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Clifford v. Preferred Mutual Insurance Co.

United States District Court, N.D. New York

March 14, 2017

MARIE CLIFFORD, Plaintiff,
v.
PREFERRED MUTUAL INSURANCE COMPANY, Defendant.

          NILES PILLER & BRACY PLLC Attorneys for Plaintiff.

          ISEMAN CUNNINGHAM RIESTER & HYDE LLP Attorneys for Defendant.

          NIELSEN CARTER & TREAS, LLC Attorneys for Defendant.

          OF 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

         I. INTRODUCTION

         Plaintiff 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.

         Both 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.

         Plaintiff now moves for reconsideration of that Memorandum-Decision and Order and Judgment. See Dkt. No. 30. Defendant opposes the motion. See Dkt. No. 31.

         II. DISCUSSION

         Rule 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. 59(e).

         Courts 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)).

         This 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)).

         As a 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 ...


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