United States District Court, N.D. New York
MID ATLANTIC FRAMING, LLC, on behalf of itself and all other similarly situated beneficiaries of trust funds received, or to be received by defendant Varish Construction, Inc. Under Article 3-A of the New York Lien Law, Plaintiff,
AVA REALTY ITHACA, LLC; AVA DEVELOPMENT, LLC; TOM VARISH, individually; AJESH PATEL, individually; 359 HOSPITALITY ASSOCIATES, LLC; and "JOHN DOE NO. 1" through "JOHN DOE NO. 20", inclusive, as those persons and entities having an interest in real property located at 359 Elmira Road, Ithaca, New York, and being designated as Tax Parcel Nos. 128.-1-8 and 129.-1-9 on the Land and Tax Map of the City of Ithaca, Tompkins County, New York, and a portion of Tax Parcel Nos. 129-1-10.2, 129.-1-1-1, 129.-1-6.2 and 129.-1-7.2 on the Land and Tax Map of the City of Ithaca, Tompkins County, New York, and/or the trust funds received, or to be received by VARISH CONSTRUCTION, INC. for the improvement of said property, Defendants.
& SITARAS, PLLC GEORGE SITARAS, ESQ. PUJA SHARMA, ESQ.
Attorneys for Plaintiff
& CORWIN, LLP CHARLES F. AHERN, ESQ. Attorneys for
ERVING & SAVAGE, LLP CARLO ALEXANDRE C. de OLIVEIRA, ESQ.
Attorneys for Defendants AVA Realty Ithaca, LLC, AVA
Development, LLC, and Ajesh Patel
MEMORANDUM-DECISION AND ORDER
D'Agostino, U.S. District Judge:
March 29, 2018, the Court (1) denied Defendants AVA Realty
Ithaca, LLC, AVA Development, LLC and Ajesh Patel's
(collectively "AVA Defendants") motion for summary
judgment (Dkt. No. 140), (2) denied Plaintiff's motion
for summary judgment (Dkt. No. 141), and (3) granted
Plaintiff's motion to strike the Declaration of Tom
Varish (Dkt. Nos. 159 & 160). See Dkt. No. 161
(the "March Order"). The Court presumes the
parties' familiarity with the factual background of this
case as detailed in the March Order. See Dkt. No.
161. Currently before the Court is the AVA Defendants'
motion for reconsideration of the March Order. For the
following reasons, the motion for reconsideration is denied.
Rule 7.1(g) provides as follows, in pertinent part:
Motion for Reconsideration. Unless Fed.R.Civ.P. 60 otherwise
governs, a party may file and serve a motion for
reconsideration or reargument no later than FOURTEEN DAYS
after the entry of the challenged judgment, order, or decree.
N.D.N.Y. L.R. 7.1(g).
standards for motions for reconsideration under local
district court rules are very similar to those used for
motions to reconsider under Rule 60(b). See McAnaney v.
Astoria Fin. Corp., No. 04-cv-1101, 2008 WL 222524, *3
(E.D.N.Y. Jan. 25, 2008) (discussing standards).
"'In order to prevail on a motion for
reconsideration, the movant must satisfy stringent
requirements.'" Id. (quoting C-TC 9th
Ave. P'ship v. Norton Co., 182 B.R. 1, 2 (N.D.N.Y.
1995)). As under the federal rules, the local rule
"recognizes 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." Maye v. New York, No. 10-cv-1260,
2011 WL 4566290, *2 (N.D.N.Y. Sept. 29, 2011) (quoting In
re C-TC 9th Ave. P'ship, 182 B.R. at 3); see
also Delaney v. Selsky, 899 F.Supp. 923, 925 (N.D.N.Y.
1995) ("A court may justifiably reconsider its previous
ruling if: (1) there is an intervening change in controlling
law; (2) new evidence not previously available comes to
light; or (3) it becomes necessary to remedy a clear error of
law or to prevent manifest injustice."). A motion for
reconsideration is not "an opportunity for a losing
party to advance new arguments to supplant those that failed
in the prior briefing of the issue." Drapkin v.
Mafco Consol. Group, 818 F.Supp. 2d. 678, 697 (S.D.N.Y.
2011) (quotation and citations omitted).
motion to reconsider should not be granted where the moving
party seeks solely to relitigate an issue already
decided." Shrader v. CSX Transp., Inc., 70 F.3d
255, 257 (2d Cir. 1995). Relief under Rule 60 is considered
"extraordinary judicial relief[.]" Nemaizer v.
Baker, 793 F.2d 58, 61 (2d Cir. 1986). For that reason,
the motion will generally be denied unless the moving party
can show that the court overlooked facts or controlling law
that "might reasonably be expected to alter the
conclusion reached by the court." Shrader, 70
F.3d at 257 (citations omitted). The Second Circuit has
warned "that a Rule 60 motion 'may not be used as a
substitute for appeal' and that a claim based on legal
error alone is 'inadequate.'" United
Airlines, Inc. v. Brien, 588 F.3d 158, 176 (2d Cir.
2009) (quotation and other citation omitted).
Court finds no justification for revisiting its decisions in
the March Order. The AVA Defendants' primary argument in
support of their motion for reconsideration is that the Court
"overlooked undisputed records . . . which, had they not
been overlooked by the Court," would have resulted in a
ruling in their favor. See Dkt. No. 162-2. Further,
the AVA Defendants quote only the language of Rule 403 of the
Federal Rules of Evidence for their assertion that the Court
"clearly erred" in its finding that the Declaration
of Thomas Varish was unfairly prejudicial. The AVA
Defendants have pointed to no change in controlling law, no
evidence that was unavailable during the consideration of the
summary judgment motions, and now simply reargue their
unsuccessful motion for summary judgment and Plaintiff's
motion to strike. These attempts at a second bite at the
apple do not justify reconsideration of the March Order. The
Court thoroughly and fully considered these issues in its
March Order and declines to do so again here.