United States District Court, E.D. New York
THEODORE O. WILSON III, Plaintiff,
ADA KELLY SESSOMS-NEWTON, D.I. JANET HELGESON, Respondent.
MEMORANDUM & ORDER
K. CHEN, UNITED STATES DISTRICT JUDGE.
Theodore Wilson, proceeding pro se, filed this
action on September 5, 2017, seeking reconsideration of the
Court's August 17, 2017 Order granting Defendants'
motion for summary judgment. (Dkt. 170.) For the reasons
stated herein, Plaintiff's motion is denied.
Court assume the parties' familiarity with the facts in
this case. In 2014, Plaintiff filed a Complaint pursuant to
42 U.S.C. § 1983, alleging that Defendants ADA Kelly
Sessoms-Newton and D.I. Janet Helgeson unlawfully entered the
property in which Plaintiff lived and stole his belongings,
in violation of his Fourth Amendment rights. (Dkts. 1, 6.) On
August 17, 2017, the Court granted Defendants' motion for
summary judgment. (Dkt. 165.) On September 5, 2017, Plaintiff
filed his motion for reconsideration requesting that the
Court grant “an entire reconsideration [and]
reargument” of the summary judgment motion. (Dkt. 170,
decision to grant or deny a motion for reconsideration
“is within the sound discretion of the district court .
. . and is an extraordinary remedy to be employed sparingly
in the interests of finality and conservation of scarce
judicial resources.” Mangino v. Inc. Vill. of
Patchogue, 814 F.Supp.2d 242, 247 (E.D.N.Y. 2011)
(internal citations and quotation marks omitted); see
also Hernandez v. Doe, No. 16-CV-2375
(KAM)(LB), 2016 WL 7391989, at *2 (E.D.N.Y. Dec. 21, 2016).
Generally, a motion for reconsideration will 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.” SBC 2010-1, LLC v. Morton, Nos.
13-714, 13-1161, 2013 WL 6642410, at *1 (2d Cir. Dec. 18,
2013) (citation omitted); see Massop v. U.S. Postal
Serv., 493 F. App'x 231, 232 (2d Cir. 2012). 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) (internal
citation omitted); see also Caribbean Trading & Fid.
Corp. v. Nigerian Nat'l Petroleum Corp., 948 F.2d
111, 115 (2d Cir. 1991).
Plaintiff filed both a Notice of Appeal and a motion for
reconsideration of the summary judgment motion on September
5, 2017 (see Dkts. 168, 170), this Court has the
“express authority to entertain a timely motion to
alter or amend the judgment under Rule 59, even after a
notice of appeal had been filed, ” Griggs v.
Provident Consumer Discount Co., 459 U.S. 56, 61 (1982).
While Plaintiff does not label it as such, the Court
construes Plaintiff's filing as a motion to “alter
or amend a judgment” under Fed.R.Civ.P. 59(e) and finds
that it is timely since it was “filed no later than 28
days after the entry of the judgment.” Fed.R.Civ.P.
raises, for the first time, the argument that “the
evidentiary statements this Court used [and relied on], from
Defendants, was/were hearsay.” (Dkt. 170 at 3, 4; Dkt.
171, at 1, 7.) The Court may not consider a new argument on a
motion for reconsideration when it could have been previously
raised. See Morton, 2013 WL 6642410, at *1;
Woodard v. Hardenfelder, 845 F.Supp. 960, 966
(E.D.N.Y. 1994). But even if the Court were to consider this
defaulted argument, it would not alter the result. Federal
Rule of Civil Procedure 56(c) requires affidavits submitted
in connection with a summary judgment motion to “be
made on personal knowledge, set out facts that would be
admissible in evidence, and show that the affiant or
declarant is competent to testify on the matters
stated.” Fed.R.Civ.P. 56(c)(4). “When an
affidavit does not comply with these basic requirements, the
offending portions should be disregarded by the court.”
Wahad v. F.B.I., 179 F.R.D. 429, 435 (S.D.N.Y. 1998)
(citing United States v. Alessi, 599 F.2d 513,
514-15 (2d Cir.1979)). Plaintiff fails to identify any
specific statements in Defendants' affidavits that are
not based “on personal knowledge” or that would
be inadmissible in evidence. For example, the affidavit of
Lisa Thomas, the legal owner of the property Plaintiff was
squatting in, only set forth facts sworn to be within
Thomas's personal knowledge, such as whether Plaintiff
had her permission to be on the premises. (Aff. of Lisa
Thomas, Dkt. 153-7, at ¶¶ 11, 19-21.) This is also
true of Defendant Sessoms-Newton, whose declaration only
attested to what she personally heard and saw during her
investigation. (See Decl. of Kelly Sessoms-Newton,
the remainder of Plaintiff's arguments, he fails to point
to any controlling law or facts that the Court overlooked in
granting Defendants' motion for summary judgment.
Instead, Plaintiff's motion “is nothing more than a
rehash of the arguments previously raised.” Image
Processing Techs., LLC v. Canon Inc., No. CV 10-3867 SJF
ETB, 2012 WL 253097, at *2 (E.D.N.Y. Jan. 26, 2012).
Therefore, the Court declines to reconsider its August 17,
2017 Order granting summary judgment to Defendants.
foregoing reasons, Plaintiff's motion for reconsideration
is denied. The Court certifies pursuant to 28 U.S.C. §
1915(a)(3) that any appeal would not be taken in good faith
and therefore in forma pauperis status is denied for
the purpose of any appeal. Coppedge v. United
States, 369 U.S. 438, 444-45 (1962). The ...