United States District Court, Southern District of New York
August 30, 1990
H. SAND & CO., INC., PLAINTIFF,
AIRTEMP CORPORATION, DEFENDANT.
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).
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
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 it
initiated litigation in December 1982, which falls
within the four year statute of limitation imposed
by the U.C.C.
738 F. Supp. at 765-66 (emphasis ours).
The exhibits were before us prior to the issuance of the
May 30 Opinion, and they were all thoroughly considered,
explicitly or implicitly, when we made our final
determination in the May 30 Opinion. We did not overlook or
ignore the exhibits; we rejected plaintiff's argument based
on those and other exhibits and supporting documents. Indeed,
we would not have been able to recite the above-cited passage
had we not considered the exhibits.
Assuming, arguendo, that we did fail to consider exhibits 3,
4 and 5 in our determination of the original motions, a review
of those exhibits does not lead us to alter our original
finding that the four chillers were delivered, and the statute
of limitations commenced running, by March, 1978.
Plaintiff's second argument in its moving papers, claiming
that defendant failed to establish a genuine issue of
material fact, is introduced as follows: "[a]s we explained
in our memorandum originally submitted in opposition to
defendant's motion for summary judgment. . . ." (Plaintiff's
Memo, 8) "A request for reargument is not an occasion to
reassert arguments previously raised, but dismissed by the
court." Bozsi Ltd. Partnership v. Lynott, 676 F. Supp. 505, 509
(S.D.N.Y. 1987) (quoting Morgan Guar. Trust Co. of New York v.
Garrett Corp., 625 F. Supp. 752, 756 (S.D.N.Y. 1986), aff'd,
875 F.2d 307 (2d Cir. 1989)). See also Rosen v. Dick, 83 F.R.D.
540, 544 (S.D.N.Y. 1979), modified on other grounds,
639 F.2d 82 (2d Cir. 1980). Thus, since plaintiff's second argument was
asserted and dismissed in the May 30 Opinion, and since
plaintiff introduces no factual matters or controlling
decisions that we overlooked in considering the argument the
first time, plaintiff cannot reassert that argument on a motion
Similarly, plaintiff reasserts a third argument, claiming
that summary judgment should have been denied because certain
accessories were not delivered with the chillers by March,
1978. (Plaintiff's Memo, 12-13) Plaintiff made the same
argument in its original papers; we rejected that argument in
the May 30 Opinion. 738 F. Supp. at 766, n. 4 and accompanying
text. Again plaintiff offers no factual matters or
controlling decisions which we may have overlooked on this
issue. Thus, the strict standards governing motions for
reargument preclude plaintiff from reasserting the same
argument in the present motion.
All the contentions raised by plaintiff in its motion for
reargument are reassertions of arguments previously made
which we considered and rejected in the May 30 Opinion;
plaintiff has shown us no reason why we should reconsider
In its moving papers, plaintiff has critiqued various
portions of the Opinion, rephrased its arguments, bolstered
the weak portions of its presentation, and reintroduced
exhibits that we had considered in our disposition of the
original motions. Plaintiff does not make any attempt at all
to show new controlling law or factual matters, but merely
engages in a legal re-argument on the merits of the precise
claims that we decided in the May 30 Opinion. See Weissman v.
Fruchtman, 124 F.R.D. 559, 560 (S.D.N.Y. 1989).
Plaintiff does not introduce any matters or controlling
decisions in its motion for reargument that would require us
to modify the May 30 Opinion. Additionally, and glaringly,
plaintiff does not cite any authority for its assertion that
its motion for reargument is proper in this instance. We
conclude that it is not. Accordingly, we are constrained to,
and do, deny plaintiff's motion for reargument of this
Court's May 30 Opinion.
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