United States District Court, S.D. New York
April 20, 2005.
ALEC NAIMAN, Plaintiff,
NEW YORK UNIVERSITY HOSPITALS CENTER, Defendant.
The opinion of the court was delivered by: ROBERT PATTERSON, Senior District Judge
OPINION AND ORDER
Alan J. Rich, Esq. ("Rich") moves pursuant to Rule 59(e) of the
Federal Rules of Civil Procedure, for reconsideration of this
Court's January 7, 2005 Opinion and Order, familiarity with which
is assumed, which granted Alec Naiman's ("Naiman") motion for an
order directing Rich to pay Naiman the balance of the moneys due
and owing to Naiman under a 1994 retainer agreement. See
Naiman v. NYU Hospitals Center, 351 F. Supp. 2d 257 (S.D.N.Y.
2005). For the reasons that follow, this Court concludes that
Naiman's motion was properly granted and denies Rich's motion for
I. LEGAL STANDARD
Motions for reconsideration pursuant to Rule 59(e) of the
Federal Rules of Civil Procedure are governed by the same
standards as those governing motions under Rule 6.3 of the Local
Civil Rules of the U.S. District Courts for the Southern and
Eastern Districts of New York ("Local Rule 6.3"). See
Candelaria v. Coughlin, 155 F.R.D. 486, 491 (S.D.N.Y. 1994).
Under Local Rule 6.3, a party seeking reconsideration must set
forth "concisely the matters or controlling decisions which
counsel believes the court has overlooked." Local Civ. R. 6.3. To
prevail on a motion for reconsideration, a party "must demonstrate that the Court overlooked controlling decisions
or factual matters that were put before it on the underlying
motion." Eisemann v. Greene, 204 F.3d 393, 395 n. 1 (2d Cir.
2000) (per curiam) (citation omitted); see also Shrader v. CSX
Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995)
("[R]econsideration 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.").
Local Rule 6.3 should 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 (RWS), 2001 U.S. Dist. LEXIS 3165, at *2
(S.D.N.Y. Mar. 22, 2001). In addition, on a motion for
reconsideration, a party may not "advance new facts, issues, or
arguments not previously presented to the court." Morse/Diesel,
Inc. v. Fidelity & Deposit Co. of Md., 768 F. Supp. 115, 116
(S.D.N.Y. 1991); see also Polsby v. St. Martin's Press, Inc.,
No. 97 Civ. 690 (MBM), 2000 U.S. Dist. LEXIS 596, at *2 (S.D.N.Y.
Jan. 18, 2000) (noting that on a motion for reconsideration
"affidavits are not permitted inasmuch as no new facts may be
adduced"). A motion for reconsideration "is not a substitute for
appeal." RMED Int'l, Inc. v. Sloan's Supermarkets, Inc.,
207 F. Supp. 2d 292, 296 (S.D.N.Y. 2002) (citation omitted). Rather, the
purpose of Local Rule 6.3 is 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." Carolco Pictures, Inc. v. Sirota,
700 F. Supp. 169, 170 (S.D.N.Y. 1988) (citation omitted). II. DISCUSSION
In an attempt to explain why he failed to comply with the rules
governing contingency fee agreements, Rich's motion contains
numerous factual allegations supported by declarations that were
not previously before the Court. These factual allegations and
supporting documents cannot be considered on this motion for
reconsideration because they were not put before the Court on the
underlying motion. See, e.g., Morse/Diesel, Inc.,
768 F. Supp. at 116 (a party may not "advance new facts, issues, or
arguments not previously presented to the court"). Accordingly,
these new facts and the arguments they support do not provide
grounds for reconsideration.
Rich also asserts that his motion for reconsideration should be
granted to allow the parties to engage in additional discovery.
In particular, Rich suggests that both he and Naiman submit to a
polygraph examination to determine whether they did in fact reach
a supplemental fee agreement setting Rich's fee at fifty percent
of the settlement proceeds. Rich's request for additional
discovery is not an appropriate basis for a motion for
reconsideration, however, because Local Rule 6.3 permits such
motions to address "matters or controlling decisions" which the
moving party claims the court has "overlooked." Moreover, even if
such a request was appropriate here, the discovery Rich describes
would not change this Court's January decision. For the purposes
of that decision, the Court concluded that even if Rich and
Naiman had reached a supplemental fee agreement setting Rich's
fee at fifty percent, such an agreement was not enforceable based
on the undisputed fact that Rich did not provide a writing to
Naiman until over seven months after the alleged agreement. Rich also suggests that the Court overlooked a number of
factual allegations that were already presented to it on the
underlying motion. For example, Rich re-states that he complied
with some requirements of D.R. 2-106(D), that there was no
conflict of interests between Naiman and him, that Naiman was
fully satisfied with his share of the settlement money, and that
Naiman did not object to the fifty percent fee in writing until
approximately four months after he received the check from Rich.
However, because the Court fully considered these factual
allegations in its January decision, they do not provide grounds
to grant Rich's motion for reconsideration.
Rich also argues that the Court misinterpreted the evidence
before it and incorrectly found that the supplemental fee
agreement was contingent on the settlement of injunctive relief.
Specifically, Rich claims that the alleged agreement to set his
fee at fifty percent was not a contingent fee agreement because
"the parties and the Court separated out the issues so that once
the monetary damage amount was resolved, the parties would
proceed to negotiate injunctive relief." (Rich's Mem. at 20.)
Even assuming that Rich's recitation of the facts is accurate, it
remains true that the parties did not formally agree to either
the monetary or injunctive relief until the day the parties
executed the consent decree, which was over seven months after
Rich states that he and Naiman agreed to the supplemental fee
agreement. Accordingly, assuming that Rich and Naiman agreed to a
fifty percent fee, the agreement was contingent on an outcome
that was not yet certain and, therefore, Rich was required to
comply with the rules governing contingency fee agreements. See
D.R. 2-106(D), N.Y. Comp. Codes R. & Regs. tit. 22, § 1200.11(d)
(attorney in contingency fee matter must "promptly" provide
client with a writing stating the terms of the agreement);
Revson v. Cinque & Cinque, P.C., 221 F.3d 59, 68-69 (2d Cir. 2000) (expressly agreeing with district
court's ruling that contingent fee matters must be "detail[ed]
for the client in writing" by the retained attorney); Liner
Tech. Inc. v. Hayes, 213 A.D.2d 881, 883, 624 N.Y.S.2d 284, 285
(3d Dep't 1995) ("contingency fee agreement[s] . . . must be in
Rich also claims that this Court incorrectly applied D.R.
2-106(D) in holding that, regardless of whether Rich and Naiman
agreed to set Rich's fee at fifty percent, the alleged agreement
was not enforceable because Rich failed to "promptly" provide
Naiman with a writing stating the terms of the agreement as
required by D.R. 2-106(D).*fn1 Rich relies on In re Abreu,
168 Misc. 2d 229, 638 N.Y.S. 2d 548 (Surr. Ct. Bronx Co. 1996),
to support his argument that the requirement for a prompt writing
established by D.R. 2-106(D) is not absolute. In Abreu, a law
firm failed to comply with a different rule governing contingency
fee agreements, N.Y. Codes R. & Regs. tit. 22, § 603.7(a), which
states that attorneys who are retained on a contingency fee basis
in certain types of actions "shall" file a retainer statement
with the Office of Court Administration of the State of New York
within 30 days of the date of any such retainer or within 15 days
if retained by another attorney on a contingency fee basis. After
noting that there was no dispute that the client had signed a
retainer agreement, the court found that the law firm failed to
timely file the retainer agreement because it inadvertently
placed the document in its files rather than mailing it. Abreu,
168 Misc. 2d at 232, 234. Thus, the court held that the firm had
established a reasonable excuse for its failure to comply with
the filing requirements so that, standing alone, this failure did not
preclude it from receiving compensation for its services. Id.
Here, however, it is undisputed that Naiman did not sign a
retainer agreement setting Rich's contingency fee at fifty
percent, nor is there any dispute that Rich failed to provide
Naiman a writing stating the terms of the alleged supplemental
fee agreement until seven months after he claims it was made.
Moreover, aside from documents that Rich has provided for the
first time on this motion, he has not provided any basis for this
Court to excuse his failure to comply with D.R. 2-106(D). Thus,
inasmuch as Abreu involved a different disciplinary rule and a
different factual scenario from the instant matter, it does not
constitute a "controlling decision?" that this Court
"overlooked" in its January decision.
Rich next argues that the alleged supplemental fee agreement is
an enforceable oral modification to the original retainer
agreement because he relied and acted on the modified agreement.
Specifically, Rich states that, based on the supplemental
agreement to increase his fee to fifty percent, he chose not to
seek a fee award under the federal fee shifting provisions and he
ended negotiations with New York University Hospitals Center even
though he believed further negotiations would have brought about
a higher settlement award. (Rich's Mem. at 17.) This argument was
not before the Court on the initial motion; therefore, it cannot
provide the basis for a motion for reconsideration. Nonetheless,
Rich has not demonstrated that after entering into the alleged
oral modification either his or Naiman's conduct was "not
compatible with any option in the written agreement." See Rose
v. Spa Realty Assocs., 42 N.Y.2d 338, 345 (N.Y. 1977)
(explaining that oral modifications to written agreements that
include a proscription against oral modifications may be proven by conduct only if the
conduct is "unequivocally referable to the oral modification").
In fact, there is no indication that either party's actions were
incompatible with the retainer agreement as written.
Rich alternatively claims that the motion for reconsideration
should be granted because his fee under the supplemental fee
agreement was not "excessive" under D.R. 2-106(B), N.Y. Comp.
Codes R. & Regs. tit. 22, § 1200.11(b). However, this argument
does not provide grounds for reconsideration because this Court
did not find that the supplemental fee agreement was
unenforceable because it was excessive.
Without citing any case law or statutory authority, Rich
briefly argues for the first time that this Court's January
decision finding the alleged supplemental fee agreement
unenforceable will result in "unjust enrichment" for Naiman. This
argument is rejected, however, because a motion for
reconsideration may not advance new arguments not previously
presented to the court.
Lastly, after this motion was fully briefed by the parties,
Rich submitted a letter to the Court calling its attention to a
recent case, Fenderstock & Partners, LLP v. Shapiro, No.
111446/03, 2005 N.Y. Misc. LEXIS 583 (N.Y. Sup. Ct. Mar. 14,
2005), in which an attorney's motion for summary judgment in a
fee dispute was denied because the client demonstrated that he
had objected to the bills for services with sufficient
specificity. Although pertaining to an attorney-client fee
dispute, Fenderstock does not bear on this Court's holding that
the alleged supplemental fee agreement was unenforceable because
it failed to comply with D.R. 2-106(D). Accordingly,
Fenderstock is not a "controlling decision" that the Court has
overlooked. III. CONCLUSION
For the reasons stated above, Rich's motion for reconsideration
of this Court's January 7, 2005 Opinion and Order is denied.
IT IS SO ORDERED.