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August 2, 2005.

NEW YORK CITY ECONOMIC DEVELOPMENT CORPORATION (EDC), ANDREW M. ALPER, President of EDC; JERYLN PERINE, Commissioner, Department of Housing Preservation and Development; CITY OF NEW YORK; DANIEL DOCTOROFF, Deputy Mayor, City of New York; and MICHAEL BLOOMBERG, Mayor, City of New York, Defendants.

The opinion of the court was delivered by: DEBORAH BATTS, District Judge


On May 23, 2005, this Court granted summary judgment in favor of Defendants on Plaintiff Women's Interart Center's (WIC) two § 1983 claims and dismissed WIC's remaining state law causes of action for lack of subject matter jurisdiction. (See Opinion, dated May 23, 2005 [Op.] at 91-92). WIC now moves pursuant to Federal Rule of Civil Procedure 59 (e) and Local Civil Rule 6.3 for the Court to reconsider and vacate (1) its entry of summary judgment on WIC's First Amendment retaliation claim and (2) its decision to convert Defendants' Rule 12 (b) (6) motion to dismiss into a motion for summary judgment.

The Court presumes familiarity with its previous Opinion and therefore will not reiterate the factual background of the case. "The standards governing a motion to alter or amend judgment pursuant to Rule 59 (e) and motions for reconsideration or reargument pursuant to Local Rule 6.3 are the same." Word v. Croce, No. 00 Civ. 6496, 2001 WL 755394, at * 2 *S.D.N.Y. July 5, 2001). The standard for granting a motion to reconsider "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. CSC Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995); see also Range Road Music, Inc. v. Music Sales Corp., 90 F.Supp.2d 390, 392 (S.D.N.Y. 2000) (holding that a motion for reconsideration "is appropriate only where the movant demonstrates that the Court has overlooked 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.").

  Furthermore, a motion for reconsideration is not one in which a party may reargue "those issues already considered when a party does not like the way the original motion was resolved." In re Houbigant, Inc., 914 F.Supp. 997, 1001 (S.D.N.Y. 1996). Thus Local Rule 6.3 should be "narrowly construed and strictly applied" to avoid repetitive arguments already submitted to the Court. National Congress for Puerto Rican Rights v. City of New York, 191 F.R.D. 52, 53 (S.D.N.Y. 1999) (citation omitted). Moreover, the parties "may not address facts, issues or arguments not previously presented to the Court," U.S. Titan v. Guangzhou Zhen Hua Shipping Co., Ltd., 182 F.R.D. 97, 100 (S.D.N.Y. 1998) (citations omitted), because a motion to reconsider should never act "as a substitute for appealing from a final judgment." Bonnie & Co. Fashions, Inc. v. Bankers Trust Co., 170 F.R.D. 111, 113 (S.D.N.Y. 1997) (citation omitted).

  WIC makes three arguments as to why the Court should reconsider its granting of summary judgment on WIC's First Amendment retaliation claim. First, WIC contends that in concluding "there was no evidence in the record suggesting that [Defendant] Perine herself was even aware of WIC's lawsuits and other formal grievances against the City/HPD over the Buildings disrepair prior to 2002," the Court overlooked Perine's own deposition testimony, which, WIC claims, raises a "material factual dispute" as to whether Perine was aware of WIC's protected activity under the First Amendment's Petition Clause. (Memorandum of Law in Support of Plaintiff's Motion for Reconsideration ["Pl. Mem."] at 2-3). Specifically, WIC cites to the following exchanges from page 38 of Perine's Deposition, which was attached to her affidavit submitted in conjunction with Defendants' original motion to dismiss, and page 34 of such transcript, which was not submitted by either side in conjunction with Defendants' motion to dismiss:
Q It was your understanding that the only justification that was provided by [WIC] for the rent arrears involved maintenance issues in the building, and not the rent level itself, is that right?
A That's what I recall.
(Perine Dep. at 38; Pl. Mem. at 3).
Q When, if at all, did you first learn that [conditions and problems in the Building] was the reason that [WIC was] not paying rent, at least in part?
A Well, that was certainly stated by somebody in that meeting. I mean, I don't remember who exactly made the case, but somebody certainly did make that case in the meeting with Lillian [sic] Barrios-Paoli.
Q Did you consider HPD tenants who withhold rent because of problems with conditions in their buildings to be, I think the word you used was incompetent?
MS SHAPIRO: Objection.
A I would consider commercial tenants, to be so actually, yes, because they receive a net lease and we were not — our involvement with commercial tenants is very different than our involvement with residential tenants.
(Perine Dep. at 34; Pl. Mem. at 3).

  WIC's argument is unpersuasive for two reasons. First, because page 34 of Perine's deposition was not included in either side's submissions on Defendants' motion for summary judgment, the Court may not now consider it in ruling on WIC's motion to reconsider. See U.S. Titan, 182 F.R.D. at 100. Further, the fact that Perine learned at the 1997 settlement meeting that WIC withheld rent specifically because of the Building's disrepair does not by itself suggest that Perine was also aware of WIC's earlier lawsuits against and complaints to HPD over the Building's disrepair, which were the only activities actually constituting protected conduct under the Petition Clause.*fn1 Thus, the above-cited deposition testimony does not alter the Court's conclusion that Perine was not aware of WIC's protected First Amendment activities prior to 2002.*fn2 WIC also argues that in concluding "there was nothing procedurally or substantively irregular about HPD's refusal to commence the process of evicting the recalcitrant [Building] tenants without an MOU in place," the Court overlooked numerous citations to documentary evidence and sworn testimony of City employees contained in ¶¶ 65-90 of the Lewitin Declaration, which allegedly show that Perine and HPD refused to evict these tenants "while knowing full well that the [Building sale] could not be consummated until they did so and conceding that it was there duty to do so." (Pl. Mem. at 4-5). However, HPD and Perine's knowledge that the Building sale could not close without completion of these evictions has nothing to do with whether or not HPD in fact had a longstanding policy of not relocating tenants from publicly-owned buildings without an MOU in place with the public entity that owns the building. Moreover, while many of the aforementioned documents and deposition excerpts do suggest that HPD and Perine knew the responsibility for evicting recalcitrant Building tenants ultimately fell to HPD, none of these citations contradict HPD attorney Matthew Shafit's statement in an October 2000 email to then- EDC President Robert LaPalme that HPD typically required MOU's with the public entities for whom it did tenant relocation work. (Lewitin Decl., Ex. 41). Thus, the aforementioned citations do not create a reasonable inference that Perine and HPD's refusal to begin eviction proceedings without an MOU was in any way procedurally or substantively irregular.

  Finally, WIC argues the Court's finding that Perine's 2002 alleged bad acts were not causally connected to the decision to terminate the IRSC Project "wholly overlooks "Perine's raft of actions preventing the relocation or eviction of the recalcitrant tenants." (Pl. Mem. at 5-6). However, this argument is based on a misreading of the Court's May 23, 2005 Opinion, because, as discussed above, the Court dealt with HPD and Perine's foot-dragging on tenant evictions earlier by concluding that there was nothing procedurally or substantively irregular about the delays. In contrast, the 2002 bad acts to which the Court was referring were Perine's alleged denigration of the IRSC Project and WIC to EDC and the Deputy Mayor's Office, her alleged participation in the decision to terminate the Project, and Defendants' alleged creation of new Project Closing conditions, and WIC does not now point to any evidence before the Court at the time of its decision which tends to show that these alleged bad acts actually caused the termination of the IRSC Project. In sum, WIC has failed to provide sufficient grounds for the Court to reconsider its granting of summary judgment in Defendants' favor on WIC's First Amendment retaliation claim.

  In the alternative, WIC argues that the Court should not have converted Defendants' Rule 12(b)(6) motion to dismiss into a motion for summary judgment in the first place. Specifically, WIC contends that Defendants' submission of evidentiary material in conjunction with their motion to dismiss was not enough to put WIC on notice that conversion to summary judgment was likely. (Pl. Mem. at 7). Because Defendants based their motion in part on F.R.C.P. 12(b)(1), which typically permits court to consider evidence outside of the pleadings, and because Rule 12(b)(1) motions cannot be converted into motions for summary judgment, WIC argues that it was entirely reasonable to believe that its own evidentiary submissions "were limited to establishing subject matter jurisdiction" rather than the legal sufficiency of its First Amendment and Equal Protection Claims, which was the issue presented by Defendants' Rule 12(b)(6) motion that was converted into a motion for summary judgment. (Id. at 6-7).

  However, in making this lack of notice argument, it is WIC who overlooks an important fact in the record and an important legal principle governing Rule 12(b)(1) motions to dismiss. First, the Court itself expressly put WIC on notice of the possibility of conversion of Defendants' motion to dismiss into a summary judgment motion when, at the June 19, 2003 hearing on WIC's application for a temporary restraining order, it told the parties that it was ordering expedited discovery "so that the motion that [Defendants] make will end up being a motion for summary judgment." (Transcript of proceedings held on June 19, 2003, at 40-41). Further, as the Court emphasized in its May 23, 2005 Opinion, when a Rule 12(b)(1) motion focuses on the substantiality of the federal causes of action, the court considering the motion "should examine only `the complaint on its face, without resort to extraneous matter." (Op. at 58-59 (citing Giulini v. Blessing, 654 F.2d 189, 192 (2d Cir. 1981); Hagans v. Levine, 415 U.S. 528, 539-41, 94 S.Ct. 1372, 39 L.Ed.2d 577 (1974)). Thus, the only reasonable conclusion for WIC to draw from Defendants' submission of evidentiary materials in connection with their motion to dismiss was that such materials concerned the legal sufficiency of WIC's federal claims, which is a Rule 12(b)(6) issue, and, as such, created "the possibility that the motion would be converted into one for summary judgment." In re G&A Books, Inc., 770 F.2d 288, 295 (2d Cir. 1985). WIC's lack of notice argument is therefore without merit. Accordingly, for the foregoing reasons, WIC's motion for the Court to reconsider and to vacate or amend its May 23, 2005 Opinion is DENIED in its entirety.

  SO ...

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