United States District Court, S.D. New York
KATHERINE POLK FAILLA, DISTRICT JUDGE:
Court is in receipt of Defendant Honig's and Defendant
Wasserman's motions for reconsideration (Dkt. #67-70);
Plaintiff's opposition thereto (Dkt. #77); and
Honig's and Wasserman's reply papers (Dkt. #80). The
Court has carefully reviewed the parties' submissions and
is not persuaded that it overlooked controlling legal
authority or factual data that would change its decision.
These motions are, accordingly, denied.
for reconsideration are to be denied except where “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). Compelling reasons for granting a
motion for reconsideration are limited to “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) (internal quotation marks and citation omitted). A
motion for reconsideration is, of course, “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.
principal basis for reconsideration is that the Court did not
adopt his argument - raised in his moving brief (Dkt. #44 at
20-22) - that Plaintiff's fraudulent inducement claim was
rendered implausible by certain admissions in Plaintiff's
initial pleading. (See Dkt. #70 (“Honig
Br.”) at 4-7). While the Court did not discuss this
particular argument in its oral decision, it considered the
argument in its review of the parties' submissions and
found it unpersuasive. The Court acknowledged in its ruling
that the parties contested the fact of Honig's power of
attorney (Dkt. #78 at 27:24-28:2), but found that
Plaintiff's claim survived nonetheless.
brief, Honig seizes on a discrepancy between Plaintiff's
Complaint and Amended Complaint: Plaintiff alleged in the
initial Complaint that Mitch Leigh told her he had a power of
attorney over Hellen Darion's vote and Joseph
Darion's business rights, that the power of attorney
dated back to 1991, that the power of attorney was signed by
Hellen Darion, and that Honig confirmed he had the original
at his office. (Honig Br. 4 (citing Dkt. #1 at ¶¶
24, 38-39)). Subsequently, Plaintiff alleged in the Amended
Complaint that Mitch Leigh told her he held a power of
attorney over Hellen Darion's voting and business rights
and that Honig confirmed he had the original in his office;
Plaintiff removed the allegation that the power of attorney
was dated in 1991, a time at which Ms. Darion had no voting
rights in Man of La Mancha. (Dkt. # 41 at
¶¶ 38-39; Honig Br. 4-5). To be sure, the
discrepancy in these allegations casts some doubt on
Plaintiff's claim, but the Court did not find that it
rendered the claim legally insufficient. The gravamen of
Plaintiff's fraudulent inducement claim is that she was
told that Mitch Leigh retained a power of attorney over the
Darion vote - as the Court noted in its decision, it remains
to be seen whether any such power of attorney existed.
Honig's point about the discrepancy is well-taken, but at
this early stage of the litigation the Court finds that
Plaintiff's allegations are sufficiently pleaded to
withstand a motion to dismiss.
to Wasserman's motion for reconsideration, by contrast,
is her failure to file a brief advancing any arguments on her
own behalf in support of her motion to dismiss. Moreover, the
Court did not construe Plaintiff's promissory estoppel
claim to be as narrow as Wasserman now defines it, and agrees
with Plaintiff that it is, at this stage of the litigation,
bound to construe Plaintiff's pleadings liberally and
take all of her well-pleaded allegations to be true.
(See Dkt. #77 (“Pl. Opp.”) at 5-6
(citing Chambers v. Time Warner, Inc., 282 F.3d 147,
152 (2d Cir. 2002)). Wasserman argues now that her
one-sentence brief (see Dkt. #53) incorporated by
reference the arguments made by other Defendants, and that
those arguments should have been construed to merit dismissal
of Plaintiff's claims against her. (Dkt. #80 (“Def.
Reply”) at 3-4). However, the Court did not and does
not find the arguments advanced by other parties to be
persuasive as to Wasserman. (See Dkt. #44 at 22-24).
And in any event, Wasserman was not pro se - she was
represented by counsel who made a strategic decision not to
file a memorandum of law in support of her motion. The Court
was thus not bound to construe liberally submissions made on
behalf of other parties in order to generate arguments that
Wasserman's counsel strategically elected not to make.
foregoing reasons, Defendants Honig's and Wasserman's
motions for reconsideration are DENIED. The Clerk of Court is
directed to terminate the motions at Docket Entries 67 and
69. The Court will consider ...