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H. SAND & CO., INC. v. AIRTEMP CORP.

August 30, 1990

H. SAND & CO., INC., PLAINTIFF,
v.
AIRTEMP CORPORATION, DEFENDANT.



The opinion of the court was delivered by: Irving Ben Cooper, District Judge.

MEMORANDUM

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 motion.

The facts of this case are set forth at length in the May 30 Opinion; familiarity with them is assumed.

DISCUSSION

Reargument

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).

1. Controlling Decisions

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.

2. Factual Matters

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 30 Opinion:

    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 ...

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