The opinion of the court was delivered by: Thomas J. McAVOY, Senior United States District Judge
Defendant CSX Transportation, Inc. ("CSXT") moves for reconsideration of the Court's Decision and Order on the summary judgment motions. See Dkt. # 55. For the reasons that follow, the motion is denied.
A motion for reconsideration is not a substitute for an appeal. "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); see also Friedman v. S.U.N.Y. at Binghamton, 2006 WL 2882980, at * 1 (N.D.N.Y. Oct. 5, 2006). "The high burden imposed on the moving party has been established in order to dissuade repetitive arguments on issues that have already been considered by the court and discourage litigants from making repetitive arguments on issues that have been thoroughly considered by the court [and] to ensure finality and prevent the practice of a losing party examining a decision and then plugging the gaps of the lost motion with additional matters." Nowacki v. Closson, 2001 WL 175239, *1 (N.D.N.Y. Jan. 24, 2001) (Munson, J.) (internal citations and quotations omitted). Reconsideration "is not a vehicle for relitigating old issues, presenting the case under new theories, securing a rehearing on the merits, or otherwise taking a 'second bite at the apple.'" Sequa Corp. v. GBJ Corp., 156 F.3d 136, 144 (2d Cir. 1998). Reargument is also not a vehicle to "advance new facts, issues or arguments not previously presented to the court." Polanco v. United States, 2000 WL 1346726, at *1 (S.D.N.Y. Sept.19, 2000) (quoting Schrader, 70 F.2d at 256). "The Northern District of New York 'recognizes only three possible grounds upon which a motion for reconsideration may be granted: (1) an intervening change in controlling law, (2) the availability of new evidence not previously available, or (3) the need to correct clear error of law to prevent manifest injustice.'" Friedman, 2006 WL 2882980, at * 1 (quoting Nowacki, 2001 WL 175239, at *1).
CSXT argues that the Court erred because it accepted CSXT's argument and only considered the first 25 pages of Plaintiffs' 45-page memorandum of law submitted in support of its summary judgment cross-motion and in opposition to CSXT's summary judgment motion. See CSXT's SJ Reply MOL [dkt. # 48], p. 11; *fn1 Dec. & Ord. [dkt. # 55], pp. 2-3. *fn2 CSXT asserts that by considering only the first 25 pages of Plaintiffs' memorandum of law, "the Court did not consider plaintiffs' arguments and proof with regard to the issue of whether the seat plaintiff was using in co-defendant Richard J. Ketterer's vehicle was unsafe." CSTX's MOL for Reconsideration [dkt. # 105 ] pp. 1-2. This, CSXT contends, "deprived CSXT of an opportunity to have the Court consider the issue of whether the seat could be considered unsafe as a matter of law." Id. p. 2. CSXT further contends that because the Court ultimately held that "[i]f Plaintiff is able to establish that the seating was unsafe, then he may be able to establish a FELA claim, " dkt. # 55, p. 13, the Court must necessarily have ignored CSXT's reply memorandum of law wherein it argued that "plaintiffs' offer of proof on [the seat's safety] was insufficient as a matter of law, to create a question of material of fact requiring a trial." CSTX's MOL for Reconsideration, p. 2, see also, id. p. 3. *fn3
CSXT's argument is premised upon an extremely myopic review of the Court's Decision and Order and an apparent misunderstanding of the burdens on summary judgment. In deciding CSXT's motion for summary judgment against Plaintiffs, the Court wrote:
CSXT also contends that it is entitled to summary judgment dismissing Plaintiff's FELA claim because it provided Plaintiff with a safe place to work, and because any injury to Plaintiff was proximately caused by Ashwood's negligence which was unforeseeable by CSXT.
The FELA provides that "[e]very common carrier by railroad . . . shall be liable in damages to any person suffering injury while he is employed by such carrier . . . for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier." 45 U.S.C. § 51. The FELA was intended as a remedial statute for railroad workers injured while on the job.
In order to further FELA's humanitarian purposes, Congress "did away with several common-law tort defenses that had effectively barred recovery by injured workers." Consol. Rail Corp. v. Gottshall, 512 U.S. 532, 542 (1994). "Specifically, the statute abolished the fellow servant rule, rejected the doctrine of contributory negligence in favor of that of comparative negligence, and prohibited employers from exempting themselves from FELA through contract; a 1939 amendment abolished the assumption of risk defense." Id. at 542-43 (citing 45 U.S.C. §§ 51, 53-55).
Campbell v. Consolidated Rail Corp., 2008 WL 3414029, at * 3 (N.D.N.Y. Aug. 8, 2008). " A railroad may be liable under FELA for failure to provide a safe workplace 'when it knows or should know of a potential hazard in the workplace, yet fails to exercise reasonable care to inform and protect its employees .'" Syverson v. Consolidated Rail Corp., 19 F.3d 824, 826 (2d Cir.1994)(quoting Gallose v. Long Island R.R. Co., 878 F.2d 80, 84-85 (2d Cir.1989)). However, the Supreme Court has "insisted that FELA 'does not make the employer the insurer of the safety of his employees while they are on duty. The basis of his liability is his negligence, not the fact that injuries occur.'" Gottshall, 512 U.S. at 543 (quoting Ellis v. Union Pacific R. Co., 329 U.S. 649, 653 (1947)). "Significantly, the essential element of reasonable foreseeability in FELA actions requires proof of actual or constructive notice to the employer of the defective condition that caused the injury." Campbell, 2008 WL 3414029, at * 4.
Under FELA, "the case must not be dismissed at the summary judgment phase unless there is absolutely no reasonable basis for a jury to find for the plaintiff."
Syverson v. Consol. Rail Corp., 19 F.3d 824, 828 (2d Cir.1994) (citing Gallick v. Baltimore and O.R.R., 372 U.S. 108, 120-21 (1963)). However, while FELA plaintiffs are entitled to have reasonable inferences drawn in their favor from the facts, they may not survive a motion for summary judgment when the inferences they ask a court to draw are mere possibilities. See Connors v. Consol. Rail Corp., No. 90-CV-464, 1993 WL 169646, at *8 ...