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KAM SHING CHAN v. CITY OF NEW YORK

September 8, 1992

KAM SHING CHAN, KAM TAI CHAN, JING YI CHEN, SHAN NON CHIU, BAK LOK CHU, KOK KUN CHU, ISRAEL GONZALEZ, SUI BIN HUANG, JIAN NING JIANG, KAM FAI KWOK, MOON SHUEN KWONG, WEI XIANG LEE, YANG I LEE, YOUNG SHI LEE, BING ZHAO LI, HAO HUI LI, KEI MAN LI, WAI TAI LI, CHI KWONG LIU, JACK YE LOUIE, SHENG HUA LU, TING GUANG MAI, CHEUK MING NG, KIN CHUNG NG, KIN HIN NG, SHUN GUO SHEN, TEN JEN SHEN, HAU WING SIN, VEIN DINH SINTRUONG, WING SHING TSE, WAI MAN WAN, KONG HTYAN WU, XU MING WU, GUO XUAN, YUE NAM ZHU, Plaintiffs, against CITY OF NEW YORK, DEPARTMENT OF HOUSING PRESERVATION AND DEVELOPMENT OF THE CITY OF NEW YORK, and CHINESE-AMERICAN PLANNING COUNSEL, INC., Defendants.


The opinion of the court was delivered by: ROBERT J. WARD

 WARD, District Judge.

 Defendants City of New York ("the City") and the Department of Housing Preservation and Development of the City of New York (collectively "municipal defendants") and Chinese-American Planning Counsel, Inc. ("CPC") have each moved, pursuant to Local Civil Rule 3(j), USDC, SDNY, for reargument of that portion of this Court's Opinion and Order dated June 5, 1992 (the "June 5, 1992 Opinion and Order") in which the Court "declined the municipal defendants' request to certify this case for an interlocutory appeal pursuant to 28 U.S.C. § 1292(b)". Kam Shing Chan and the other plaintiffs (collectively "plaintiffs") oppose the instant motions. For the reasons that follow, the Court: (1) deems defendants' motions for reargument to be motions to modify the June 5, 1992 Opinion and Order; and (2) grants these motions, thereby certifying this case for an interlocutory appeal pursuant to 28 U.S.C. § 1292(b). In all other respects, the Court adheres to its June 5, 1992 Opinion and Order.

 BACKGROUND

 The relevant background to the underlying action is contained in the June 5, 1992 Opinion and Order at 3-6.

 On June 3, 1992, approximately one month after oral argument on defendants' motions to dismiss and two days before the Court issued its opinion on those motions, municipal defendants submitted a short letter, containing little supporting authority, to the Court seeking certification of an interlocutory appeal pursuant to 28 U.S.C. § 1292(b). Prior to issuance of the June 5, 1992 Opinion and Order, no other party made any submissions on this subject to the Court. In its June 5, 1992 Opinion and Order, this Court declined to certify the case for interlocutory appeal, and the instant motions followed.

 DISCUSSION

 A. Defendants' Motions for Reargument

 A party may move for reargument pursuant to Local Civil Rule 3(j) only upon an assertion that "the court has overlooked 'matters or controlling decisions' which, had they been considered, might reasonably have altered the result reached by the court." Adams v. United States, 686 F.Supp. 417, 418 (S.D.N.Y. 1988) (quoting Local Civil Rule 3(j), USDC, SDNY), quoted in Schonberger v. Serchuk, 742 F.Supp. 108, 119 (S.D.N.Y. 1990).

 In addition, "a party making a motion for reargument may not, under [Local] Civil Rule 3(j), advance new facts, issues or arguments not previously presented to the Court." Schonberger v. Serchuk, 742 F.Supp. at 119.

 In light of the fact that neither CPC nor plaintiffs briefed the § 1292(b) certification issue prior to issuance of the June 5, 1992 Opinion and Order, and that municipal defendants' letter seeking certification cited little authority in support of municipal defendants' position, it is clear that, in the context of the instant motions for reargument, each of which presents a great deal of supporting authority, all parties are "advancing new facts, issues or arguments not previously presented to the Court." Accordingly, this Court would be compelled to deny defendants' motions for reargument pursuant to Local Civil Rule 3(j).

 However, because the issues concerning § 1292(b) certification have only now been fully briefed, in the context of defendants' motions for reargument, it is appropriate to treat these issues as before the Court for the first time. For this reason, the Court deems the instant motions to be motions to modify the June 5, 1992 Opinion and Order. Accordingly, the Court now turns to the merits of the parties' arguments.

 B. Certification of an Interlocutory Appeal Pursuant to 28 U.S.C. § 1292(b)

 Defendants seek an interlocutory appeal pursuant to 28 U.S.C. § 1292(b), which provides, ...


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