YARI JUSINO v. MASSACHUSETTS CHIROPRACTIC CENTER, LLC, & Another.

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-369

YARI JUSINO

vs.

MASSACHUSETTS CHIROPRACTIC CENTER, LLC, & another. 1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, Yari Jusino, appeals from a summary judgment

entered by a judge of the Boston Municipal Court in favor of the

defendants Massachusetts Chiropractic Center, LLC (MCC), and

Boris Sapozhnikov. 2 The plaintiff argues that genuine issues of

material fact exist as to whether a check dated June 7, 2019,

that the defendants tendered to her represented the full amount

of damages they owed her under the Wage Act, G. L. c. 149,

§§ 148, 150. Having carefully reviewed the record before us, we

discern no such genuine issue of material fact. The plaintiff

1 Boris Sapozhnikov.

2 MCC is defunct and has not filed a brief.
further argues that she is entitled to attorney's fees under the

test adopted in Ferman v. Sturgis Cleaners, Inc., 481 Mass. 488,

496 (2019), a question not decided below. We remand only for a

determination whether the filing of the complaint was the

catalyst for the defendants' tendering the June 7 check to the

plaintiff, and thus the plaintiff was the prevailing party in

the Wage Act action within the meaning of G. L. c. 149, § 150;

we otherwise affirm the judgment.

Background. These facts are not in dispute. In early

2019, MMC was a chiropractic practice in Boston. Sapozhnikov

was its manager and was solely responsible for payroll

obligations. The plaintiff worked at MMC as a patient care

coordinator.

Beginning on April 8, 2019, Sapozhnikov was hospitalized

for several weeks and underwent quadruple bypass heart surgery

on April 17. Because of his medical condition, MCC did not

timely pay the plaintiff for the pay period ending on April 19.

On April 23, 2019, the plaintiff resigned from employment

with MCC. Under the Wage Act, MCC was required to pay her "in

full on the following regular pay day." 3 G. L. c. 149, § 148.

3 The summary judgment record does not reveal what date
after April 23, 2019, was the "following regular pay day," but
the defendants concede that they did not pay the plaintiff the
wages they owed her by that date.

2
Also on April 23, MCC ceased operations. In late April, the

plaintiff sent Sapozhnikov multiple text messages asking when

she would receive her outstanding wages.

On May 9, 2019, the plaintiff filed in the Boston Municipal

Court a complaint against both MCC and Sapozhnikov for

violations of the Wage Act, and against MCC for breach of

contract and unjust enrichment. The complaint alleged that

"[t]o date, MCC owes [the plaintiff] approximately $1,410 in

unpaid wages," and sought "[t]reble damages, interest,

reasonable attorneys' fees, and costs pursuant to . . . G. L.

c. 149, § 150."

The next day, May 10, 2019, the plaintiff sent an e-mail

message to Sapozhnikov. She made no mention of the complaint,

but stated:

"I am reaching out to you as I would like an update. Again
this is not fair I have to send several messages regarding
my wages. I am owed for both [MCC] and Union. I worked a
total of 94 hours between the two clinic[s] that I have not
been paid for. The total amount due is $1,410. I
understand you went through surgery but it seems to [m]e I
am being avoided and I don't understand why. Please if you
can pay me my wages I would really appreciate it. You now
have me behind on my bills especially I am now without a
job so suddenly."

On June 7, 2019, the defendants issued a check to the

plaintiff in the net amount of $902.47, after withholdings from

gross wages of $1,586. The plaintiff received the check. Bank

3
records show that the check was cashed on June 24, and the back

of the check was endorsed with the plaintiff's signature. 4

The defendants filed a motion for summary judgment,

supported by a memorandum of law, an affidavit of Sapozhnikov,

and exhibits, arguing that by the June 7 check they had already

paid the plaintiff more than the outstanding wages and treble

damages to which she was entitled under the Wage Act. In

opposition, the plaintiff submitted an affidavit averring that

"[t]o date, I have not received the funds from the check dated

June 7." A judge held a hearing, of which no transcript is

included in the appellate record.

A few days later, the plaintiff filed a supplemental

affidavit averring, "I do not recall ever cashing the check

dated June 7," and, "[t]o date, I am informed and believe I have

not received the funds from the check dated June 7." The judge

allowed the motion for summary judgment in favor of the

defendants. The plaintiff moved for reconsideration, which the

judge denied in a memorandum in which he concluded that the

plaintiff's assertions that she had not cashed the June 7 check

were "implausible and not credible," and that the defendants had

"issued a treble wages payment to the plaintiff in June 2019"

4 Bank records show that the check bounced on June 20 and
then was cashed on June 24.

4
and thus "complied with the liquidated damages clause of the

Wage Act."

The plaintiff appealed to the Appellate Division, which

concluded that in the June 7 check the plaintiff had "received

payment for wages earned plus treble damages," and affirmed the

allowance of summary judgment in favor of the defendants. The

plaintiff now appeals to this court.

Discussion. We review de novo a ruling on summary judgment

to determine if "there is no genuine issue as to any material

fact" and the moving parties are "entitled to a judgment as a

matter of law." Mass. R. Civ. P. 56 (c), as amended, 436 Mass.

1404 (2002). See Nunez v. Syncsort Inc., 496 Mass. 706, 709

(2025). In examining the summary judgment record, we "view[]

the evidence in the light most favorable to the nonmoving or

opposing party," here, the plaintiff. Jinks v. Credico (USA)

LLC, 488 Mass. 691, 704 (2021). Because the plaintiff would

have the burden of proof at trial, the defendants are "'entitled

to summary judgment if [they] demonstrate[], by reference to

material described in Mass. R. Civ. P. 56(c), unmet by

countervailing materials, that the [plaintiff] has no reasonable

expectation of proving an essential element of [her] case.'"

Id., quoting Kourouvacilis v. General Motors Corp., 410 Mass.

706, 716 (1991). "In reviewing a motion for summary judgment,

an appellate court is confined to an examination of the

5
materials before the [trial] court at the time the rulings were

made" (quotation and citations omitted). Stone v. Zoning Bd. of

Appeals of Northborough, 496 Mass. 366, 379 (2025). "Thus, it

is important on appeal, just as it was before the [Boston

Municipal] Court judge, that the parties provide an appropriate

and accurate record reference for each and every fact set forth

in the brief" (quotation and citations omitted). Jinks, supra

at 705.

1. June 7 check. The plaintiff argues that summary

judgment was inappropriate because genuine disputes of material

fact exist as to whether she cashed the June 7 check and whether

its amount accurately reflected the wages and treble damages the

defendants owed her under the Wage Act, G. L. c. 149, § 150.

See Reuter v. Methuen, 489 Mass. 465, 469-470 (2022).

a. Receipt and cashing of check. The plaintiff argues

that a dispute of fact exists as to whether "the [d]efendants

made the [June 7] check funds available to [her]." However, in

her first affidavit opposing summary judgment, the plaintiff

acknowledged that she received the check "on or around June 7,"

and she concedes in her brief that "it appears someone did . . .

negotiate the check." Based on those concessions, her claim

fails. The Wage Act requires the employer only to pay the

6
employee; it does not impose any responsibility on the employer

for what the employee does with the check. 5

The plaintiff did not demonstrate a genuine issue of

material fact with her affidavit averring, "I am informed and

believe I have not received the funds from the check dated June

7." "Because it is not based on personal knowledge, the

statement in the affidavit is not admissible evidence." Ortiz

v. Morris, 97 Mass. App. Ct. 358, 364-365 (2020). "Conclusory

statements, general denials, and factual allegations not based

on personal knowledge [are] insufficient to avoid summary

judgment" (citation omitted). Madsen v. Erwin, 395 Mass. 715,

721 (1985). See Matter of the Estate of Urban, 102 Mass. App.

Ct. 284, 297 & n.15 (2023).

We conclude that the summary judgment record shows that the

plaintiff had no reasonable expectation of proving at trial that

she did not receive the June 7 check.

b. Rate of pay. A June 2019 payroll record of MCC

associated with the June 7 check and the affidavit of

5In his memorandum of decision, the judge noted that at the
summary judgment hearing the plaintiff asserted that she may
have dropped the check and someone else picked it up and cashed
it. However, the plaintiff did not allege those facts in an
affidavit as required by Mass. R. Civ. P. 56 (e), 365 Mass. 824
(1974), and so they were "ineligible for consideration in a Rule
56 motion" (quotation and citations omitted). Bardige v.
Performance Specialists, Inc., 74 Mass. App. Ct. 99, 103 (2009).

7
Sapozhnikov document that the plaintiff's hourly rate of pay was

thirteen dollars. In contrast, in her supplemental affidavit

dated March 21, 2024, filed after the summary judgment hearing,

the plaintiff averred that her hourly rate was fifteen dollars.

We conclude that the plaintiff did not create a genuine dispute

of fact with that affidavit, dated nearly five years after she

left MCC's employ, claiming a different rate of pay than that in

its records. See Cannata v. Berkshire Natural Resources

Council, Inc., 73 Mass. App. Ct. 789, 792 (2009) ("the opposing

party cannot rest on his or her pleadings and mere assertions of

disputed facts to defeat the motion for summary judgment"

[citation omitted]). See also Knous v. Broadridge Fin.

Solutions, Inc., 991 F.3d 344, 346-347 (1st Cir. 2021) (summary

judgment for employer on Wage Act claim proper; no dispute as to

May 24 date of discharge based on employee's averment that,

though employer paid him through that date, it terminated his

employment on May 17 when manager told him he was being "let go

immediately").

c. Number of hours worked. In denying the plaintiff's

motion for reconsideration of the summary judgment, the judge

concluded that "the defendants paid the plaintiff the damages

she is entitled to under the Wage Act." Implicit in that

conclusion is a finding that the defendants paid the plaintiff

for the number of hours she worked for MCC.

8
MCC's payroll records document that MCC owed the plaintiff

wages for working 75.5 hours between March 25 and April 22,

2019. In contrast, the plaintiff averred that she "worked

approximately 94 hours for which I was not compensated."

However, the plaintiff's own documentation of those ninety-four

hours included three dates (April 9, 11, and 16, 2019) that she

said she worked for an entity she referred to as "Union." MCC's

payroll records do not reflect that the plaintiff worked for MCC

on any of those three dates. The plaintiff's complaint does not

mention any entity called "Union," nor name it as a defendant.

In those circumstances, we discern no genuine dispute of

material fact as to the number of hours the plaintiff worked for

MCC. See Cannata, 73 Mass. App. Ct. at 792; Knous, 991 F.3d at

346-347.

d. Late wages and treble damages. Both the judge and the

Appellate Division concluded that the amount of the June 7 check

included both wages and treble damages under the Wage Act, G. L.

c. 149, § 150. The plaintiff argues that a dispute of fact

exists as to whether the June 7 check included treble damages,

but has not provided us with the complete summary judgment

record that was before the judge and the Appellate Division

9
showing how the defendants calculated the damages they owed to

the plaintiff under the Wage Act. 6

Our own review of the summary judgment materials reveals

that the defendants calculated the wages they owed to the

plaintiff as $481.50. 7 Treble that amount is $1,444.50. Thus,

the June 7 check for $1,586 in gross wages was more than the

treble damages amount.

The plaintiff further argues that the Wage Act precludes

the defendants from asserting as a defense that by tendering the

June 7 check, they paid her what they owed her. Section 150

provides that "[o]n the trial [of a Wage Act claim] . . . [t]he

defendant shall not set up as a defence a payment of wages after

the bringing of the complaint." G. L. c. 149, § 150. That

section further provides that a plaintiff in a Wage Act action

"shall be awarded treble damages, as liquidated damages, for any

lost wages." G. L. c. 149, § 150. The weakness in the

plaintiff's argument is that the June 7 check compensated her

6 As appellant, it was the plaintiff's duty to provide us
with copies from the trial court record of the rule 56(c)
materials that the defendants submitted in support of their
motion for summary judgment. See Mass. R. A. P. 18 (a), as
appearing in 481 Mass. 1637 (2019).

7 That amount was based on 75.5 hours at the thirteen-dollar
hourly rate, less $500 that the defendants had paid the
plaintiff in a cash advance on April 3, 2019. At oral argument,
the plaintiff represented through counsel that she did not
dispute that $500 cash advance.

10
for not only the "payment of wages" that the defendants owed

her, but also for "treble damages," G. L. c. 149, § 150.

Contrast Reuter, 489 Mass. at 473 (employer's tender of trebled

interest, but not trebled late vacation pay, did not satisfy

§ 150). The plaintiff would have us interpret § 150 to mean

that, no matter what amount the defendants paid her, they could

not raise that payment as a defense.

No genuine issue of material fact exists as to whether the

defendants paid the plaintiff her outstanding wages and treble

damages under the Wage Act.

2. Breach of contract and unjust enrichment. The

plaintiff argues that MCC was not entitled to summary judgment

on her claims for breach of contract and unjust enrichment. As

we have concluded that no genuine issue of material fact exists

as to whether the June 7 check fulfilled the defendants'

obligation under the Wage Act, we likewise conclude that the

June 7 check precludes their liability on the breach of contract

and unjust enrichment claims. See Columbia Plaza Assocs. v.

Northeastern Univ., 493 Mass. 570, 588-589 (2024) ("Unjust

enrichment is the retention of money or property of another

against the fundamental principles of justice or equity and good

conscience" [quotation and citation omitted]).

3. Attorney's fees. The plaintiff argues that she is

entitled to attorney's fees under the Wage Act. In response,

11
Sapozhnikov argues that an award of attorney's fees to the

plaintiff would not be "reasonable" within the meaning of G. L.

c. 149, § 150, because of the extenuating circumstances of

Sapozhnikov's health crisis. We are not persuaded by

Sapozhnikov's response. As to liquidated damages, including

treble damages for lost wages, the Wage Act imposes "strict

liability" on an employer, "without regard to the employer's

intent." See Reuter, 489 Mass. at 470-471. Accordingly, we

turn to our own de novo review of the Wage Act as it pertains to

payment of attorney's fees.

The Wage Act provides that "[a]n employee . . . who

prevails" in a civil action for a violation of the Wage Act

"shall . . . be awarded the costs of the litigation and

reasonable attorneys' fees." G. L. c. 149, § 150. In Ferman,

481 Mass. at 496, the Supreme Judicial Court adopted the

catalyst test for determining whether a plaintiff is considered

to have "prevail[ed]" in a Wage Act action and is therefore

entitled to attorney's fees. In that case, after nearly two

years of litigation, the parties settled the plaintiffs' claims

for regular and overtime wages, but reserved to the judge the

question whether the plaintiffs were entitled to attorney's fees

under the Wage Act. Id. at 489-490. Applying the catalyst

test, the judge ruled that the plaintiffs were entitled to

attorney's fees because the settlement yielded approximately

12
seventy percent of the damages they had sought in their

complaint, and constituted "a practical benefit as a result of

their attorneys' efforts." Id. at 491. In affirming the award,

the Supreme Judicial Court set forth the catalyst test as

follows:

"[A] plaintiff prevails for purposes of an award of
attorney's fees under the Wage Act when his or her suit
satisfies the catalyst test by acting as a necessary and
important factor in causing the defendant[s] to provide a
material portion of the relief demanded in the plaintiff's
complaint."

Id. at 496. Quoting that language from Ferman, the plaintiff

argues that because the June 7 check included "'a material

portion' of her treble damages after the filing of her

[c]omplaint, it follows that the filing of her [c]omplaint was a

necessary and important factor in causing that payment." We are

not persuaded, because temporal proximity alone does not prove

that one event caused the other. See Osborne-Trussell v.

Children's Hosp. Corp., 488 Mass. 248, 264 n.17 (2021).

From the record before us, it does not appear that either

the judge or the Appellate Division addressed the question

whether the filing of the complaint was a necessary and

important factor in causing the defendants to issue the June 7

check, which would make the plaintiff the prevailing party for

the purposes of an award of attorney's fees under G. L. c. 149,

§ 150. On the record before us, we cannot make that

13
determination in the first instance. The plaintiff's e-mail

message to Sapozhnikov on May 10, 2019, the day after the

complaint was filed, did not mention the complaint. The Boston

Municipal Court docket reflects that MCC was served with the

Wage Act complaint on June 20, 2019, and Sapozhnikov was served

in August 2019. At oral argument, the plaintiff could point to

no evidence in the summary judgment record to show that when the

defendants tendered the June 7 check, they knew about the

complaint. Thus, from this record, it is unclear whether the

catalyst for the issuance of the June 7 check was the Wage Act

action, Sapozhnikov's recovery from surgery, the plaintiff's

e-mail and text messages, or some combination of those factors.

Contrast Ferman, 481 Mass. at 491 (catalyst test satisfied where

judge found that attorneys' efforts resulted in settlement). We

therefore remand to the trial court the question whether the

Wage Act action was "a necessary and important factor in

causing" the defendants to pay the plaintiff her outstanding

wages and treble damages. Id. at 496. Cf. Reuter, 489 Mass. at

475-476 (remanding for determination whether plaintiff was

prevailing party on so much of claim for attorney's fees as

expended in unsuccessful attempts to certify class). 8

8 The plaintiff's request for appellate attorney's fees is
denied.

14
4. Conclusion. So much of the judgment as denied the

plaintiff attorney's fees is vacated. We remand the matter for

reconsideration of attorney's fees consistent with this

memorandum and order. The judgment is otherwise affirmed.

So ordered.

By the Court (Blake, C.J.,
Neyman & Grant, JJ. 9),

Clerk

Entered: January 14, 2026.

9 The panelists are listed in order of seniority.

15