The opinion of the court was delivered by: SWEET
Plaintiffs Richard and Magdalena Joblon (the "Joblons") have moved for an order permitting reconsideration of the Court's Opinion dated February 13, 1996, and docketed February 14, 1996, 914 F. Supp. 1044 (S.D.N.Y. 1996) (the "Opinion"). In the alternative, the Joblons seek certification for interlocutory appeal, pursuant to 28 U.S.C. § 1292.
For the following reasons both motions will be denied.
The nature of the parties, prior proceedings, and facts underlying this action are set forth in the Opinion, familiarity with which is assumed. The Opinion, inter alia, denied the Joblons' motion for summary judgment declaring Section 240(1) of the Labor Law of the State of New York (McKinney 1986) ("Section 240(1)") to apply to their claim for damages arising from an injury suffered by Joblon while working as an electrician on property owned by defendant Sheldon H. Solow and leased by defendant Avon Products, Inc. The Opinion also granted the motion of third-party defendant Geller Electric Construction & Maintenance, Inc., Joblon's employer, for summary judgment that Section 240(1) does not apply to the facts of the case.
The Motion to Reargue Will Be Denied
Local Rule 3(j) provides in pertinent part, "There shall be served with the notice of motion a memorandum setting forth concisely the matters or controlling decisions which counsel believes the court has overlooked." Thus, to be entitled to reargument under Local Rule 3(j), a party must demonstrate that the Court overlooked controlling decisions or factual matters put before it on the underlying motion. See Ameritrust Co. Nat'l Ass'n v. Dew, 151 F.R.D. 237 (S.D.N.Y. 1993); Fulani v. Brady, 149 F.R.D. 501, 503 (S.D.N.Y. 1993); East Coast Novelty Co. v. City of New York, 141 F.R.D. 245, 245 (S.D.N.Y. 1992); B.N.E. Swedbank, S.A. v. Banker, 791 F. Supp. 1002, 1008 (S.D.N.Y. 1992); Novak v. National Broadcasting Co., 760 F. Supp. 47, 48 (S.D.N.Y. 1991); Ashley Meadows Farm Inc. v. American Horse Shows Ass'n, 624 F. Supp. 856, 857 (S.D.N.Y. 1985).
Local Rule 3(j) is to be narrowly construed and strictly applied so as to avoid repetitive arguments on issues that have been considered fully by the court. See Caleb & Co. v. E.I. Du Pont De Nemours & Co., 624 F. Supp. 747, 748 (S.D.N.Y. 1985). In deciding a Local Rule 3(j) motion, the court must not allow a party to use the motion to reargue as a substitute for appealing from a final judgment. See Morser, 715 F. Supp. 516, 517; Korwek v. Hunt, 649 F. Supp. 1547, 1548 (S.D.N.Y. 1986). Therefore, a party in its motion for reargument "may not advance new facts, issues or arguments not previously presented to the court." Litton Indus., Inc. v. Lehman Bros. Kuhn Loeb, Inc., No. 86 Civ. 6447, 1989 U.S. Dist. LEXIS 9145, *10, 1989 WL 162315, at * 3 (S.D.N.Y. 1989).
Because the Opinion overlooked neither controlling decisions nor factual matters put before it on the underlying motions for summary judgment, the present motion to reargue will be denied.
Plaintiffs suggest that the Court overlooked several cases cited by them in relation to the underlying motion. To the contrary, after fully considering all of the cases on point, and noting that "all other arguments advanced by the parties have been considered and deemed unpersuasive," Joblon, 914 F. Supp. at 1050, the Court noted that "the parties have cited equally persuasive authorities for each categorization" of Joblon's work as repair or maintenance. Id. at 1047. All cases offered by the Joblons were considered and none cited by either party was deemed sufficiently close factually to the matter at hand. They were not "ignored" by the Court. Pl. Mem. at 9, 10, 11. Therefore, "Rather than engage in an ipse dixit determination, it [was] appropriate to reflect on the underlying purpose of the statute to reach the determination that Joblon's fall from the ladder is not covered." Id. Evaluating the facts at hand in full, as noted above, and having determined the cases to provide ample authority for either side's case, the Opinion deemed the work performed by Joblon to be maintenance. Plaintiffs' attempt in their papers here to distinguish the cases favoring Defendants' argument is therefore more appropriate to an appeal than a reargument.
Because the Court did not overlook issues of fact or controlling law in the Opinion, the motion to ...