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Atlantic Casualty Insurance Co. v. Joney Construction Corp.

July 12, 2008

ATLANTIC CASUALTY INSURANCE COMPANY, PLAINTIFF,
v.
JONEY CONSTRUCTION CORPORATION, BLANCA P. MINAS AND LUIS MINAS A/K/A LUIS MEMORANDUM OF FERNANDO, DEFENDANTS.



The opinion of the court was delivered by: Spatt, District Judge.

DECISION AND ORDER

Presently before the Court is a motion by Atlantic Casualty Insurance Company (the "Plaintiff" or "Atlantic") for an order, pursuant to Federal Rule of Civil Procedure ("Fed. R. Civ. P") 59(e) and Local Rule 6.3 for reconsideration of this Court's December 4, 2007 Memorandum of Decision and Order, Atlantic Casualty v. Joney, No. 06-cv-4031, (E.D.N.Y. Dec. 4, 2007) (the "Order"). In that Order, the Court: (1) denied the Plaintiff's motion for summary judgment; (2) partially granted the Defendant Blanca P. Minas' ("Minas") motion for summary judgment to the extent that the Plaintiff waived its affirmative defense of late notice; and (3) denied the Defendant Minas' motion for summary judgment to the extent it requested additional relief.

I. BACKGROUND

A. Factual Background

The background of this case is set forth in the Court's Memorandum of Decision and Order of December 4, 2007. Familiarity with that decision is assumed.

B. The Present Motion

On December 19, 2007, the Plaintiff moved for reconsideration of this Court's December 4, 2007 decision. The Plaintiff contends that this Court erroneously relied upon First Financial Ins. Co. v. Jetco Contr. Corp., 1 N.Y.3d 64, 68, 801 N.E.2d 835, 769 N.Y.S.2d 459 (2003), in reaching its decision. The Plaintiff claims that "the facts in First Financial are entirely different than those before the Court here," and that this Court overlooked factual matters. Specifically, the Plaintiff contends that in First Financial, the plaintiff wrote directly to the named insured, Jetco, acknowledging a tender by Jetco and the possibility of a late notice defense as to Jetco. The Plaintiff contends that in the present case, it did not recognize a tender by the insured, Joney, and only responded to a tender by a third party, Tomer. The Plaintiff, for the first time, attaches a copy of the letter at issue in the First Financial case.

Further, the Plaintiff, for the first time, contends that if its June 27, 2006 letter to Tomer did in fact acknowledge a claim by Joney, then it must also be considered to have timely denied any claim.

II. DISCUSSION

In its motion papers, the Plaintiff moves for "reconsideration/reargument," citing to Fed. R. Civ. P. 60(b) and Local Rule 6.3. However, the Plaintiff fails to specify the sub-section of Rule 60(b) upon which it relies. Moreover, in its motion, the Plaintiff fails to cite any case law relevant to Rule 60(b) or Local Rule 6.3. However, in its reply brief, the Plaintiff cites, at length, to Rule 59(e) and Local Rule 6.3, apparently abandoning any Rule 60(b) claim. As a result, the Court will review the Plaintiff's motion pursuant to Rule 59(e) and Local Rule 6.3.

A. As To The Motion For Reconsideration

The decision to grant or deny a motion for reconsideration is within the sound discretion of the district court. See Devlin v. Transp. Commc'n Int'l Union, 175 F.3d 121, 132 (2d Cir.1999) (citing McCarthy v. Manson, 714 F.2d 234, 237 (2d Cir. 1983)). A motion for reconsideration, also known as reargument, is governed by Fed. R. Civ. P. 59(e) and Local Rule 6.3. See Hertzner v. Henderson, 292 F.3d 302, 303 (2d Cir. 2002); Yurman Design Inc. v. Shieler Trading Corp., No. 99 Civ. 9307, 2003 U.S. Dist. LEXIS 15070, at *2 (S.D.N.Y. Aug. 28, 2003).

The standards set forth in both Fed. R. Civ. P. 59(e) and Local Rule 6.3 are identical. See Alexander v. The Turner Corp., No. 00 Civ. 4677, 2001 U.S. Dist. LEXIS 14559, at *1 (S.D.N.Y. Sept. 10, 2001). "A motion for reconsideration should be granted only where the moving party demonstrates that the Court has overlooked factual matters or controlling precedent that were presented to it on the underlying motion and that would have changed its decision." In re Worldcom, Inc. Sec. Litig., 308 F. Supp.2d 214, 224 (S.D.N.Y.2004); Colodney v. Continuum Health Partners, Inc., No. 03-7276, 2004 WL 1857568, at *1 (S.D.N.Y. Aug 18, 2004); see also In Re BDC 56 LLC, 330 F.3d 111, 123 (2d Cir. 2003); E.D.N.Y. Local Civil Rule 6.3. Reconsideration may also be granted to "correct a clear error or prevent manifest injustice." Int'l Ore & Fertilizer Corp. v. SGS Control Servs., Inc., 38 F.3d 1279, 1287 (2d Cir. 1994); Doe v. New York City Dep't of Soc. Servs., 709 F.2d 782, 789 (2d Cir. 1983).

To preserve scarce judicial resources and to avoid piecemeal litigation, a motion for reconsideration is "narrowly construed and strictly applied so as to avoid repetitive arguments on ...


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