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March 9, 2004.

YVETTE PHARR, et al., Plaintiffs -against- EVERGREEN GARDENS, INC., and GRENADIER REALTY CORP., Defendants

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 Page 2 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 incorrect Id

  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 Page 3 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 Page 4 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 ...

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