United States District Court, S.D. New York
December 31, 2003.
STEVEN JUDE HOFFENBERG, Plaintiff, -against- HOFFMAN & POLLOK, Defendent
The opinion of the court was delivered by: ROBERT SWEET, Senior District Judge
Plaintiff Steven Hoffenberg ("Hoffenberg") has moved for
reconsideration of the Court's October 23, 2003 opinion. See Hoffenberg
v. Hoffman & Pollok, No. 00 Civ. 3151, 2003 WL 22420384 (S.D.N.Y.
Oct. 23, 2003) (the "October 23 Opinion" or "Hoffenberg"). The October 23
Opinion granted defendant Hoffman & Pollok, now known as Hoffman
Pollok & Pickholz LLP ("HPP"), summary judgment and denied
Hoffenberg's cross-motion under Rule 60(a) and (b) seeking recusal. The
October 23 Opinion further granted Hoffenberg thirty days to submit any
additional facts and HPP another ten days to reply to these submissions.
Id. at *12. For the reasons set forth below, Hoffenberg's motion for
reconsideration is denied.
Hoffenberg filed the complaint in this action (the "Complaint") on
April 25, 2000, alleging diversity jurisdiction. Hoffenberg first alleges
that HPP issued fraudulent billing to him for services that were never
provided (Complaint at ¶¶ 16, 43-49). Second, he alleges that HPP
fraudulently induced Hoffenberg to "write a letter about the over one
million dollars advanced to HP by Pro Se" an apparent reference
to a letter dated May 29, 1996 in which Hoffenberg released all claims he
had against HPP. Third, Hoffenberg alleges that HPP committed malpractice
and breached their fiduciary duty not only throughout the course of HPP's
representation of Hoffenberg (id. at ¶ 41), but also in connection
with the monies set aside for legal services by the consent judgment
(id. at ¶¶ 19-42) by taking a $450,000 set aside from a third party.
They thus acted adversely to Hoffenberg, colluding with a third party and
forcing Hoffenberg to enter into an adverse agreement for HPP's benefit.
The instant motion was marked fully submitted on December 1, 2003.
A motion for reconsideration "is appropriate where a court overlooks
`controlling decisions or factual matters that were put before it on the
underlying motion . . . and which, had they been considered, might have
reasonably altered the result before the court.'" Banco de Seguros del
Estado v. Mut. Marine Offices, Inc., 230 F. Supp.2d 427, 428 (S.D.N.Y.
2002) (quoting Range Rd. Music, Inc. v. Music Sales Corp.,
90 F. Supp.2d 390, 392 (S.D.N.Y. 2000)). "The standard for granting
. . . a motion [for reconsideration] is strict, and reconsideration will
generally be denied unless the moving party can point to controlling
decisions or data that the court overlooked matters, in other
words, that might reasonably be expected to alter the conclusion reached
by the court." Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995). "[A] motion for reconsideration may be granted to `correct a clear
error or prevent manifest injustice.'" Banco, 230 F. Supp.2d at 428
(quoting Griffin Indus., Inc. v. Petrojam, Ltd., 72 F. Supp.2d 365, 368
(S.D.N.Y. 1999)). However, this must be "narrowly construed and strictly
applied so as to avoid repetitive arguments on issues that have been
considered fully by the Court." Dellefave v. Access Temps., Inc., No. 99
Civ. 6098, 2001 U.S. Dist. LEXIS 3165 (S.D.N.Y. Mar. 21, 2001).
Hoffenberg fails to meet this standard by neither "point [ing] to
controlling decisions or data that the court overlooked," Schrader, 70
F.3d at 257, nor showing that reconsideration is necessary in order to
"correct a clear error or prevent manifest injustice." Banco, 230 F.
Supp.2d at 428. Hoffenberg has not alleged any new facts which would
prevent the entry of summary judgment dismissing his complaint. Rather,
his submission is a reiteration of his previous arguments, even
incorporating by reference his July 12, 2003 response.
B. Statute of Limitations
Pointing to Stull v. Bayard, 561 F.2d 429 (2d Cir. 1977), Hoffenberg
argues that his claims of fraudulent billing should not be dismissed as
untimely under CPLR §§ 213(8) and 203(g).*fn1 However, Hoffenberg fails to submit any new facts and already brought
Stull v. Bayard to the Court's attention in his July 1, 2003 and July
12, 2003 submissions. In fact, the October 23 Opinion cites to Stull v.
Bayard in explaining that under the discovery method it employs, the
statute of limitations accrued on June 26, 1996 when Hoffenberg
discovered the charge for services never provided and expired on June
26, 1998, two years later. Hoffenberg I, at *7 (citing Stull, 561 F.2d at
431). Thus, as previously held, Hoffenberg's claims are untimely. See
Ackerman v. Nat'l Property Analysts, 887 F. Supp. 494, 504 (S.D.N.Y.
1992) (time barring under six-year statute of limitations fraud claims of
all plaintiffs who invested in limited partnerships prior to December
19, 1985 where complaint was filed on December 19, 1991).
Hoffenberg further argues that the October 23 Opinion wrongly refused
to grant this Court's recusal under 28 U.S.C. § 455(a) and 455(b).
Hoffenberg, however, offers no new arguments or facts in support of
recusal. As previously explained:
In his reply brief filed on July 3, 2003, [Hoffenberg]
alleges grounds for recusal based upon an interest of
a member of my wife's family in The New York Post
which Hoffenberg sought to acquire after that interest
had been terminated. There is no relationship to that
interest in the proceedings described above,
chronologically or in any other fashion.
Hoffenberg I, at *12. Conclusion
Hoffenberg's motion for reconsideration is thereby denied.
It is so ordered.