The opinion of the court was delivered by: Charles J. Siragusa United States District Judge
This is an action pursuant to the Fair Housing Act of 1968 ("FHA") as amended, 42 U.S.C. § 3601 et seq., and the New York Human Rights Law ("NYHRL"), Executive 1 Law § 290 et seq. Now before the Court are the following motions: 1) defendant Maye's motion [#33] for re-argument or clarification of the Court's Decision and Order [#32] filed on November 3, 2006; and 2) defendant Jones's motion [#35] for reconsideration of that Decision and Order. For the reasons that follow, the applications are granted in part and denied in part.
The facts of this case were set forth in detail in the Court's prior Decision and Order, and need not be repeated in their entirety. It is sufficient to note the following facts. Plaintiff alleged in her complaint, inter alia, that defendants discriminated against her on the basis of her sex, by creating a hostile environment over a period of years, and by committing quid pro quo harassment. Plaintiff alleged, for example, that defendants evicted her from her apartment because she refused the sexual advances of defendant Marvin Maye. Plaintiff also alleged in her complaint, however, that defendants obtained a judgment of eviction against her based upon her non-payment of rent. The Answers filed by defendants in this action did not plead the affirmative defenses of collateral estoppel or statute of limitations. A Scheduling Order issued by the Honorable Jonathan W. Feldman, United States Magistrate Judge, on August 16, 2005, directed, inter alia, that "all motions to join other parties and to amend the pleadings" be filed by September 30, 2005, and that all factual discovery be completed by March 13, 2006. The Scheduling Order further stated: "No extension of the above cutoff dates will be granted except upon written application, made prior to the cutoff date, showing good cause for the extension." (Emphasis in original). Defendants never moved to amend their pleadings prior to September 30, 2005.
Judge Feldman later extended the discovery deadline to May 15, 2006, and directed that all dispositive motions be filed by August 9, 2006. (See, Amended Scheduling Order [#11]). Judge Feldman subsequently issued a Second Amended Scheduling Order [#12] on May 5, 2006, in which he further extended the deadline for discovery to July 17, 2006, and the deadline for dispositive motions to October 10, 2006. However, Judge Feldman never extended the deadline for filing motions to amend the pleadings, nor did the parties ever request such an extension.
New counsel appeared for defendant Jones on June 20, 2006, and for defendant Mayes on June 23, 2006. Defendants subsequently filed dispositive motions based, in part, on the affirmative defenses of collateral estoppel and statute of limitations. As part of those applications, defendants sought permission to amend their pleadings to include those affirmative defenses. However, this Court denied the applications, explaining:
[Defendants] contend that they have demonstrated good cause for seeking amendment of their answers beyond the deadline imposed by Judge Feldman, since new counsel was only recently retained. While the Court is sympathetic to new counsel in this regard, they are bound by the actions of their predecessor. To hold otherwise would be to allow a party to manufacture "good cause" at any time simply by switching counsel. Though there is absolutely no suggestion of that occurring here, defendants' motions are denied. (Decision and Order [#32], p. 9). The Court further stated that,
Affirmative defenses are generally waived if not pled as required by Rule 8(c). See, National Market Share, Inc. v. Sterling Nat. Bank, 392 F.3d 520, 526 (2d Cir. 2004) ("If an affirmative defense is neither pled nor tried with the parties' consent, the defense is usually waived.") Consequently, to the extent that defendants are relying on the affirmative defenses of collateral estoppel and statute of limitations, those appear to have been waived. (Id., p. 14, n. 5).
Defendants subsequently filed the subject applications, and in that regard, they essentially make two arguments. First, defendants contend that they should be permitted to assert the affirmative defense of collateral estoppel. In this regard, defendants argue that plaintiff should be collaterally estopped from attempting to prove that her eviction was discriminatory, since the court which granted the judgment of eviction against her did so because of her failure to pay rent. Defendants further contend that plaintiff would not be prejudiced by such an amendment, since her complaint refers to the eviction proceeding. Second, defendants contend that they should be permitted to amend their answers to assert the statute of limitations defense, since they only became aware of a factual basis for the defense as a result of deposing plaintiff on March 27, 2006. Plaintiff opposes the applications. (See, Bressler Aff. [#36]).
The Court construes defendants' motions as being made pursuant to Rule 59(e) of the Federal Rules of Civil Procedure. It is well settled that when making such a motion, the moving party must show that the Court overlooked the controlling decisions or factual matters that were put before the Court in the underlying motion. Nakano v. Jamie Sadock, Inc., No. 98 Civ. 0515, 2000 WL 1010825, at *1 (S.D.N.Y. July 20, 2000); Walsh v. McGee, 918 F.Supp. 107, 110 (S.D.N.Y.1996). However, in addition, "[a] court is justified in reconsidering 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 obvious injustice." See Nnebe v. Daus, No. 06 Civ. 4991, 2006 WL 2309588, at *1 (S.D.N.Y. Aug. 7, 2006). New evidence, for these purposes, must be evidence that "could not have been found by due diligence." Word v. Croce, No. 01 Civ. 9614, 2004 WL 434038, at *4 (S.D.N.Y. March 9, 2004).
These rules are "narrowly construed and strictly applied so as to avoid repetitive arguments on issues that have been considered fully by the court." See Walsh, 918 F.Supp. at 110. Strict application of these rules also "prevent[s] the practice of a losing party examining a decision and then plugging the gaps of the lost motion with additional matters." Polar Int'l Brokerage Corp. v. Reeve, 120 F.Supp.2d 267, 268-69 (S.D.N.Y. 2000). The moving party may not use a motion for reconsideration to advance new facts, arguments, or theories that were available but not previously presented to the Court. See Graham v. Sullivan, No. 86 Civ. 163, 2002 WL 31175181, at *2 (S.D.N.Y. Sept. 23, 2002); Leonard v. Lowe's Home Ctrs., Inc., No. 00 Civ. 9585, at *2 (S.D.N.Y. April 12, 2002).
U.S. v. Billini, No. 99 CR. 156(JGK), 2006 WL 3457834 at *1 (S.D.N.Y. Nov. 22, 2006). A district court's decision to deny a motion under Rule 59(e) is reviewed on appeal for abuse of discretion. See Munafo v. ...