The opinion of the court was delivered by: Irving Ben Cooper, District Judge.
Defendant moved for summary judgment, pursuant to
Fed.R.Civ.P. 56(b), dismissing plaintiff's amended complaint.
Plaintiff opposed defendant's motion; additionally, plaintiff
moved for partial summary judgment pursuant to Fed.R.Civ.P.
56(a). In an opinion dated May 30, 1990, we granted
defendant's motion for summary judgment and dismissed as moot
plaintiff's motion for partial summary judgment. H. Sand & Co.,
Inc. v. Airtemp Corp., 738 F. Supp. 760 (S.D.N.Y. 1990) ("the
May 30 Opinion"). Plaintiff timely moved for reargument of the
May 30 Opinion pursuant to Rule 3(j) of the Civil Rules for the
United States District Courts for the Southern and Eastern
Districts of New York ("Local Rule 3(j)"). Defendant opposes
The facts of this case are set forth at length in the May
30 Opinion; familiarity with them is assumed.
Local Rule 3(j) provides, in pertinent part, that "[t]here
shall be served with the notice of motion [for reargument] a
memorandum setting forth concisely the matters or controlling
decisions which counsel believes the court has
overlooked." (emphasis ours).
The standards governing motions for reargument are well
established: they are to be granted only under limited
circumstances. The "only proper ground on which a party may
move to reargue an unambiguous order is that the court
overlooked `matters or controlling decisions' which, had they
been considered, might reasonably have altered the result
reached by the court." Brignoli v. Balch Hardy & Scheinman,
Inc., 735 F. Supp. 100, 101 (S.D.N.Y. 1990) (quoting Adams v.
United States, 686 F. Supp. 417, 418 (S.D.N.Y. 1988)).
"Alternatively, the moving party may establish that the court
failed to consider `factual matters that were put before the
court on the underlying motion.'" The Travelers Ins. Co. v.
Buffalo Reinsurance Co., 739 F. Supp. 209, 211 (S.D.N.Y. 1990)
(quoting Ashley Meadows Farm, Inc. v. American Horse Shows
Ass'n, Inc., 624 F. Supp. 856, 857 (S.D.N.Y. 1985). See also
Suggs v. Capital Cities/ABC, Inc., 122 F.R.D. 430, 432
(S.D.N.Y. 1988). "The standard for granting a motion for
reargument is strict in order to dissuade repetitive arguments
on issues that have already been considered fully by the
Court." Ruiz v. Commissioner of D.O.T. of City of New
York, 687 F. Supp. 888, 890 (S.D.N.Y.), aff'd, 858 F.2d 898 (2d
Cir. 1988); B.A.M. Brokerage Corp. v. New York, 724 F. Supp. 146,
147 (S.D.N.Y. 1989); Caleb & Co. v. E.I. DuPont De Nemours
& Co., 624 F. Supp. 747, 748 (S.D.N.Y. 1985). "Motions for
reargument will be granted only if the Court overlooked
`matters or controlling decisions' which, if considered by the
Court, would have mandated a different result." Durant v.
Traditional Investments Ltd., 1990 U.S. Dist. LEXIS 4768
(S.D.N.Y. April 25, 1990). See also, Ruiz, 687 F. Supp. at 890;
Caleb, 624 F. Supp. at 748; Northberry Concrete Corp. v. The
Hartford Ins. Group, 1990 WL 139638, 1990 U.S. Dist. Lexis 6840
(S.D.N.Y. June 6, 1990).
In its memorandum in support of its motion for reargument,
plaintiff does not claim that we overlooked any controlling
decisions in arriving at our conclusion; indeed, plaintiff
does not make any attempt to introduce any new controlling
law. Plaintiff relies on one case to support its first
argument that the fourth refrigeration unit ("Chiller 4") was
not delivered until January, 1979. However, we addressed that
case, City of New York v. Pullman, Inc., 662 F.2d 910 (2d Cir.
1981), in detail in the May 30 Opinion. 738 F. Supp. at 766-69.
Also in the May 30 Opinion, we comprehensively discussed and
rejected plaintiff's contention as to when Chiller 4 was
delivered, for that same argument, which was raised in the
supporting papers to plaintiff's motion for reargument, was
also raised in plaintiff's memorandum submitted in opposition
to defendant's motion for summary judgment. Id. at 765-66.
We conclude we cannot grant plaintiff's motion for
reargument on "controlling decisions" grounds for the simple
reason that no new "controlling decisions" were introduced.
Plaintiff asserts "that the Court misunderstood the nature
of the March 31, 1978 shipment of Chiller 4." (Plaintiff's
Memorandum In Support of Motion For Reargument, 1
("Plaintiff's Memo")) Plaintiff maintains that this Court
"ignore[d] substantial unrefuted evidence submitted by the
plaintiff" (Id. at 3), and specifically directs our attention
to Exhibits 3, 4, and 5 ("the exhibits") to the Affidavit of
Stuart J. Moskovitz In Opposition To Motion By Defendant
("Moskovitz Affidavit") as the evidence that we overlooked
when considering the disposition of the earlier motions.
We set out plaintiff's position regarding the delivery of
Chiller 4 in our statute of limitations discussion in the May
Sand's first contention is based upon the
undisputed fact that the four chillers were
shipped to its agent Associated between January
and March 1978, yet chiller # 4 was returned to
Airtemp in November 1978 because defendant did not
conduct a test run of the chiller prior to shipping
it. Chiller # 4 was shipped to Sand in January 1979
after it was tested. Thus, plaintiff avers, "tender
of delivery" occurred in January 1979. As a result,
Sand's cause of action would be saved since ...