United States District Court, N.D. New York
PILLER & BRACY PLLC Attorneys for Plaintiff.
CUNNINGHAM RIESTER & HYDE LLP Attorneys for Defendant.
NIELSEN CARTER & TREAS, LLC Attorneys for Defendant.
COUNSEL JOHN M. CROTTY, ESQ. EVAN F. BRACY, ESQ. JAMES P.
LAGIOS, ESQ. MICHAEL D. BREININ, ESQ.
MEMORANDUM-DECISION AND ORDER
FREDERICK J. SCULLIN, JR. SENIOR UNITED STATES DISTRICT JUDGE
originally filed this action in New York Supreme Court,
"seeking coverage for structural damage to her home
following flooding in and around Lake Champlain, New York in
the spring of 2011." See Dkt. No. 15-13 at 1,
3. Defendant removed the action to this District.
parties moved for summary judgment. Plaintiff argued that the
"exclusion relied upon by the Defendant [to deny
coverage was] not applicable" to the circumstances
surrounding the settlement of the concrete slab of her home.
In a Memorandum-Decision and Order dated September 15, 2015,
the Court denied Plaintiff's motion, granted
Defendant's motion, and entered judgment in
Defendant's favor. In doing so, the Court held that
"[t]he evidence . . . clearly indicate[d] that the
damage to the concrete slab . . . [had] occurred due to earth
movement that resulted from the floods." See
Dkt. No. 28 at 6-7.
now moves for reconsideration of that Memorandum-Decision and
Order and Judgment. See Dkt. No. 30. Defendant
opposes the motion. See Dkt. No. 31.
59(e) of the Federal Rules of Civil Procedure empowers a
court "to rectify its own mistakes in the period
immediately following the entry of judgment." White
v. New Hampshire Dep't of Emp't Sec., 455 U.S.
445, 450 & n.11 (1982) (citing Notes of Advisory
Committee on 1946 Amendment to Rules, 28 U.S.C., p. 491; 5
F.R.D. 433, 476 (1946)); see also Fed. R. Civ. P.
in this District "'recognize only three possible
grounds for any motion for reconsideration: (1) an
intervening change in controlling law, (2) the availability
of new evidence not previously available, and (3) the need to
correct a clear error of law or prevent manifest
injustice.'" Oxford House, Inc. v. City of
Albany, 155 F.R.D. 409, 410 (N.D.N.Y. 1994) (quoting
Atkins v. Marathon LeTourneau Co., 130 F.R.D. 625,
626 (S.D.Miss. 1990) (citations omitted)). Whether the movant
has satisfied the requirements for reconsideration is
"'committed to the [court's] discretion and will
not be overturned on appeal absent an abuse of
discretion.'" Id. (quoting McCarthy v.
Manson, 714 F.2d 234, 237 (2d Cir. 1983)).
standard is "strict" and generally bars any motion
for reconsideration that cannot "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)
(citations omitted). The Second Circuit has made clear that
"'Rule 59(e) 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
bit at the apple. . . ."'" Analytical
Surveys, Inc. v. Tonga Partners, L.P., 684 F.3d 36, 52
(2d Cir. 2012) (quoting Sequa Corp. v. GBJ Corp.,
156 F.3d 136, 144 (2d Cir. 1998)).
basis for her motion for reconsideration, Plaintiff argues
that the Court "made an error of law and overlooked
evidence set forth in the reports and testimony of the
engineers submitted by the parties in [their] respective
Motion[s] for Summary Judgment." See Dkt. No.
30-8 at 2. To support her claim, Plaintiff relies on many of
the same arguments that she raised to support her summary
judgment motion For example, Plaintiff asserts that this
Court "overlooked factual findings" cited in
Exhibits G, I, and J, which were attached to her motion for
summary judgment. See Dkt. No. 30-8 at 3-4. These
factual findings, which include the engineers'
independent conclusions that "some amount of vertical
consolidation or settlement of the sand subbase under the
concrete slab, " see Id. at 4, formed as a
result of the flood, are facts that Plaintiff argues could
"reasonably be expected to alter the conclusion reached
by the Court, " see Id. at 2 (citing
Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d