MARK HOGAN, individually and as guardian and on behalf of his minor children, J.H. and I.H.; ELIZABETH M. HOGAN, individually and as guardian and on behalf of her minor children, J.H. and I.H.; and DENNIS B. OKUDINANI, as guardian and on behalf of D.O., Plaintiffs,
COUNTY OF LEWIS, NEW YORK; DAVID VanDEWATER; FRANK ROSE; RUSSELL FALTER; KATHY WILSON; LEANNE MOSER, in her individual and official capacity as District Attorney of the County of Lewis; CALEB PETZOLDT, in his individual and official capacity as Assistant Lewis County District Attorney; SERGEANT RYAN LEHMAN, in his individual and official capacity; DEPUTY BRETT CRONEISER; and JOHN and JANE DOES, Defendants.
MEMORANDUM-DECISION and ORDER
LAWRENCE E. KAHN, District Judge.
Plaintiffs, dissatisfied with the Court's March 8, 2013, Memorandum-Decision and Order granting partial summary judgment for certain Defendants, have filed two Motions for reconsideration. See Dkt. Nos. 125 ("March Order"); 126 ("First Motion"); 126-3 ("First Memorandum"); 131 ("Second Motion"); 131-1 ("Second Memorandum"). Plaintiffs also seek leave to amend so as to add a claim under 42 U.S.C. § 1983. See Second Mot.; Dkt. Nos. 87 ("Supplemental Complaint"); 131-3 ("Proposed Amended Complaint"). For the reasons that follow, the Motions are granted in part and denied in part.
The parties are presumed to be familiar with the background of this case. For a complete statement of Plaintiffs' allegations and claims, reference is made to the Supplemental Complaint or March Order.
The March Order dismissed a number of claims against Defendants Sergeant Ryan Lehman ("Lehman"); Deputy Brett Croneiser ("Croneiser"); County of Lewis ("Lewis County") (collectively with Lehman and Croneiser, the"Lewis County Defendants"); Russell Falter ("Falter"); and Kathy Wilson ("Wilson"). See generally Mar. Order. Plaintiffs filed the First Motion ten days after the issuance of the March Order. Dkt. No. 126-3 ("First Memorandum") at 1. They filed the Second Motion on May 10, 2013. Defendants have responded to the Motions and Plaintiffs have replied. See Dkt. Nos. 128 ("First Lewis County Response"); 136-1 ("Second Lewis County Response"); 127-1 ("Falter and Wilson Response"); 140-1 ("Reply).
III. MOTION FOR RECONSIDERATION
A. Legal Standard
The standard for granting a motion for reconsideration is strict. Shrader v. CSX Transp., Inc. , 70 F.3d 255, 257 (2d Cir. 1995). A motion for reconsideration "should not be granted where the moving party seeks solely to relitigate an issue already decided." Id . Furthermore, a motion for reconsideration is not to be used for "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). "Generally, the prevailing rule in the Northern District recognizes only three possible grounds upon which motions for reconsideration may be granted; they are (1) an intervening change in controlling law, (2) the availability of new evidence not previously available, or (3) the need to correct a clear error of law or prevent manifest injustice.'" Sumner v. McCall , 103 F.Supp.2d 555, 558 (N.D.N.Y. 2000) (Kahn, J.) (quoting In re C-TC 9th Ave. P'ship , 182 B.R. 1, 3 (N.D.N.Y. 1995)).
B. Claims Against Falter and Wilson
1. Interference with Easement
The Court dismissed Plaintiffs' interference with easement claim against Defendants Falter and Wilson because of: (1) the nonexistence of a damages cause of action for third-party interference with easement; and (2) Plaintiffs' failure to allege any harm that could be remedied by injunctive relief. Mar. Order at 30-31. Plaintiffs now argue that both of those determinations were erroneous. See First Mem. at 8-10.
In the March Order, the Court noted an inability "to find any New York State cause of action for damages against a third party for interference with easement that might be applicable to the facts of this case." Mar. Order at 10-11. Plaintiffs now assert that they "have identified the existence of liability of third parties for an interference with easement cause of action" but cite to no authority for this proposition. First Mem. at 9. Nor does Plaintiffs' recitation of the entirely unremarkable propositions that: (1) a cause of action exists against subservient landholders who interfere with an easement on their land; and (2) a habeas claim may be raised even where there is a dearth of case law supporting the claim, indicate that the Court's failure to recognize a heretofore unrecognized third-party interference with easement cause of action was clearly erroneous. See First Mem. at 9. The First Motion is therefore denied with respect to the interference with easement damages claim.
b. Injunctive Relief
Plaintiffs argue that, even if third party interference with easement does not give rise to a damages cause of action, their claim should not have been dismissed because they alleged ongoing harm that can remedied by injunctive relief: physical and psychological harm and future attorneys fees. See First Mem. at 8 (citing Supplemental Compl. ¶ 34(g)). But none of these harms "might be remedied by injunction." Mar. Order at 30. While Plaintiffs may be suffering ongoing physical and psychological harm, as well as legal costs, from Defendants' past actions, only conduct, not injury,  can be enjoined. Plaintiffs have not alleged any specific continuing conduct by Falter and Wilson. While the Supplemental Complaint conclusorily alleges that Falter and Wilson have "continued to obstruct" Plaintiffs' right of way, the only specific alleged act of Falter and Wilson's is a summer 2010 blocking of the right of way-an incident that occurred more than two years before the filing of the ...