486, 490 (S.D.N.Y. 1994); Morser v. A.T. & T. Information
Systems, 715 F. Supp. 516, 517 (S.D.N.Y. 1989).
Local Rule 6.3 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, defendant must demonstrate that the Court overlooked
controlling decisions or factual matters that were 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 6.3 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 6.3 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. at 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., 1989 WL
162315, at * 3 (S.D.N.Y. 1989). The decision to grant or deny a
motion for reargument is within the sound discretion of the
district court. See Schaffer v. Soros, 1994 WL 592891 (S.D.N Y
Oct. 31, 1994).
As an initial matter, Mt. Sinai submits that the Court
"functioned under a misapprehension" in finding that Mrs. Bravin
could not have attended the Lamaze classes by herself.
(Defendant's Brief at 2). Regardless of whether expectant mothers
may attend Lamaze classes at Mt. Sinai by themselves, the
fundamental fact remains that Mt. Sinai as a "public
accommodation," was providing a service — Lamaze classes — to
mothers-to-be and their chosen partners, in this case, Bravin, a
qualified individual with a disability. Despite the quantity and
intensity of communication devoted to this point by the parties,
it is not relevant whether either of the Bravins could have
attended the classes alone. Rather, the point is that since the
course, as a benefit or service, was open to a person without a
disability, Mt. Sinai cannot deny access to that benefit or
service to a person with a disability. Accordingly, and as noted
in the Opinion, see Bravin, 186 F.R.D. 293, 304-05, it would
appear that in order to allow Bravin to participate in and
benefit from the service being provided, Mt. Sinai was required
to make some reasonable accommodation for Bravin. See Alexander
v. Choate, 469 U.S. 287, 301, 105 S.Ct. 712, 83 L.Ed.2d 661
(1985) (the RA requires that "an otherwise qualified handicapped
individual  be provided with meaningful access to the benefit
that the grantee offers. . . . [T]o assure meaningful access,
reasonable accommodations in the grantee's program or benefit may
have to be made."); 28 C.F.R. § 35.130(b)(7) ("A public entity
shall make reasonable modifications in policies, practices, or
procedures when the modifications are necessary to avoid
discrimination on the basis of disability, unless the public
entity can demonstrate that making the modifications would
fundamentally alter the nature of the service, program or
Mt. Sinai also contends that partial summary judgment was
premature as no discovery has taken place and that questions of
fact exist regarding whether effective communication was achieved
and as to the
intentionality of the alleged discrimination under the
Rehabilitation Act of 1973 (the "RA"), 29 U.S.C. § 794.
B. The Motion for Reconsideration is Denied with Respect to
Mt. Sinai submits that whether effective communication was
obtained by Bravin is a question of fact which requires
discovery. Mt. Sinai has failed to demonstrate that the Court
overlooked any factual matters or controlling authority on this
The Opinion specifically states, "what constitutes `effective
communication' is a question of fact" See Bravin, 186 F.R.D.
293, 302-03 (citing Borkowski v. Valley Cent. School Dist.,
63 F.3d 131 (2d Cir. 1995)). The Opinion also acknowledges that
"[t]o say that a reasonable accommodation is required, however,
does not necessarily mean that Bravin was entitled to a qualified
interpreter." Bravin, 186 F.R.D. 293, 304-05. However, Mt.
Sinai's position on the underlying motion was that Bravin did not
have any right to any accommodation with respect to the Lamaze
classes. Given that Mt. Sinai did not provide Bravin with any
accommodation,*fn2 it seems obvious that "effective
communication" could not have been achieved. It is thus unclear
what purpose discovery on this issue would serve.
C. The Motion for Reconsideration is Granted with Respect to
Intentional Discrimination and the Grant of Summary Judgment is
"Most, but not all, courts agree that compensatory damages are
recoverable under [the RA] only in cases involving intentional
discrimination." Bartlett v. New York State Board of Law
Examiners, 970 F. Supp. 1094, 1147 (S.D.N.Y. 1997), aff'd in
part, vacated in part on other grounds, and remanded
156 F.3d 321 (2d Cir. 1998). In the context of the RA, intentional
discrimination against the disabled does not require personal
animosity or ill will. See Bartlett v. New York State Board of
Law Examiners, 156 F.3d at 331 (citing Tyler v. City of
Manhattan, 118 F.3d 1400, 1406 (10th Cir. 1997)). Intentional
discrimination may be inferred when a "policymaker acted with at
least deliberate indifference to the strong likelihood that a
violation of federally protected rights will result from the
implementation of the [challenged] policy . . . [or] custom."
Bartlett, 156 F.3d at 331 (quoting Ferguson v. City of
Phoenix, 931 F. Supp. 688, 697 (D.Ariz. 1996), aff'd and
remanded, 157 F.3d 668 (9th Cir. 1998)).
Mt. Sinai contends that genuine issues of material fact exist
as to its intent and whether it acted with "deliberate
indifference." Mt. Sinai submits that the record presented to
this Court on the underlying motion established that it was
dealing with a novel issue and that it had exhibited a
laudatory-record of compliance with known guidelines. Mt. Sinai
points to the affidavit of Nina Kuscsik ("Kuscsik"), a Patient
Representative, detailing a full range of services and aids that
the Medical Center provides to hearing-impaired patients and
their families and demonstrating Mt. Sinai's record of complying
with all applicable discrimination laws. Mt. Sinai urges that the
affidavit of Kuscsik in conjunction with the "ambiguities" of the
guidelines set forth in the policy letter from the United States
Department of Health and Human Services ("HHS")*fn3 raise a
question of fact
as to the intentionality of Mt. Sinai's conduct with respect to
the Lamaze classes.
Notwithstanding Kuscsik's recitation of Mt. Sinai's commendable
history of providing services to the hearing-impaired, based on
the record on the underlying motion it would be difficult not to
conclude that Mt. Sinai acted with deliberate indifference to
Bravin's rights. As noted above, Mt. Sinai's primary argument was
that since the Lamaze classes were not "offered" to Bravin, the
Medical Center had no obligation to provide him with auxiliary
aids. As stated in the Opinion, see Bravin, 186 F.R.D. 293,
304-05, and as discussed above, this contention is without merit,
and does not suggest that defendant was "sincerely trying to
perform its job and follow state and federal guidelines."
(Defendant's Brief at 5 (citing Marvin H. v. Austin Ind. Sch.
Dist., 714 F.2d 1348 (5th Cir. 1983)).
However, Mt. Sinai is correct that this Court did not render a
finding on defendant's intent,*fn4 and that in the absence of a
finding of intentional discrimination, plaintiff's motion for
summary judgment should not have been granted. As Mt. Sinai
rightly notes, an analysis of the mental state of the
policymaker, along with the totality of defendant's efforts to
accommodate the plaintiff and others similarly situated must be
undertaken in order to determine whether defendant acted with
deliberate indifference. See Ferguson, 931 F. Supp. at 697.
Accordingly, Mt. Sinai's motion for reconsideration is granted,
and that portion of the Opinion granting partial summary judgment
to the Bravins is vacated.
For the reasons set forth above, Mt. Sinai's motion for
reconsideration is granted in part and denied in part, and that
portion of the Opinion granting partial summary judgment to the
Bravins is vacated.
Settle judgment on notice.
It is so ordered.