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Chaney v. Koupash

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK


August 11, 2006

TODD CHANEY; ERIC DELEON, PLAINTIFFS,
v.
TIMOTHY KOUPASH, CORRECTIONAL OFFICER; ET AL., DEFENDANTS.

The opinion of the court was delivered by: Lawrence E. Kahn, U.S. District Judge

I. Background

Presently before the Court is a Motion for Reconsideration filed by Todd Chaney ("Chaney" or "Plaintiff").*fn1 Dkt. No. 105. Plaintiff's Motion seeks reconsideration of a portion of this Court's Order dated February 2, 2006.*fn2 Dkt. No. 104. Defendants have not filed any opposition to this Motion.

II. Plaintiff's Motion

A. The Standard

A court may justifiably reconsider its previous ruling if: (1) there is an intervening change in the controlling law; (2) new evidence not previously available comes to light; or (3) it becomes necessary to remedy a clear error of law or to prevent manifest injustice. Delaney v. Selsky, 899 F. Supp. 923, 925 (N.D.N.Y. 1995) (McAvoy, C.J.) (citing Doe v. New York City Dep't of Soc. Servs., 709 F.2d 782, 789 (2d Cir.), cert. denied, 464 U.S. 864 (1983)).

B. Discussion

Plaintiff seeks reconsideration of that portion of the February Order that granted additional time for Plaintiffs to serve Defendant L. Brockway. The reason for Plaintiff's request is that two Defendants remain unserved -- L. Brockway and Thomas Koupash. Plaintiff states that he requested additional time to serve all unserved Defendants, and that the February Order did not address Defendant Koupash.

The Court notes that summonses were issued for all Defendants on March 24, 2005. The summons for L. Brockway was returned unexecuted due to his retirement from State service. Dkt. No. 34. After intervention by the Clerk, the Department of Corrections Office of Counsel agreed to accept service on behalf of L. Brockway. Dkt. No. 90. Another summons was issued on October 31, 2005, and no response was received by the Court. A summons for L. Brockway was re-issued on August 8, 2006. No response has been received by the Court. With respect to Defendant Koupash, the Court has received no response from the United States Marshals or the Defendant after the initial Summons was issued. The Court notes that the Clerk re-issued a Summons for Defendant Koupash on July 20, 2006. No response has been received by the Court.

In light of the foregoing, Plaintiff's Motion for Reconsideration will be granted and Plaintiff will be granted additional time to perfect service on Defendants L. Brockway and Thomas Koupash. Plaintiffs are reminded that it is their obligation to provide the Clerk or the United States Marshals with any documents they may require in order to perfect service on the Defendants.

WHEREFORE, it is hereby

ORDERED, that Plaintiff's Motion for Reconsideration (Dkt. No. 105) is GRANTED to the extent that Plaintiff shall have 120 days from the filing date of this Order to perfect service on Defendants L. Brockway and Thomas Koupash, and it is further

ORDERED, that the Clerk serve a copy of this Order on the parties. I

T IS SO ORDERED.


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