United States District Court, S.D. New York
OPINION & ORDER
A. ENGELMAYER United States District Judge.
29, 2017, the Court issued a decision granting in part, and
denying in part, the parties' cross-motions for summary
judgment. Dkt. 131 ("Decision"). On July 13, 2017,
plaintiff Luis Felipe Moreno-Godoy filed a motion for
reconsideration. Dkt. 132 ("Moreno-Godoy Mem."). On
July 21, 2017, defendant Gallet Dreyer & Berkey, LLP
("GDB") filed a cross-motion for reconsideration,
Dkt. 134, along with a memorandum of law supporting its
motion and opposing Moreno-Godoy's, Dkt. 135. The same
day, defendant Steven R. Kartagener filed a cross-motion for
reconsideration, Dkt. 136, along with a memorandum of law
supporting his motion and opposing Moreno-Godoy's, Dkt.
137. On July 22, 2017, Moreno-Godoy filed a brief in further
support of his motion and in opposition to defendants',
Dkt. 138. For the following reasons, the Court denies all
standard governing motions for reconsideration "is
strict, and reconsideration will generally be denied unless
the moving party can point to controlling decisions or data
that the court overlooked." Analytical Surveys, Inc.
v. Tonga Partners, L.P., 684 F.3d 36, 52 (2d Cir. 2012)
(citation omitted); see also S.D.N.Y. Local Rule 6.3
(requiring the movant to "set[ ] forth concisely the
matters or controlling decisions which counsel believes the
court has overlooked"). Such a motion "is neither
an occasion for repeating old arguments previously rejected
nor an opportunity for making new arguments that could have
been previously advanced." Associated Press v. U.S.
Dep't of Def., 395 F.Supp.2d 17, 19
(S.D.N.Y. 2005); see also Goonan v. Fed. Reserve Bank of
N.Y., No. 12 Civ. 3859 (JPO), 2013 WL 1386933, at *2
(S.D.N.Y. Apr. 5, 2013) ("Simply put, courts do not
tolerate such efforts to obtain a second bite at the
apple."). Rather, reconsideration is appropriate
"only when the [moving party] identifies an intervening
change of controlling law, the availability of new evidence,
or the need to correct a clear error or prevent manifest
injustice." Kolel Beth Yechiel Mechil of Tartikov,
Inc. v. YLL Irrevocable Tr., 729 F.3d 99, 104 (2d Cir.
2013) (citation omitted).
are generally barred from introducing new facts in a motion
to reconsider. See Polsby v. St. Martin's Press,
Inc., No. 97 Civ. 690 (MBM), 2000 WL 98057, at *1
(S.D.N.Y. Jan. 18, 2000) (citation omitted). A party seeking
reconsideration "is not supposed to treat the
court's initial decision as the opening of a dialogue in
which that party may then use such a motion to advance new
theories or adduce new evidence in response to the
court's rulings." De Los Santos v.
Fingerson, No. 97 Civ. 3972 (MBM), 1998 WL 788781, at *1
(S.D.N.Y. Nov. 12, 1998). The purpose of Rule 6.3 is to
"ensure the finality of decisions and to prevent the
practice of a losing party examining a decision and then
plugging the gaps of a lost motion with additional
matters." Naiman v. N.Y. Univ. Hosps. Ctr., No.
95 Civ. 6469 (RPP), 2005 WL 926904, at *1 (S.D.N.Y. Apr. 21,
2005) (quoting Carolco Pictures, Inc. v. Sirota, 700
F.Supp. 169, 170 (S.D.N.Y. 1988)).
Court assumes familiarity with the case's facts and
procedural history and describes only those facts necessary
to resolve the pending motions.
Moreno's "Fresh Set of Eyes" Theory of
moves for reconsideration of the denial of his motion for
summary judgment. The Court held that Moreno-Godoy's
claim to have been deprived of the $100, 000 payment
originally given to Kartagener and then appropriated by GDB
after Kartagener proved unable to serve as counsel must be
resolved by a jury, based on a factual dispute about whether
that sum belonged to Moreno-Godoy. Moreno-Godoy argues that
he is entitled to pursue - and prevail on - an alternative
theory of injury, to wit, that, by retaining the $100, 000,
GDB deprived Moreno-Godoy of the "benefit of his
bargain, " namely, a "fresh set of eyes" for
his criminal appeal. See Moreno-Godoy Mem. at 4-7.
In other words, Moreno-Godoy argues, even if the $100, 000
earmarked for Kartagener did not belong to Moreno-Godoy, he
was nevertheless harmed by its misappropriation by GDB
because it could have been used to hire a different appellate
lawyer in Kartagener's stead. Id. at 4.
theory fails for multiple independent reasons. First, this
theory is belatedly pursued: In sustaining Moreno-Godoy's
pro se complaint, the Court sustained only his
theory of monetary injury, to wit, that it was his $100, 000
that was misappropriated by existing counsel. That claim, for
the reasons stated in the Decision, must be resolved at
trial, given the disputed issues of fact. The Court did not,
however, sustain the claim that Moreno-Godoy was separately
cognizably injured by the loss of additional "eyes"
to view his case. Second, even assuming that this claim of
non-monetary injury had been preserved, Moreno-Godoy did not
adduce any evidence on summary judgment that he requested or
had available any alternative (and security-cleared) lawyer
whom he sought to serve in lieu of the non-cleared
Kartagener. Third, and most fundamentally, Moreno-Godoy's
conviction was affirmed on appeal by the United States Court
of Appeals for the Second Circuit. He does not here-and
cannot here-claim any infirmity in that result. Assuming that
the $100, 000 did not belong to Moreno-Godoy, the harm to him
from the unavailability of another "set of eyes"
would be measured by the outcome of his criminal appeal. The
claim is not available here to Moreno-Godoy that the addition
of other "eyes" to view the trial record that
resulted in his affirmed conviction would have done him any
is, therefore, no basis for reconsideration of the decision
denying summary judgment to Moreno-Godoy.
Raghdaa Habbal's Affidavit
parties move for reconsideration of the Decision insofar as
it addressed the affidavit of witness Raghdaa Habbal, who
attested therein that Moreno-Godoy had reimbursed her for the
$100, 000 that she paid made to Kartagener.
argues that the Court was required to credit Habbal's
affidavit as true, and therefore was required to enter
summary judgment in his favor. Moreno-Godoy argues that the
Court erred in not crediting her, citing Rogoz v. City of
Hartford,796 F.3d 236, 245 (2d Cir. 2015), for the
proposition that in considering a motion for summary
judgment, "the court may not make credibility
determinations." That argument is frivolous. In
resolving a motion for summary judgment, the Court is to
"resolve all ambiguities and draw all permissible
factual inferences in favor of the party against whom
summary judgment is sought" Johnson v. Killian, 680
F.3d 234, 236 (2d Cir. 2012) (citing Terry v.
Ashcroft,336 F.3d 128, 137 (2d Cir. 2003) (emphasis
added), not in favor of the moving party. The Court therefore
was required to credit Habbal's declaration to the extent
that defendants moved for summary judgment on the ground that
there was insufficient evidence of Moreno-Godoy's
ownership of the $100, 000. On Moreno-Godoy's
motion for summary judgment, however, the Court was not
obliged to treat Habbal's declaration as true, any more
than the jury will be required to credit her if ...