The opinion of the court was delivered by: Trager, J.
Both parties move for reconsideration of the March 30, 2006 Memorandum and Order granting in part and denying in part defendants' motion for summary judgment. Cornett v. Brown, No. 04-cv-0754, 2006 WL 845568, at *17 (E.D.N.Y. March 30, 2006) (the "March 30 Order"). Plaintiff moves to restore his claims against Officers Erdman, Miller and the City of New York ("the City") for illegal eviction, and the claims against Lieutenant White and Officer Santiago for malicious prosecution. Defendants move for reconsideration of the denial of summary judgment as to Lieutenant White and Officer Linden, and provide additional affidavits to support their motion.
The facts of this case, which were addressed in detail in the March 30 Order, will only be revisited to the extent necessary to decide the two pending motions. The facts described are undisputed unless otherwise stated. Plaintiff was engaged in a dispute with a third party, Richard Simon ("Simon"), also known as Richard Anglin, over an apartment the two of them shared in Queens. Cornett, 2006 WL 845568, at *1-2. While neither plaintiff nor Simon owned the apartment, plaintiff had previously occupied the premises with consent of the owner. Id. Plaintiff then allowed Simon and Simon's godson to move into the apartment. Id. Plaintiff and Simon eventually learned that they would have to leave the apartment because the owner had relinquished ownership of the apartment. Id. at *2.
On the evening of March 1, 2001, after plaintiff demanded that Simon vacate the apartment, an argument ensued and Simon summoned the police, complaining that plaintiff was trespassing. Id. at *2-3. Officers Miller and Erdman arrived at the scene, where both plaintiff and Simon claimed to have rights to the apartment. Id. at *3. The officers determined that Simon had the stronger claim*fn1 and instructed plaintiff to vacate the premises and resolve the issue in landlord-tenant court. Id.
Based in part on these events, plaintiff brought the present action against Officers Miller and Erdman for false arrest and deprivation of property. In the March 30 Order, the court granted Officers Miller's and Erdman's motion for summary judgment on those claims. The false arrest claim was dismissed because it was determined that plaintiff was never arrested during this incident. Id. at *6. The deprivation of property claim was dismissed because plaintiff failed to demonstrate the unavailability of post-deprivation remedies. Id. at *16.
On March 23, 2001, Simon filed a criminal complaint (the "March 23 Complaint") against plaintiff with the New York City Police Department in regard to the March 1, 2001 incident, alleging that plaintiff had trespassed in Simon's apartment. Id. at *4. The complaint report was typewritten on a form and indicates that the complainant, who called himself "Richard Anglin," had walked in to the police station to file the complaint. The complaint report was unsigned -- and in fact, does not contain a signature line or other space for a complainant to sign -- and there was no indication that the police took any independent action on it. Id. at *8. On June 26, 2001, plaintiff was summoned to housing court in Queens to testify against Simon in an action that was being brought by the co-op board of the apartment complex. When plaintiff arrived at the courthouse, Lieutenant White, who was stationed at the 115th Precinct, received a telephone call from Simon. Aff. of Christopher White ("White Aff."), at ¶ 2. Lieutenant White stated in his affidavit that Simon indicated to him that plaintiff, "who was wanted on a criminal trespass complaint," was present at the Queens courthouse. Id. Lieutenant White then instructed Officer Linden to apprehend plaintiff "on the open criminal trespass case and return him to the precinct for processing." Id.; Aff. of Lee Linden ("Linden Aff."), at ¶ 3. Plaintiff was subsequently arrested by Officer Linden at the courthouse and taken to the 115th Precinct, where his arrest was processed by Officer Santiago. Cornett, 2006 WL 845568, at *4. Plaintiff was charged with Second Degree Criminal Trespass based on the complaint filed by Simon in connection with the March 1 incident; the case was eventually dismissed on procedural grounds.*fn2 Id.
There is a factual dispute over the events that occurred once plaintiff was taken to the 115th Precinct. Plaintiff claims that Lieutenant White admitted to him that Officer Linden had no basis for the arrest; that Lieutenant White "yelled" at Officer Linden that the arrest should be voided; and that Lieutenant White stated, nonetheless, that, "because the New York City Housing Law was so complicated, he would authorize the processing anyway." Cornett, 2006 WL 845568, at *9. Lieutenant White categorically denies these allegations and states in his affidavit that he made no such statements to either plaintiff or any other officers in the precinct once plaintiff arrived. White Aff. at ¶ 6-7. Lieutenant White further states that his only contact with the other defendants was when he instructed Officer Linden to apprehend plaintiff and later place him in a holding cell, and when he instructed officer Santiago to process the arrest. Id. at ¶ 4-5.
Plaintiff also alleges that while he was in custody, Officer Linden stated that it was necessary to seize plaintiff in order to prevent him from giving testimony at the housing court proceeding and that the plaintiff's arrest was in retaliation for a complaint plaintiff had earlier filed against Officers Erdman and Miller. Cornett, 2006 WL 845568, at *9. Officer Linden categorically denies these allegations and states in his affidavit that after placing plaintiff in a holding cell, he no longer had any contact with plaintiff or Lieutenant White. Linden Aff. at ¶ 9. Officer Linden further states that he made none of the statements alleged by plaintiff, nor was he aware of the pending complaint against Officers Erdman or Miller or of plaintiff's role in the housing court action. Id. at ¶ 12-13.
Plaintiff's present complaint against Officers Linden and Santiago and Lieutenant White for false arrest, against Officer Santiago for malicious prosecution, against Officer Linden and Lieutenant White for abuse of process, and against Officer Linden for assault and battery stems from the events of June 26, 2001. In the March 30 Order, the court granted Officer Santiago's motion for summary judgment on the ground that she properly relied on information of a commanding officer and, therefore, had probable cause to process plaintiff. Cornett, 2006 WL 845568, at *9, 14. The court also granted Officer Linden's and Lieutenant White's motions for summary judgment on the abuse of process claim on the grounds that (1) under New York law, retaliation is merely an "improper motive" that is insufficient to give rise to an abuse of process claim,*fn3 see Savino v. City of New York, 331 F.3d 63, 77 (2d Cir. 2003) ("[T]he New York Court of Appeals has made clear that '[a] malicious motive alone . . . does not give rise to a cause of action for abuse of process.'") (quoting Curiano v. Suozzi, 63 N.Y.2d 113, 117, 469 N.E.2d 1324, 480 N.Y.S.2d 466, 468-69 (1984)); and (2) plaintiff submitted no evidence that defendant Linden intended to prevent him from testifying in the housing-court proceeding, Cornett, 2006 WL 845568 at *15. The court denied defendants' motion for summary judgment as to plaintiff's false arrest claims against Officer Linden and Lieutenant White stemming from the June 26 arrest and his assault and battery claim against Officer Linden from that same arrest. Officer Linden and Lieutenant White now request reconsideration of the denial of their motion for summary judgment on the false arrest and assault and battery claims.
A motion denominated as a motion for reconsideration, provided that it challenges the prior judgment on the merits, will be treated as either a motion "to alter or amend" judgment under Rule 59(e) or a motion for "relief from judgment" under Rule 60(b). The timing of the motion after the entry of judgment or order determines which rule governs. See Rohlehr v. Brookdale Univ. Hosp. and Med. Ctr., No. 03-CV-3576, 2007 WL 210427, at *2-3 (E.D.N.Y. Jan. 26, 2007). Specifically, if the motion is served within ten days of entry of judgment, the motion falls under Rule 59(e); if it is served after that time, it falls under Rule 60(b). Id. Under Federal Rule 59(e), courts have an "opportunity to correct manifest errors of law or fact, hear newly discovered evidence, consider a change in the applicable law or prevent manifest injustice." U.S. Fid. & Guar. Co. v. Petroleo Brasileiro S.A. -Petrobras, No. 98-CV-3099, 2005 WL 736149, at *1 (S.D.N.Y. Mar. 29, 2005) (citing Word v. Croce, No. 01 Civ. 9614, 2004 WL 434038, at *2 (S.D.N.Y. Mar. 9, 2004)).
A motion for reconsideration "is to be narrowly construed and strictly applied so as to avoid repetitive arguments on issues that have been considered fully by the court." Equal Employment Opportunity Comm'n v. Federal Express Corp., 268 F. Supp. 2d 192, 195 (E.D.N.Y. 2003). Such motions, "generally not favored," United States v. Int'l Bhd. of Teamsters, 247 F.3d 370, 391 (2d Cir. 2001), may not be used ...