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Devinsky v. Kingsford

July 10, 2008

ORRIN DEVINSKY, PLAINTIFF,
v.
DANIEL KINGSFORD, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Honorable Paul A. Crotty, United States District Judge

Defendant Daniel Kingsford moves for reconsideration of the Court's Order of March 31, 2008 ("Order"), which denied his motion for summary judgment: (1) the Court overlooked Plaintiff's agreement that certain claims against Kingsford cannot survive summary judgment; and (2) the fraud claim against Kingsford concerning the 75th Street loan agreement should be dismissed.

Plaintiff Orrin Devinsky also moves for reconsideration of the Order, which granted summary judgment in favor of the Executor Defendants, Michael Blumenthal and John Hoey, and dismissed them from this case in their individual capacities.

For the following reasons, Kingsford's motion for reconsideration is granted in part and denied in part and Devinsky's motion for reconsideration is denied.

ORDER

SUMMARY OF FACTS

The facts are stated in full in the Court's Order of March 31, 2008. See Devinsky v. Kingsford, et al., No. 05 Civ. 2064 (PAC), 2008 WL 857525 (S.D.N.Y. Mar. 31, 2008). Familiarity with the facts and the prior opinion is assumed.

DISCUSSION

I. Motion for Reconsideration

It is well-settled that "[r]econsideration of a court's previous order is an 'extraordinary remedy to be employed sparingly in the interests of finality and conservation of scarce judicial resources.'" Parrish v. Sollecito, 253 F. Supp. 2d 713, 715 (S.D.N.Y. 2003) (citing In re Health Mgmt. Sys. Inc. Secs. Litig., 113 F. Supp. 613, 614 (S.D.N.Y. 2000)); see also 11 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2810.1 (2d ed. 1995). Under Rule 59(e), there are three grounds for reconsideration: (1) an intervening change in law; (2) new evidence; and (3) the need to correct a clear error of law or prevent manifest injustice. Doe v. N.Y. City Dep't of Soc. Servs., 709 F.2d 782, 789 (2d Cir. 1983). The standard for granting a motion for reconsideration "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. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995). In this district, Local Rule 6.3 governs motions for reconsideration, and must be "strictly applied so as to avoid repetitive arguments on issues that have been considered fully by the Court." Dellefave v. Access Temporaries, Inc., No. 99 Civ. 6098 (RWS), 2001 WL 286771, at *1 (S.D.N.Y. Mar. 22, 2001).

ANALYSIS

I. Kingsford's Motion for Reconsideration

Kingsford seeks reconsideration on two grounds: (1) Devinsky agreed not to pursue certain claims against him and those claims should not survive summary judgment; and (2) the fraud claim against him concerning the 75th Street loan agreement should be dismissed because Devinsky failed to identify any false representation of fact by Kingsford concerning that agreement.

a. Motion to Reconsider Claims Conceded by Devinsky

Kingsford first moves to dismiss four claims*fn1 against him because Devinsky agreed not to pursue those claims and because Devinsky does not contest Kingsford's ...


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