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Bokel v. NYPD Property Clerk Division

July 15, 2008

WEILY L. BOKEL, PLAINTIFF,
v.
NYPD PROPERTY CLERK DIVISION, ITS SUCCESSORS AND ASSIGNS, AND THE UNITED STATES OF AMERICA, DEFENDANTS.



The opinion of the court was delivered by: Townes, United States District Judge

MEMORANDUM and ORDER

Weily L. Bokel filed a motion pursuant to Rule 41(g) of the Federal Rules of Criminal Procedure, seeking return of items of her property allegedly seized by the police following her arrest on December 31, 2003. Specifically, Bokel sought the return of thirteen items or groups of items which allegedly had been seized at Kennedy Airport, including a gold necklace with a jade pendant, two silver necklaces with sapphire pendants, petitioner's Brazilian identifications, various children's books and stuffed animals, some videotapes and her daughter's passports. This Court ordered the defendant, the United States, to account for plaintiff's seized property. Magistrate Judge Lois Bloom supervised discovery and held telephonic conferences to determine what happened to Bokel's seized property and received declarations from the defendant.

In a Report and Recommendation ("R&R") dated December 7, 2007, Magistrate Judge Bloom recommended dismissal of Bokel's motion for return of specific property. This Court agreed that an adequate inquiry into what happened with Bokel's property occurred, that there was no further relief to be had, and dismissal of Bokel's motion for return of property was proper.

Bokel now moves to vacate this Court's Memorandum and Order adopting Magistrate Judge Bloom's Report and Recommendation. The Court construes Bokel's motion to vacate as a motion for reconsideration under either Fed. R. Civ. P. 59(e) and 60(b).

DISCUSSION

"The decision to grant or to deny a Rule 59(e) motion for reconsideration rests with the sound discretion of the District Court." United States v. Eubanks, No. S7 92 CR 392, 1999 WL 1261256, at *5 (S.D.N.Y. Dec. 27, 1999) (citation omitted). "A motion for reconsideration is appropriate when the moving party can demonstrate that the Court overlooked controlling decisions or factual matters that were put before it on the underlying motion ... and which, had they been considered, might have reasonably altered the result before the court." Herschaft v. New York City Campaign Finance Bd., 139 F. Supp. 2d 282, 283-84 (E.D.N.Y. 2001) (internal quotation marks and citation omitted); see also Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995) (citing cases). These limitations are necessary to prevent a losing party from relitigating an issue already decided and simply "examining a decision and then plugging the gaps of the lost motion with additional matters." Range Road Music, Inc. v. Music Sales Corp., 90 F. Supp. 2d 390, 392 (S.D.N.Y. 2000)); see also Shrader, 70 F.3d at 257.

Relief under Rule 60(b) is limited; courts may vacate or modify a final judgment or order for the following reasons:

(1) mistake, inadvertence, surprise, or excusable neglect;

(2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b);

(3) fraud . . . misrepresentation, or other misconduct of an adverse party;

(4) the judgment is void;

(5) the judgment has been satisfied, released or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or

(6) any other reason justifying relief from the operation ...


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