The opinion of the court was delivered by: HAROLD BAER, JR., District Judge[fn1] [fn1] Dmitry Tuchinsky, a spring 2004 intern in my Chambers and a second-year law student at New York Law School, provided substantial assistance in the research and drafting of this opinion.
Plaintiffs move for reconsideration of the Court's January 5, 2004
Opinion and Order, which dismissed plaintiffs' complaint as time-barred
under the applicable four-year statute of limitations. For the following
reasons, plaintiffs' motion is denied.
The facts of this case are set out in the Court's January 5, 2004
Opinion and Order, 2004 WL 42262, familiarity with which is presumed.
Briefly, defendant Evergreen Gardens, Inc. ("Evergreen") is the landlord
of buildings located at 950 and 955 Evergreen Avenue in the Bronx, New
York; defendant Grenadier Realty Corp. ("Grenadier") is Evergreen's
licensed real estate broker and managing agent; and plaintiffs are
present and former tenants of Evergreen residing in the buildings.
Plaintiffs alleged that Grenadier, on behalf of Evergreen, sent monthly
invoices for rent that both Evergreen and Grenadier knew were false, in
that they contained hidden and illegal charges based on defendants'
over-count of rooms in each apartment. On January 5, 2004, I granted
defendants' motion to dismiss because plaintiffs' civil Racketeer
influenced and Corrupt Organizations Act ("RICO") allegedly false rental
invoices, was untimely, as it was brought more than four years after the
discovery of the alleged injury. Plaintiffs move for reconsideration,
pursuant to Local Civil Rule 6.3, and argue that: (1) their RICO claim is
not time-barred because defendants failed to prove
that plaintiffs had knowledge of their injuries; and (2) that
defendants owed plaintiffs a fiduciary duty and therefore their:
fraudulent concealment tolled the statute of limitations.*fn2 Plaintiffs
also seek leave to amend their complaint pursuant to Federal Rule of
Civil Procedure 15(a) on the grounds that the defendants had not yet
filed an answer.
Local Rule 6.3 of the Southern District of New York, which governs
motions for reconsideration, states in pertinent part that the movant
shall "set forth concisely the matters or controlling decisions which
counsel believes the court has overlooked." See also Shamis v.
Ambassador Factors Corp., 187 F.R.D. 148, 151 (S.D.N.Y. 1999).
Motions for reconsideration are not vehicles for repetitive arguments or
invitations to advance new facts or concepts. Id. Rather, when confronted
with a motion for reconsideration, the district court has discretion to
re-evaluate a prior decision that, upon further reflection, appears to be
Plaintiffs first contend that the defendants failed to prove that
plaintiffs knew of their injury prior to October 2001. This Court already
considered and rejected a substantially similar argument In the January
5, 2004 Opinion and Order, I decided that at least some of the plaintiffs
knew of the allegedly fraudulent rental charges in November 1998 when
they brought an Article 78 challenge to the New York City Department of
Housing Preservation and Development decision to grant defendants'
request for a rental increase. The Article 78 proceeding addressed the
very same issue of room over-count, which plaintiffs claimed constituted
the RICO violations in the instant matter, and therefore plaintiffs' RICO
claim accrued in November 1998.
The cases plaintiffs cite in their motion for reconsideration do not
compel a different result. First, the cases upon which plaintiffs rely
are not controlling law since all but two of the cases were
decided by other circuit courts of appeal or district courts outside the
Second Circuit. E.g. Jones v. Childers, 18 F.3d 899
(11th Cir. 1994) (11th Circuit applying Florida law). Second, even if
these cases were considered persuasive authority which, it should
be noted, is
not the standard under Rule 6.3 the decisions simply do not
pertain to the matter at hand because they involve cases where the
plaintiffs did not have actual notice of their injury. E.g., Forbes
v. Eagleson, 228 F.3d 471, 485 (3d Cir. 2000) (finding that
published reports and articles on defendant union director's fraudulent
activities were sufficient to provide notice to plaintiffs of their
alleged RICO injury); Riddell v. Riddell Washington Corp.,
866 F.2d 1480, 1491 (D.C. Cir. 1989) (noting that the district
court improperly decided that the statute of limitations began when
plaintiff had inquiry notice of his RICO injury because D.C. Circuit
law required evidence of actual knowledge when there were allegations
of fraudulent concealment); Conmar Corp. v. Mitsui & Co.,
858 F.2d 499, 504 (9th Cir. 1988) (deciding that limited media coverage,
the indictment of defendant's employee, and the filing of a civil
antitrust suit by a competitor were insufficient to establish that
plaintiff was on notice of an antitrust injury). Neither inquiry nor
constructive notice is an issue in this case because I decided that at
least some of the plaintiffs had actual notice of their alleged
RICO injury in November 1998.
The only Second Circuit decision to which plaintiffs point is similarly
inapposite because it addressed the question of whether summary judgment
was appropriate. Robertson v. Seidman & Seidman,
609 F.2d 583, 593 (2d Cir. 1979) (ruling that summary judgment was
inappropriate because the question of whether plaintiff exercised due
diligence to discover his securities fraud injury was a question of
fact to be determined by a jury). Thus, this portion of plaintiffs'
argument is without merit.
Plaintiffs' second contention is that defendants' act of fraudulent
concealment tolled the statute of limitations because defendants owed
them a fiduciary duty. Plaintiffs, however, have pointed to no legal
authority establishing a fiduciary relationship between the parties other
than a blanket citation to the New York State Private Housing Finance
Law. Moreover, plaintiffs' equitable tolling argument does not reflect
the law of this circuit Under Second Circuit law, equitable tolling is
available when plaintiffs establish that: (1) the defendant wrongfully
concealed related material facts; (2) the concealment prevented the
plaintiff's discovery of injury within the limitations period; and (3)
plaintiff exercised due diligence in pursuing the discovery of alleged
wrong during the period plaintiff seeks to have tolled. Tho Dinh
Tran v. Alphonse Hotel Corp., 281 F.3d 23, 30 (2d Cir. 2002). The
plaintiffs have not satisfied their burden of
affirmatively establishing any one of the elements, no less all
three required for the doctrine of equitable tolling to apply, id at 31,
nor could they since they had actual knowledge of their injury in
November 1998. Accordingly, plaintiffs' cannot avail themselves of
equitable tolling to reinstate their complaint.
Finally, plaintiffs' request for allowance to amend their complaint
pursuant to Federal Rule of Civil Procedure 15(a) must be denied because
I have not altered my decision dismissing their complaint.
For the foregoing reasons, plaintiffs' motion for reconsideration and
request for leave to amend their complaint are denied. The Clerk of the
Court is instructed to close this and any ...