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Ponterio v. Kaye

April 5, 2007

FRANK V. PONTERIO, PLAINTIFF,
v.
JUDITH S. KAYE, CHIEF JUDGE OF THE STATE OF NEW YORK, JONATHAN LIPPMAN, CHIEF ADMINISTRATIVE JUDGE OF THE COURTS, JOHN T. BUCKLEY, PRESIDING JUSTICE OF THE APPELLATE DIVISION, FIRST DEPARTMENT, A. GAIL PRUDENTI, PRESIDING JUSTICE, APPELLATE DIVISION, SECOND DEPARTMENT, ANTHONY V. CARDONA, PRESIDING JUSTICE, APPELLATE DIVISION, THIRD DEPARTMENT, EUGENE F. PIGOTT, JR., PRESIDING JUSTICE, APPELLATE DIVISION, FOURTH DEPARTMENT, AND THE ADMINISTRATIVE BOARD OF THE COURTS, DEFENDANTS.



The opinion of the court was delivered by: Hon. Harold Baer, Jr., District Judge

OPINION AND ORDER

Plaintiff Frank Ponterio ("Plaintiff" or "Ponterio") brings this motion for reconsideration, pursuant to Local Civil Rule 6.3, of this Court's January 22, 2007 decision granting the motion of Defendants Judith Kaye, Jonathan Lippman, et. al. (collectively, "Defendants") to dismiss Ponterio's "denial of access to courts" and First Amendment claims brought under 42 U.S.C. § 1983. See Ponterio v. Kaye, 2007 U.S. Dist. LEXIS 4105 (S.D.N.Y. Jan. 22, 2007).

Because Ponterio's arguments for reconsideration provide nothing new, Ponterio's motion for reconsideration is denied.

I. BACKGROUND

Familiarity with the facts of Ponterio's complaint, and those facts judicially noticed, is presumed. See Ponterio v. Kaye, 2007 U.S. Dist. LEXIS 4105, at *4-14.

A. Dismissal of Ponterio's "Denial of Access" Claim

Ponterio initially alleged that the Administrative Board of the Courts' failure to set forth reasons for its 2003 denial of his application for recertification constituted a "denial of access to the courts," in violation of the Fifth and Fourteenth Amendments, in that it wholly prejudiced his initial New York state court lawsuit to the extent that he was effectively denied the chance to bring the lawsuit at all.

I rejected Ponterio's argument and dismissed his claim. I noted that "the Second Circuit has recognized a right of access to the courts, stemming from the First Amendment right to petition for redress, the Privileges and Immunities Clause of Article IV, section 2, and the Due Process Clauses of the Fifth and Fourteenth Amendments." Ponterio v. Kaye, 2007 U.S. Dist. LEXIS 4105, at *31, citing Monsky v. Moraghan, 1997 U.S. App. LEXIS 36158, at *11 (2d Cir. 1997). Typically, I noted, "denial of access" claims fall into one of two categories. "First, litigants may claim that 'systemic official action frustrates a plaintiff or plaintiff class in preparing and filing suits.'" Ponterio v. Kaye, 2007 U.S. Dist. LEXIS 4105, at *31, citing Christopher v. Harbury, 536 U.S. 403, 413 (2002) ("Harbury"). "Thus, prisoners have sued for access to a law library, n21 or indigent plaintiffs have sued for waivers of filing fees." Id., citing Harbury, 536 U.S. 403, 413. Secondly, litigants may claim that they have irrevocably lost the ability to file a lawsuit, typically because of a massive governmental cover-up denying plaintiffs the ability to gather evidence.*fn1 Id., citing Harbury, 536 U.S. 403, 413.

However, I held that because Ponterio ably filed his state court lawsuit, Defendants caused Ponterio no "actual injury" (i.e. actions that hindered his ability to file a legal claim). Ponterio v. Kaye, 2007 U.S. Dist. LEXIS 4105, at *33-34. Although Ponterio filed his state court lawsuit without the benefit of the Board's reasons for his denial, the Board's failure to provide its reasoning did not itself violate due process. Id., citing Marro v. Bartlett, 389 N.E.2d 808 (N.Y. 1979) (retired New York state Justice had no due process rights to reasons for denial of his recertification).*fn2 A fortiori, if the Board's failure to provide its reasoning did not violate due process, the Board's failure to do so did not establish the type of egregious or systemic violation of due process that is typically required for a "denial of access" claim. Id.

b. Ponterio's Motion for Reconsideration

Ponterio now moves this Court to reconsider its prior decision primary on two grounds. First, Ponterio notes correctly that he brought a "denial of access" claim, not a due process claim -- and thus, he argues, Marro does not mandate dismissal of his "denial of access claim." Secondly, Ponterio argues that the Harbury Court did not explicitly circumscribe "denial of access" claims into the two above-mentioned descriptive categories (i.e. systemic official action or massive governmental cover-ups).*fn3

II. STANDARD OF REVIEW

The decision to grant or deny a motion for reconsideration is within the "sound discretion" of the district court. See, e.g., Davis v. The Gap, Inc., 186 F.R.D. 322, 324 (S.D.N.Y. 1999). To succeed on a motion for reconsideration under Local Civil Rule 6.3, a party "must demonstrate that the Court overlooked controlling decisions or factual matters that were put before it on the underlying ...


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