The opinion of the court was delivered by: VICTOR MARRERO, District Judge
Pro se plaintiff Michael Melnitzky's ("Melnitzky") initiated this
action alleging fraud and breach of contract; defamation; conspiracy to
obtain services and avoid payment; and prima facie tort. Defendant Robert
Rose ("Rose") moved to dismiss the complaint pursuant to Federal Rule of
Civil Procedure 12(b)(6) for failure to state a cause of action upon
which relief could be granted. By Decision and Order dated January 13,
2004, the Court granted Rose's motion in its entirety. See
Melnitzky v. Rose, 03 Civ. 5469, 2004 WL 63472 (S.D.N.Y. Jan.
13, 2004) (the "Order"). Melnitzky now moves for reconsideration of the
Order pursuant to Federal Rule of Civil Procedure 59(e). For the
reasons set forth below, Melnitzky's motion for reconsideration is
Reconsideration of a court's previous order is an "extraordinary remedy
to be employed sparingly in the interests of finality and conservation of
scarce judicial resources." In re Health Management Sys. Inc. Sees.
Litig., 113 F. Supp.2d 613, 614 (S.D.N.Y. 2000). Under Local Civil
Rule 6.3, which governs motions for reconsideration, the moving party
must demonstrate controlling law or a factual matter before the court on
the underlying motion that the movant believes the court overlooked and
that might reasonably be expected to alter the court's decision.
See SEC v. Ashbury Capital Partners. L.P., No. 00
Civ. 7898, 2001 WL 604044, *1 (S.D.N.Y. May 31, 2001) (citing
AT&T Corp. v. Community Network Servs., Inc., No. 00 Civ.
316, 2000 WL 1174992, * 1 (S.D.N.Y. Aug. 18, 2000) and Local Civil
Rule 6.3). Reconsideration may be granted to correct clear error,
prevent manifest injustice or review the court's decision in light of
the availability of new evidence. See Virgin Atlantic
Airways, Ltd. v. Nat'l Mediation Bd., 956 F.2d 1245, 1255
(2d Cir. 1992).
A Rule 59(e) motion is not intended to be a vehicle for a party
dissatisfied with a court's ruling to advance new theories that the
movant failed to advance in connection with the underlying motion, nor to
secure a rehearing on the merits
with regard to issues already decided. See Griffin
Indus., Inc. v. Petrojam, Ltd., 72 F. Supp.2d 365, 368 (S.D.N.Y.
1999). Consistent with these objectives, the strict parameters of Local
Civil Rule 6.3 are designed to ensure "the finality of decisions and to
prevent the practice of a losing party examining a decision and then
plugging the gaps of a lost motion with additional matters."
See Ashbury, 2001 WL 604044, at *1 (citing
Carolco Pictures. Inc. v. Sirota, 700 F. Supp. 169, 170
(S.D.N.Y. 1988)). A court must narrowly construe and strictly apply Local
Civil Rule 6.3, so as to avoid duplicative rulings on previously
considered issues, and to prevent the rule from being used as a
substitute for appealing a final judgment. See Shamis v.
Ambassador Factors Corp., 187 F.R.D. 148, 151 (S.D.N.Y. 1999);
In re Houbigant, Inc., 914 F. Supp. 997, 1001 (S.D.N.Y. 1996)
(noting that a motion for reconsideration is not an opportunity for the
moving party to "argue those issues already considered when a party does
not like the way the original motion was resolved."). Against this
standard, the Court considers Melnitzky's arguments for reconsideration.
In seeking reconsideration of this Court's Order, Melnitzky's argues
that the Court misconstrued certain factual
allegations in his original complaint.*fn2 Specifically, Melnitzky
draws the Court's attention to paragraphs eight through ten of his
complaint, where he alleges that he provided his professional evaluation
to Rose with regard to three paintings that are part of the Estate
(hereinafter "the Paintings"). According to Melnitzky, the Court did not
distinguish the agreement for services Melnitzky provided Rose with
regard to the Paintings from the agreement for "additional" services
Melnitzky provided the Kaufmans, as Executors of the Estate, as alleged
in paragraph eleven of his complaint. In other words, Melnitzky urges
this Court to interpret the services provided for the Paintings as part
of a separate agreement between himself and Rose. The Court wholly
rejects this contention as baseless and contradicted by Melnitzky's own
complaint and other pleadings.
Even the most liberal interpretation of Melnitzky's complaint lends no
support to Melnitzky's theory that there was one agreement for the
evaluations of the Paintings with Rose and a second agreement for the
balance of the Estate artwork. It is uncontradicted that all the artwork
in the Manhattan apartment where Melnitzky alleges he provided his
services was part of the same Estate. There is no allegation
or even a remote suggestion in Melnitzky's complaint that Rose had
any ownership or any other personal interest in the Paintings that is
separate from the "additional" services alleged in paragraph eleven of
the complaint. Melnitzky himself contradicts this interpretation. For
example, in his complaint Melnitzky alleges that Rose "claimed to be
acting on behalf of his mother [as one of the Estate executors] and that
Rose "was representing their [the Kaufmans'] interest in hiring the
service of [Melnitzky]." (Complaint, Melnitzky v. Rose,
N.Y.S.up. Ct. Index No. 03/113116, dated July 17, 2003 (the "Complaint"), at
¶ 5.) Similarly, in his opposition to Rose's motion to dismiss the
Complaint, Melnitzky stated that Rose "represented himself as the agent
of the estate administrators." (Opposition To Defendant's Motion To
Dismiss, dated Aug. 9, 2003, at 4.)
These allegations belie Melnitzky's claim that Rose was the
"beneficiary" of the services provided with regard to the Paintings.
Presumably, whatever professional evaluation of the Paintings Melnitzky
allegedly provided Rose was, or would have been, conveyed to the Kaufmans
for the benefit of the Estate. Melnitzky is under the mistaken belief
that as the recipient of Melnitzky's professional evaluation of
the Paintings, Rose must be personally liable for payment of these
services. The facts alleged do not support such an claim.
As described in greater detail in the Order, the complaint alleges at
best that Rose was acting as an agent of the Kaufmans. As such, the
procurement and receipt of services performed for the benefit of
disclosed principals, in this case the Kaufmans and/or the Estate, is
within the scope of an agency and does not render Rose personally liable
for an alleged breach, absent an intention to be so bound. See
Cruz v. NYNEX Info. Res., 703 N.Y.S.2d 103, 107 (App. Div. 1st
Dep't 2000); Leonard Holzer Assocs., Inc. v. Orta, 672 N.Y.S.2d 915,
916 (App. Div.2d Dep't 1998); Sweeney v. Herman Mgmt.,
Inc., 447 N.Y.S.2d 164, 166 (App. Div. 1st Dep't 1982). Melnitzky's
allegation that Rose "hired and instructed" him does not change this
result, nor does the allegation that Rose provided Melnitzky with a key
to the apartment. The Court considered these allegations in the Order and
found that these acts were consistent with, at best, an agency
relationship. Thus, even after granting the Complaint the broad
interpretation that Melnitzky reminds the Court it is entitled to, the
Court concludes that Melnitzky has failed to demonstrate any controlling
law or a factual matter before the Court on the underlying motion that
the Court overlooked and that might reasonably be expected to alter its
Because there is no support for the interpretation that Melnitzky urges
in his motion for reconsideration, his
argument, in essence, injects a new theory into the Complaint. It is
well established that a motion for reconsideration is not the proper
vehicle to advance new arguments or theories under the facts alleged.
See, e.g., American Nat'l Fire Ins. Co. v.
Mirasco Inc., 287 F. Supp.2d 442, 444 (S.D.N.Y. 2003) ("The
parties may not present new facts or theories at this stage.") (citation
omitted); Richard Feiner & Co., Inc. v. BMG Music Spain,
S.A., No. 01 Civ. 0937, 2003 WL 21496812, at *1 (S.D.N.Y. June 27,
2003) (stating that new arguments are not cognizable in a motion for
reconsideration) (citation omitted).
Accordingly, Melnitzky's motion for reconsideration of the Court's
Order, dated January 13, 2004, dismissing the Complaint in its entirety
is denied for the foregoing reasons and for substantially the same
reasons set forth in the Order. The Court notes that Melnitzky has
exhausted his remedies before this Court on the Complaint.
For the reasons set forth above, it is hereby ORDERED that
the motion of plaintiff Michael Melnitzky ("Melnitzky")for
reconsideration of the Court's Order dated January 13, 2004, pursuant ...