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Usov v. Marc Lazar, Inc.

United States District Court, S.D. New York

November 14, 2017

GEORGY USOV, Plaintiff,
v.
MARC LAZAR, INC., Defendant.

          Attorneys for Plaintiff THE ROTH LAW FIRM, PLLC By: Richard A. Roth, Esq.

          Attorneys for Defendant NEIMAN & MAIRANZ P.C., By: Marvin Neiman, Esq.

          OPINION

          ROBERT W. SWEET U.S.D.J.

         Defendant Marc Lazar, Inc. ("MLI" or "Defendant") has moved pursuant to Federal Rule of Civil Procedure 59(e) and Local Civil Rule 6.3, to reconsider and amend the Judgment entered on August 30, 2017 (the "Judgment, " Dkt. No. 199), rendered in favor of Plaintiff Georgy Usov ("Usov" or the "Plaintiff") for $5, 134, 672.16. As set forth below, Defendant's motion to reconsider is granted. Upon reconsideration, Defendant's motion to amend the Judgment is denied.

         Prior Proceedings

         The factual background and procedural history of this litigation is detailed in prior Opinions the Court, familiarity with which is assumed. See Usov v. Marc Lazar, Inc., No. 13 Civ. 818 (RWS), 2017 WL 3433606 (S.D.N.Y. Aug. 10, 2017).

         On June 11, 2017, Defendant moved for reconsideration on the Court's Judgment. The motion was taken on submission and marked fully submitted on October 11, 2017.

         The Applicable Standard

         Under Local Rule 6.3, a party moving for reconsideration "must demonstrate that the Court overlooked controlling decisions or factual matters that were put before it on the underlying motion." Eisenmann v. Greene, 204 F.3d 393, 395 n.2 (2d Cir. 2000) (quotation marks and citation omitted). "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) (quotation marks and citation omitted).

         The standard for granting such a motion is "strict" and should only be done when the movant "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). "Such motions are not vehicles for taking a second bite at the apple, " Rafter v. Liddle, 288 Fed.Appx. 768, 769 (2d Cir. 2008) (internal quotation marks and citation omitted), and "should not be granted where the moving party seeks solely to relitigate an issue already decided, " Shrader, 70 F.3d at 257.

         Motions under Fed.R.Civ.P. 59(e) are governed by the same legal standards as those under Local Rule 6.3. NEM Re Receivables, LLC v. Fortress Re, Inc., 187 F.Supp.3d 390, 394 n.2 (S.D.N.Y. 2016).

         The Motion to Reconsider is Granted

         Defendant contends that in the Court's August 10, 2017, opinion on liability (the "August 10 Opinion"), several factual matters were overlooked. Specifically, Defendant identifies an inventory stone list dated December 31, 2008, that details certain diamonds at issue between the parties, and an email between Defendant and a director at Mervia, David Dawes ("Dawes"), discussing the diamonds. See (Defs.' Exs. BB & NN) . Exhibits BB and NN were produced in discovery and admitted at trial.

         As Exhibit BB was not expressly discussed in the August 10 Opinion nor the Judgment, it can be deemed to have been overlooked.[1] Given the limited number of inventory lists presented at trial, such evidence could "reasonably be expected to affect the outcome" of the Judgment. Stoner v. N.Y.C. Ballet Co., No. 99 Civ. 196 (BSJ), 2002 WL 523270, at *10 ...


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