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October 17, 1991


The opinion of the court was delivered by: Glasser, District Judge:


On July 15, 1991 this court by Memorandum and Order granted defendant's motion for summary judgment dismissing the complaint, and on July 22, 1991 a final judgment was entered. Plaintiff now moves under Rules 52(b) and 59(e), Fed.R.Civ.P., "to set aside and vacate the fact-findings set forth in the Memorandum and Order"; under Rules 60(b)(1), (2), (3), and (6) to set aside and vacate the final judgment; and under Rule 3(j), Local Rules of the United States District Courts for the Southern and Eastern Districts of New York, for reargument of the summary judgment motion. The grounds he alleges are (1) that plaintiff has presented new facts which were not previously set forth; (2) that the omissions were in error but were excusable; and (3) that defendant has misrepresented critical facts to the court in its papers.

The New Affidavits

Plaintiff filed two affidavits in support of the Rule 52(b), 59(e), and 60(b) motions, the second revising the first. Defendants filed a responsive affidavit. Under Local Rule 3(j), affidavits may not be filed without leave of the court, and following a request by plaintiff I explicitly denied leave by written order on July 22, 1991. As set forth below, the affidavits shall be disregarded in connection with that motion. Their contents is described herein for such application as they have to the other motions.

Familiarity with the July 15, 1991 Memorandum and Order here is presumed. By way of summary, however, the undisputed facts presented to the court with the motion for summary judgment were that plaintiff, a successful surgeon in private practice held, in addition to full attending privileges at Lutheran Medical Center ("LMC" or "the Hospital"), the part-time $30,000 per year position of Chief of Ambulatory Surgery at a community clinic run by LMC. Prior to 1986, LMC recruited new doctors through a teaching residency program, many of whom stayed in the community and provided treatment to its patients. In 1986, however, LMC lost its residency program, and, by virtue at least of its location, realized difficulty in attracting new doctors. As a recruiting device, LMC dissolved the position of Chief of Ambulatory Surgery and created in its place three new part-time clinic staff positions paying $10,000 per year. Their hope was that the $10,000 salary would be attractive to new doctors establishing private practices and might encourage some who might not otherwise have considered it to settle in the vicinity. Reference was made in a draft internal Hospital memorandum to the need of a mechanism for attracting "young" surgeons, and a similar reference was made in a letter written by the Hospital's director of surgery. Plaintiff was terminated and the three positions were filled by doctors aged 38, 40, and 42 who were known to plaintiff through their prior affiliation with LMC and who at the time enjoyed attending privileges at the Hospital.*fn1 Summary judgment was granted defendant because plaintiff offered no evidence in rebuttal of its nondiscriminatory rationale for the dissolution of plaintiff's position.

The basis of plaintiff's current motions is that, born and raised in India, his English language skills are poor and he had difficulty communicating his ideas to his attorney. Had he "underst[ood] the nature of these legal proceeding," he would have "[brought] to the attention of my attorneys certain important factual matters." Patel Amended and Restated Aff., ¶ 2. The supposedly new relevant factual matter was that the three surgeons had prior affiliation with the Hospital as attending surgeons, and that no "turnover" in the positions has taken place. In support of the assertion of prior affiliations, plaintiff submits as his Exhibit A a memorandum which indicates the dates at which two of the three new doctors had been appointed to the Hospital staff. That memorandum had been "Exhibit B" to the affidavit of Miles Kucker, M.D. submitted by defendant with the motion for summary judgment. The remainder of plaintiff's affidavit is essentially reargument of the merits of the summary judgment motion. Plaintiff claims that prior to the July 15, 1991 decision he did not understand the nature of defendant's proffered reason for the dissolution of his position, but that his new affidavit should now effectively demonstrate that it was pretextual, and that summary judgment should have been denied.

Defendant, by its President and Chief Executive Officer George Adams, submits an opposing affidavit. He first states that plaintiff has no language problem. Adams Aff. ¶ 2. He then states that the attending surgeons were chosen to fill the three new positions because none were well established and one of them, Dr. Khan, had expressed intention to leave the Hospital and move to a different community. Id. ¶ 6(d). He states that the salaried nature of the clinic positions serves as a significantly stronger incentive than a grant of attending status. Moreover, plaintiff was well aware of the background of these surgeons prior to the motion; in fact, he trained them. Adams also explains that while LMC still does not have a full residency program, in October 1990 by affiliation with Maimonides Medical Center four surgical residents from Maimonides are now being trained at LMC. They have not rotated new surgeons into the three clinic positions because of the difficulty of recruiting new surgeons and because the need has become less urgent. Id. ¶¶ 6(i)-(j).


1. Propriety of moving under 52(b) and 59(e):

Rule 52, Fed.R.Civ.P., provides, in part:

Findings By the Court

    (a) Effect. In all actions tried upon the facts
  without a jury or with an advisory jury, the court
  shall find the facts specially and state
  separately its conclusions of law thereon. . . .
  Findings of fact and conclusions of law are
  unnecessary on decisions of motions under Rule 12
  or 56 or any other motion except as provided in
  Rule 41(b).
    (b) Amendment. Upon motion of a party made not
  later than 10 days after entry of judgment the
  court may amend its findings or make additional
  findings and may amend the judgment accordingly.
  The motion may be ...

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