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Cilauro v. Duff

July 29, 2009

JOHN CILAURO, PLAINTIFF,
v.
JOHN V. DUFF, DEFENDANT.



The opinion of the court was delivered by: Hon. Norman A. Mordue, Chief U.S. District Judge

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

On May 18, 2009, this Court issued a Memorandum-Decision and Order in this case which granted, in part, defendants' motion for summary judgment. Defendant John Duff, now moves for reconsideration of a portion of that Memorandum-Decision and Order. (Dkt. No. 27).

II. BACKGROUND

The factual background of the present action was fully set forth in the Court's prior Memorandum-Decision and Order. In short, the case arises from plaintiff's arrest on April 27, 2005. Plaintiff was charged with criminal possession of stolen property and resisting arrest. Plaintiff commenced this action under 42 U.S.C. § 1983 claiming that defendant, inter alia, violated plaintiff's Fourth Amendment rights. In the complaint, plaintiff alleged false arrest and malicious prosecution based upon "the charges". In the Memorandum-Decision and Order, the Court granted defendant's partial motion, "for summary judgment and dismissal... of plaintiff's first, fifth and sixth causes of action... only to the extent that the causes of action pertain to plaintiff's arrest for criminal possession of stolen property in the fourth degree". (Dkt. No. 26). Pursuant to N.D.N.Y. Local Rule 7.1(g), defendant now moves for reconsideration of the Court's determination to deny summary judgment and dismissal of plaintiff's false arrest and malicious prosecution claims (plaintiff's first, fifth and sixth causes of action) with regard to the charge of resisting arrest. Plaintiff opposes defendant's motion. (Dkt. No. 29).

III. DISCUSSION

A court may grant reconsideration of a judgment or interlocutory order to afford such relief as justice requires, based on an intervening change in controlling law, the availability of previously unavailable evidence, or the need to correct a clear error of law or prevent manifest injustice. See Doe v. N.Y. City Dep't of Soc. Servs., 709 F.2d 782, 789 (2d Cir. 1983).Local Rule 7.1 (g) implements this power. Upon receiving a motion to reconsider, a court may deny the motion, thereby leaving the original decision unaltered. Dietrich v. Bauer, 198 F.R.D. 397, 399 (S.D.N.Y. 2001) (citing Lehmuller v. Inc. Vill. of Sag Harbor, 982 F.Supp. 132, 135 (E.D.N.Y. 1997)). "Alternatively, 'the Court can grant a motion to reargue for the limited purposes of considering the effect of an overlooked matter,' and after doing so may affirm and/or clarify the original decision." Id.

At issue in this case is the Court's determination to award defendant summary judgment and dismissal of plaintiff's first, fifth and sixth causes of action, only as they pertain to the arrest for criminal possession of stolen property. Defendant asks the Court to reconsider its determination and grant summary judgment in defendant's favor on plaintiff's first, fifth and sixth causes of action in their entirety. In defendant's original Memorandum of Law in Support of Defendant's Partial Motion for Summary Judgment, defendant presented no argument in support of summary judgment on the resisting arrest charge. Indeed, defendant addressed the issue only in a footnote that read:

Defendant also submits that the record provides ample probable cause for the resisting arrest charge. When plaintiff was told he was under arrest, he rose from the table and moved towards the door to exit the interrogation room.

In opposition to defendant's motion for partial summary judgment, plaintiff stated, "[t]he defendant's motion does not even address the issue of the arrest for the claim of resisting arrest". Despite the fact that plaintiff identified a clear deficiency in defendant's arguments, defendant did not respond to plaintiff's argument. Indeed, defendant did not submit a reply brief. In the Memorandum-Decision and Order, this Court stated:

Plaintiff argues that defendant does not address plaintiff's claim of false arrest and malicious prosecution with regard to the charge of resisting arrest. The Court has reviewed plaintiff's complaint and notes that plaintiff refers to "the charges". Defendant's moving papers are devoid of any argument in support of summary judgment and dismissal of plaintiff's claims of false arrest and malicious prosecution as they pertain to the charge of resisting arrest. Accordingly, the Court will analyze this portion of defendant's motion only with regard to the charge of criminal possession of stolen property in the fourth degree. (Dkt. No. 26).

Now, on reconsideration, defendant raises the argument that summary judgment and dismissal of the plaintiff's claims of false arrest and malicious prosecution are warranted for the charge of resisting arrest. Defendant argues that, "defendant did, in fact, argue in support of summary judgment that he had probable cause to arrest plaintiff on [the resisting arrest] charge".

Defendant presents arguments and cites to caselaw that was not included in the original motion as support for the argument. However, upon review, the Court grants defendant's motion to reconsider.

Defendant argues that based upon "clearly established law", once the Court found that probable cause existed as to the criminal possession charge, dismissal of all false arrest and malicious prosecution claims was mandated. Plaintiff argues, with regard to false arrest, that the resisting arrest charge was, "separate in time and subject matter from the charge of possession of stolen property". Plaintiff further contends that the ...


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