insurance examinations under oath and in their written witness statements and oral testimony in the English Litigation. Id.
The Opinion also concluded that the strong presumption of probable cause created by the Grand Jury indictment had not been overcome by Plaintiffs' proffered "evidence" of (1) perjury by McNicholas, Coyne and Alizade before the Grand Jury, (2) secret and illegal meetings among the Omnibus Defendants, the Police Department, and the District Attorney's Office, (3) illegal viewing and inspection of Grand Jury evidence, (4) tampering with evidence, (5) knowing disregard of other leads, and (6) effective intimidation of accounting witnesses by granting them immunity in return for misleading testimony.
This Court further held that Plaintiffs had failed to present admissible evidence to create a genuine issue of material fact as to almost all of these contentions, and held that to the extent that genuine issues of material fact existed with regard to any one of them, "the cumulative effect is insufficient, even making all presumptions in Plaintiffs' favor, to create a genuine issue of material fact that there was no probable cause to indict them." Id. at *8. This Court concluded that the Defendants' responses to Plaintiffs' 3(g) Statement "amply demonstrated that despite Plaintiffs' attempt to create a genuine issue of material fact, they have adduced little admissible evidence, and that which they have adduced is overwhelmed by the evidence of the Omnibus Defendants." Id.
Plaintiffs filed their notice of the instant motion to reargue on September 24, 1996. Submissions were received through October 24, 1996, at which time the matter was deemed fully submitted.
I. The Motion to Reargue3
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 Domenech v. City of New York, 927 F. Supp. 106, 108 (S.D.N.Y. 1996); 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).
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 use the motion to reargue as a substitute for appealing from a final judgment. See Morser v. AT&T Information Sys., 715 F. Supp. 516, 517 (S.D.N.Y. 1989); 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., 1989 U.S. Dist. LEXIS 9145, No. 86 Civ. 6447, 1989 WL 162315, at *3 (S.D.N.Y. 1989).
Because the Court overlooked neither controlling decisions nor factual matters put before it on the underlying motions for summary judgment, the present motions will be denied.
A. Section 1983 Claims
Plaintiffs apparently do not challenge the dismissal of the § 1983 cause of action alleging a deprivation of their right to pursue without interference their English lawsuit.
Plaintiffs do contend, however, that the Court overlooked matters related to its claim of malicious prosecution.
To establish a malicious prosecution claim under New York law, a plaintiff must prove four elements: (1) the initiation or continuation of a criminal proceeding against the plaintiff; (2) the termination of the proceeding in the plaintiff's favor; (3) a lack of probable cause for commencing the proceeding; and (4) actual malice as motivation for the defendant's actions. Russell v. Smith, 68 F.3d 33, 36 (2d Cir. 1995); Posr v. Doherty, 944 F.2d 91, 100 (2d Cir. 1991); Pandolfo v. U.A. Cable Sys., 171 A.D.2d 1013, 568 N.Y.S.2d 981, 982 (N.Y. App. Div. 4th Dep't 1991). In Scheiner IV, this Court held that Plaintiffs had failed to raise a genuine issue of material fact suggesting that there was a lack of probable cause for the Grand Jury indictment. The question on the underlying summary judgment motion was not whether a reasonable jury would not have convicted the plaintiffs or whether a reasonable jury could find that there were irregularities in the prosecution of the plaintiffs, but whether a reasonable jury could find that the Grand Jury did not have before it the minimal competent evidence required to support a finding of probable cause. This Court concluded that a reasonable jury could not so find.
Plaintiffs raise a number of matters that they contend the Court overlooked in its September 4, 1996 Opinion.
Plaintiffs' primary contentions on reargument are that:
(1) the Court should not have relied upon the Grand Jury Summary and Castleman affidavit because they were allegedly "inaccurate" and "inadmissible" and that in any event, summary judgment should not have been granted before the Plaintiffs had an opportunity to view all of the Grand Jury transcripts;