels the conclusion that the demand letter was
inadequate to fulfill the statutory purpose of the presentment
requirement. Indeed, we are aware of no case, nor have the
parties cited any, where a purported presentment letter failed
to reference the cause of action, the factual basis of
liability, the legal basis or theory of liability, and the date
of the incident, yet was still considered an adequate
presentment within the meaning of G. L. c. 258, § 4.8 Under
8 Although the letter states that the city failed to "reimburse for damages caused for construction expenses," it does not reference the failure to maintain the sewer pipes,
10
these circumstances, summary judgment was properly allowed.9
Judgment affirmed.
dates, the cause of action, the theory of liability, or the legal basis of liability. Such general, undated, and unspecified language does not satisfy the particularity required by our case law. See Gilmore, 417 Mass. at 723. Contrast Martin, 53 Mass. App. Ct. at 530, 532.
9 We are not persuaded by the plaintiff's attempt to invoke the "lulling exception" to the presentment requirement. The city timely asserted defective presentment as an affirmative defense, and the plaintiff points to no evidence in the record to support this claim. See Rodriguez, 472 Mass. at 1010 n.3 (rejecting plaintiff's claim that city had waived presentment requirement in view of city's raising defective presentment as affirmative defense and thus putting plaintiff on notice thereof); Garcia, 65 Mass. App. Ct. at 111 (lulling requires that defendant "affirmatively indicate that the presentment requirement has been met or is waived" and evidence did not support such conclusion).