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Callari v. Blackman Plumbing Supply, Inc.

United States District Court, E.D. New York

April 28, 2014

MICHAEL CALLARI, individually and on behalf of other persons similarly situated who were employed by BLACKMAN PLUMBING SUPPLY, INC., and/or any other entities affiliated with or controlled by BLACKMAN PLUMBING SUPPLY, INC., Plaintiffs,

Robert Connolly, Esq., Of Counsel Bee Ready Fishbein Hatter & Donovan, LLP, Attorneys for the Plaintiff and Opt-in Plaintiff George Ruggiero Mineola, NY.

Douglas E. Rowe, Esq., James A. Rose, Esq., Sanjay V. Nair, Esq., Of Counsel Certilman Balin Adler & Hyman, LLP, East Meadow, NY, Attorneys for the Defendants.


ARTHUR D. SPATT, District Judge.

On July 29, 2011, the Plaintiff Michael Callari ("Callari"), individually and on behalf of other persons similarly situated, commenced this action against the Defendants Blackman Plumbing Supply, Inc. ("BPS"), Richard Blackman ("Blackman") and John Does #1-10. Pursuant to the Fair Labor Standards Act ("FLSA"), 29 U.S.C. §§ 207 and 216, New York Labor Law ("NYLL") Article 19 § 663, NYLL Article 6 §§ 190 et seq. and 12 New York Codes, Rules and Regulations ("NYCRR") § 142-2.2, the Plaintiff seeks to recover allegedly unpaid overtime wages owed to him and all similarly situated persons who are presently or were formerly employed by BPS and/or any entities affiliated with or controlled by BPS, Blackman and John Does #1-10.

On June 21, 2013, following the passing of Blackman, the parties entered into a stipulation substituting Robert Manheimer ("Manheimer") and Robert A. Tepedino ("Tepedino, " and together with "BPS" and "Manheimer, " the "Defendants"), as Co-Executors of the Estate of Blackman, as defendants in this action, in the place and stead of Blackman. The Court "so ordered" this stipulation on June 24, 2013. In addition, on September 28, 2012, George Ruggerio ("Ruggerio, " and together with "Callari, " the "Plaintiffs") opted-in as a plaintiff. He is the only opt-in plaintiff in this action.

On December 19, 2013, the Court issued an Order, in relevant part, granting the Defendants' motion for summary judgment as to the opt-in Plaintiff Ruggiero's FLSA claim, because he waived his right to sue under the FLSA. The Court also found that this case is governed by FLSA's two-year statute of limitations on the ground that the Plaintiffs offered no proof to establish that the Defendants either knew or recklessly disregarded FLSA requirements when it classified him as an exempt employee.

The Plaintiffs now move pursuant to Local Civil Rule 6.3 for reconsideration of the Court's summary judgment decision with respect to these two determinations. In addition, the Plaintiffs seek an order from this Court striking certain portions of the reply declaration of the Defendants' witness Mark Schneider ("Schneider") from the record.

As an initial matter, the Court notes that the Plaintiffs, in their moving papers, have included footnotes in violation of this Court's Individual Rule I.A. Notwithstanding this infraction, the Court will consider the Plaintiffs' papers in rendering its decision. However, the Court advises the Plaintiffs' counsel that any future filings that contain footnotes will not be considered by this Court.

For the reasons set forth below, the Court denies both of the Plaintiffs' motions.


The Court assumes the parties' familiarity with the background of this case and the Order that the Defendant now challenges. See Callari v. Blackman Plumbing Supply Inc., No. 11-CV-3655 (ADS)(AKT), 2013 WL 6795911 (E.D.N.Y. Dec. 19, 2013). Accordingly, the Court need not repeat those facts here and proceeds to the Plaintiffs' motion to strike and motion for reconsideration.

A. The Motion for Reconsideration

1. The Legal Standard

A motion for reconsideration in the Eastern District of New York is governed by Local Rule 6.3. "The standard for granting such a motion 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). "The major grounds justifying reconsideration are an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice." Virgin Atl. Airways, Ltd. v. Nat'l Mediation Bd., 956 F.2d 1245, 1255 (2d Cir. 1992) (internal quotation marks omitted).

Of importance, a motion for reconsideration is not an opportunity for litigants to reargue their previous positions or present new or alternative theories that they failed to set forth in connection with the underlying motion. See Trans-Pro Logistic Inc. v. Coby Elecs. Corp., No. 05 Civ. 1759, 2010 WL 4065603, at *1 (E.D.N.Y. Oct. 15, 2010) (citing Ferrand v. Credit Lyonnais, 292 F.Supp.2d 518, 520 (S.D.N.Y. 2003)); see also Zdanok v. Glidden Co., Durkee Famous Foods Div., 327 F.2d 944, 953 (2d Cir. 1964) ("[W]here litigants have once battled for the court's decision, they should neither be required, nor without good reason permitted, to battle for it again."). Indeed, a motion for reconsideration should be "narrowly construed and strictly applied so as to avoid repetitive arguments on issues that have already been considered fully by the court" and is considered an "extraordinary remedy to be employed sparingly in the interests of finality and conservation of scarce judicial resources." Trans-Pro Logistic Inc., 2010 WL ...

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