United States District Court, N.D. New York
WHITEMAN OSTERMAN & HANNA LLP, JOHN J. HENRY, ESQ.,
ROBERT S. ROSBOROUGH, IV, ESQ. Attorneys for Plaintiff
TABNER, RYAN & KENIRY, LLP WILLIAM RYAN, JR., ESQ., BRIAN
M. QUINN, ESQ. Attorneys for Defendant
MEMORANDUM-DECISION AND ORDER
FEDERICK J. SCULLIN SENIOR UNITED STATES DISTRICT JUDGE.
19, 2017, the Court, in a Memorandum-Decision and Order,
granted Plaintiff's motion for a new trial and denied its
motion for judgment as a matter of law. See Dkt. No.
109. Pending before the Court is Defendant's motion for
reconsideration of the Court's Memorandum-Decision and
Order, pursuant to Rule 60(b) of the Federal Rules of Civil
Procedure and Local Rule 7.1(g), or, alternatively, to amend
that Memorandum-Decision and Order to include certification
of an issue to the Second Circuit pursuant to 28 U.S.C.
§ 1292(b). See Dkt. No. 110.
Motion for reconsideration
"'is an extraordinary remedy to be employed
sparingly in the interests of finality and conservation of
scarce judicial resources.'" In re Health Mgmt.
Sys., Inc. Secs. Litig., 113 F.Supp.2d 613, 614
(S.D.N.Y. 2000) (quoting Wendy's Int'l, Inc. v.
Nu-Cape Construction, Inc., 169 F.R.D. 680, 685 (M.D.
Fla. 1996)) (other citations omitted). "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)
(citations omitted). Generally, there are "'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."'
Gaston v. Coughlin, 102 F.Supp.2d 81, 83 (N.D.N.Y.
2000) (quoting In re C-TC 9th Ave. P'ship, 182
B.R. 1, 3 (N.D.N.Y. 1995) (McAvoy, C.J.).
it is well-settled that a motion for 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[.]"'" 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)). Consequently, a plaintiff "cannot use a
motion for reconsideration to advance new facts or arguments
and may not submit affidavits or new material." In
re Residential Capital, LLC, No. 12-12020, 2016 WL
6783316, *3 (Bankr. S.D.N.Y. Nov. 10, 2016) (citations
gravamen of Defendant's arguments amounts to merely its
disagreement with, and misunderstanding of, the Court's
Memorandum-Decision and Order. For example, Defendant argues
that "[t]he holding . . . essentially prevents the
account stated defense as a means of indirectly asserting and
relying on other intertwined defenses such as those involving
waiver, modification, abandonment, laches, and equitable
estoppel, among others." See Dkt. No. 110-1 at
9. To the contrary, the Court recognized that the jury's
verdict was founded on the concept "that Plaintiff's
claim was barred because a significant amount of time had
elapsed between when the SFA contract began and when
Plaintiff first asserted its rights to recover."
See Dkt. No. 109 at 11 n.2. Perhaps laches or waiver
could have been established at trial; however, the Court did
not instruct the jury on those affirmative defenses. Thus,
the Court will not speculate whether the jury would have so
found had the Court provided such instructions.
Defendant's explanation that the "the May 19 Order
essentially concludes that a jury instruction may never
contain a verdict with findings of both the existence of a
contract and the existence of an account stated defense"
misses the point. See Dkt. No. 110-1 at 10. Rather
than holding that the doctrine of account stated could not
serve as an affirmative defense, the Court concluded that it
could not serve as an affirmative defense to void the oral
modification of the parties' contract. That is, after the
jury found that the parties orally modified their contracts,
the account stated defense could not be used to confirm the
contents of the oral modification because no party produced a
scintilla of evidence showing that the parties intended the
monthly invoices to include payments for the unused flight
hours. See Dkt. No. 109 at 10.
Court has considered Defendant's other arguments and
finds that Defendant has failed to point to a single error in
the Court's analysis but rather merely reiterates
arguments that it raised in its previous motion, which the
Court rejected. Therefore, the Court denies its motion for
Motion to certify the Court's May 19, 2017
Memorandum-Decision and Order for an interlocutory appeal to
the Second Circuit
to 28 U.S.C. § 1292(b), a court may certify its order
for interlocutory review when (1) "such order involves a
controlling question of law [(2)] as to which there is
substantial ground for difference of opinion and [(3) where]
an immediate appeal from the order may materially advance the
ultimate termination of the litigation[.]" 28 U.S.C.
§ 1292(b). "[T]he certification decision is
entirely a matter of discretion for the ...