L. Ed. 2d 171 (1983))); see also Pal v. Albany County Dep't of Social Servs., No. 92- CV-226, 1992 U.S. Dist. LEXIS 10534 (N.D.N.Y. June 16, 1992) (McCurn, C.J.); Stilloe v. Almy Bros., Inc., 782 F. Supp. 731, 733 (N.D.N.Y. 1992) (McCurn, C.J.).
With respect to this last ground for reconsideration, the Second Circuit has stated that "it is not enough, . . ., that the [moving party] now make a more persuasive argument . . . The law of the case will be disregarded only when the court has 'a clear conviction of error' with respect to a point of law on which its previous decision was predicated, . . ." Fogel v. Chestnutt, 668 F.2d 100, 109 (2d Cir. 1981) (citing Zdanok v. Glidden Co., [327 F.2d 944, 953 (2d Cir. 1964)] (citing in turn Johnson v. Cadillac Motor Car Co., 261 F. 878, 886 (2d Cir. 1919))).
Plaintiff does not state upon which of these grounds he bases his motion for reconsideration. The court notes, however, that nowhere in his memorandum of law does plaintiff refer to any intervening change of controlling law or the availability of new evidence. Therefore, the court must assume that plaintiff's motion is based upon his contention that the court should reconsider its previous decision to correct a clear error or prevent manifest injustice. In support of his motion, plaintiff offers two arguments. First of all, he asserts that "because plaintiff suffered a physical injury herein, namely a stomach disorder, the question of the applicability of New York precedent regarding purely emotional injuries need not be addressed." See Plaintiff's Memorandum of Law at 2. Alternatively, plaintiff avers that even assuming "that plaintiff suffered only an emotional injury it was the result of grossly negligent conduct and thus is actionable herein." See Plaintiff's Memorandum of Law at 3.
These arguments are not new. In fact, the court considered both of them in reaching its decision to grant Conrail's motion for summary judgment and found neither one persuasive. First of all, in his opposition to Conrail's summary judgment motion, plaintiff failed to direct this court's attention to any concrete evidence of his stomach disorder. Nor did he disclose the nature or the extent of this problem to the court. He merely asserted that he suffered from such an ailment. There is no question that plaintiff had ample opportunity to present such evidence to the court at the time it considered Conrail's motion for summary judgment. Having failed to do so, he cannot now resort to a motion for reconsideration to present evidence that was available to him prior to the time the court originally considered this matter. Furthermore, even if the court were to allow plaintiff some latitude in this regard, he has come forward with no new facts or evidence concerning his vague stomach disorder which would lead this court to conclude that it clearly erred in its determination that plaintiff's injuries were purely emotional.
Nor, despite plaintiff's assertion, does the decision in Masiello v. Metro-North Commuter R.R., 748 F. Supp. 199 (S.D.N.Y. 1990), mandate a different result. In Masiello, the plaintiff suffered not only emotional injuries but also an ulcer. The defendants argued that plaintiff's ulcer was "merely a physical manifestation of her emotional problems and therefore does not meet the physical injury requirement to state a claim under the FELA," id. at 205, citing Elliott v. Norfolk & Western Ry. Co., 722 F. Supp. 1376 (S.D.W. Va. 1989), aff'd on other grounds, 910 F.2d 1224 (4th Cir. 1990) and Rose v. National R.R. Passenger Corp., 1989 U.S. Dist. LEXIS 12011, Civ. No. 88-0955 (D.D.C. Sept. 27, 1989), in support of their position. The court disagreed, however, finding Elliott and Rose distinguishable based upon its conclusion that the plaintiffs in those cases had not "suffered any discrete physical injury," id., whereas, to the contrary, Ms. Masiello's ulcer was a "significant physical injury." id. n.9. Given the evidence before it, this court concludes that plaintiff's rather nebulous reference to a "stomach disorder" is more akin to the description of the injuries suffered by the plaintiffs in Elliott and Rose than it is to the injury suffered by the plaintiff in Masiello. Accordingly, the court holds that it did not err when it concluded that plaintiff suffered purely emotional injuries.
Alternatively, plaintiff argues that even if he suffered purely emotional injury, such injury resulted from Conrail's grossly negligent conduct. See Plaintiff's Memorandum of Law at 3-4. In support of this argument, plaintiff relies upon the same cases which the court considered in its January 15, 1993, decision. With respect to these cases, plaintiff originally argued that they demonstrated that "New York courts are evolving in the same direction as the Fifth Circuit Court of Appeals in Plaisance, [937 F.2d 1004 (5th Cir. 1991)]."
See Plaintiff's Memorandum of Law in Opposition to Conrail's Motion for Summary Judgment at 13. He now argues that
in each case, the plaintiff was beset by egregiously [sic] traumatic situations, which were characterized as grossly negligent conduct on the part of the defendants involved. Similarly, there was a pattern of grossly negligent conduct on the part of plaintiff's supervisors in the case at bar, which, although never placing plaintiff directly in harm's way, caused him to suffer severe emotional injury.