Dunn, et al v. Kaladjian, et al

Filing 278

ORDER denying 265 Motion to Set Aside Judgment. For the reasons set forth in the attached Memorandum and Order, plaintiffs' motion for relief from judgment is denied. SO ORDERED. Ordered by Judge Joseph F. Bianco on 9/28/2011. (Nagiel, Svetlana)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_____________________
No 92-CV-1002 (JFB) (CLP)
_____________________

ROSELLA DUNN, ET. AL.,
Plaintiffs,
VERSUS

GREGORY KALADJIAN, ET. AL.,
Defendants.
________________
MEMORANDUM AND ORDER
September 28, 2011
___________________

JOSEPH F. BIANCO, District Judge:
Plaintiffs Geraldine Boyland, Joan and
Robert Ford, and Phillis Scirica commenced
this class action on behalf of themselves and
other similarly situated New York City
residents who sought the assistance of the
New York City Department of Social
Services (“DSS” or the “City”) or one of its
agents to resolve a heat-related energy
emergency at any time since February 27,
1989 and (1) were not provided with an
emergency benefit under the Home Energy
Assistance Program (“E-HEAP”) due to the
failure of DSS or its agents to inform them of
the availability of such benefits, or (2) did
not receive timely notice of an E-HEAP
eligibility determination or some form of
assistance to resolve the energy emergency
within forty-eight hours of the resident’s

request, or within eighteen hours if under lifethreatening circumstances, or (3) received a
state-funded loan pursuant to New York Social
Services Law § 131-s to resolve the heatrelated energy crisis without evaluation of
eligibility for an E-HEAP benefit, and were
compelled to repay such state funds. Plaintiffs
sued both the City and the Commissioner of
the Office of Temporary and Disability
Assistance of the New York State Department
of Family Assistance (the “State”).
Plaintiffs have now moved pursuant to
Federal Rule of Civil Procedure 60(b)(6) for
relief from the Court’s March 27, 2007 Order
(“March Order”) granting summary judgment
in favor of defendants. Specifically, plaintiffs
claim that defendants’ procedures in
implementing E-HEAP, which had been
revised at the time of the March Order and

The Court’s ruling regarding defendants’
procedures in administrating E-HEAP first
addressed whether the Job Centers operated by
the City failed to provide written notice of
adverse E-HEAP eligibility determinations. Id.
at 175. Plaintiffs alleged that Utility Liaisons
at the Job Centers screened E-HEAP
applications and solely passed on to HEAP
Central, the body that was supposed to be
making E-HEAP determinations, the
applications that were considered eligible for
the emergency grant. In the March Order, the
Court concluded that plaintiffs failed to offer
any evidence indicating that Job Center
workers did not follow current City procedures
and, in practice, denied E-HEAP benefits
without referring applicants to HEAP Central.
Id. at 177. The Court determined that
defendants presented overwhelming evidence
that applications for emergency energy
assistance were forwarded to HEAP Central,
which then provided notice of adverse EHEAP eligibility determinations. Id. at 175.
The Court evaluated the procedures
implemented by defendants through their
Policy Directives and Paperless Office System
(“POS”) computer program. First, the Court
pointed to E-HEAP Policy Directives, whose
provisions were buttressed by affidavits from
City administrators, indicating that the Utility
Liaisons at the Job Centers had to contact
HEAP Central to initiate an E-HEAP
application for any person requesting a heatrelated grant. Id. at 176. Furthermore, the
Court concluded that the defendants
implemented policies and programs that
assured that the Utility Liaisons were getting
the E-HEAP applications. On this point, the
Court concluded that Job Center workers who
were directly speaking with applicants were
filling out the form for energy assistance (the
M-858m form (the “Form”)) and passing the
Form on to the Utility Liaison to initiate the EHEAP grant application with HEAP Central.
Id. Specifically, the Court concluded that the

considered by the Court in its decision, have
not resolved the lack of: (1) notice of EHEAP determinations to applicants; and (2)
proper coding of public assistance (“PA”)
households, which caused PA households to
be unaware of their E-HEAP eligibility. For
the reasons that follow, the motion for relief
from judgment is denied. The Court
concludes that plaintiffs have failed to satisfy
any of the requirements necessary for a
successful Rule 60(b)(6) motion.
I. BACKGROUND
The Court assumes familiarity with the
facts and background of this case and with
the statutory framework governing the
distribution of HEAP and E-HEAP benefits
in New York City, as discussed in the
Court’s March Order. The Court outlines
below its decision in the March Order, as
well as the newly discovered evidence upon
which plaintiffs rely in support of their
motion.
A. March Order
In its March Order granting summary
judgment in favor of defendants, the Court
concluded that: (1) the federal E-HEAP
statute did not create a private right of action;
(2) the current procedures employed by
defendants in administering E-HEAP were
constitutionally adequate and no continuing
due process violation existed warranting
prospective relief; and (3) any retroactive
relief for past due process violations relating
to E-HEAP were barred by the Eleventh
Amendment. Boyland v. Wing, 487 F. Supp.
2d 161, 164 (E.D.N.Y. 2007).

2

B. Newly Discovered Evidence

POS program (1) allowed the Job Center
employees to automatically populate relevant
portions of the Form, and (2) provided an
error message where the Form was not
printed, reminding the Job Center employee
to print the Form and forward it to a Utility
Liaison or scan and index the completed
Form. Id.

In support of their motion, plaintiffs rely on
Policy Directives issued by defendants after the
March Order, data on PA households receiving
E-HEAP grants versus state-funded repayable
loans since the March Order, as well as on the
affidavit of Eugene Doyle (“Doyle”), a social
worker licensed to practice in New York State.
(Eugene Doyle Aff. Dated Feb. 11, 2011
(“Doyle Aff.”) ¶ 2.)

The March Order not only addressed the
role of the Utility Liaison in providing notice
of E-HEAP determinations, but also the
coding issue raised by plaintiffs. The Court
concluded that the risk of erroneous
deprivation of due process due to the City’s
procedures for identifying PA “heater
households,” or households eligible for the
E-HEAP emergency grant, was extremely
low. Id. at 178. The Court once again
pointed to the City’s Policy Directives that
instructed Job Center employees on how to
indicate in the POS program that an
individual applicant for public assistance
resided in a household where heat was paid
separately from the rent, which made the
household eligible for E-HEAP benefits. Id.

On August 31, 2009, plaintiffs submitted to
defendants a Freedom of Information Law
(“FOIL”) request demanding a database of: (1)
all PA heater households who requested
assistance to pay heat-related energy expenses
since April 1, 2007, and received either an EHEAP grant, a state-funded loan that was
repayable, or a state-funded grant that was not
repayable; and (2) the number of PA heater
households during any given month covering
the same time period regardless of whether
they received any heat-related assistance.
(Vollmer Decl. Ex. 13 at 2 (FOIL request).)
On January 19, 2010, plaintiffs’ counsel paid
for the creation of said database. (Id. Ex. 14 at
3 (cashiers check from plaintiffs’ counsel,
dated January 19, 2010).) A computer disk
containing the database was received by
plaintiffs’ counsel on July 27, 2010. (Id. Ex.
15.)

In the March Order, the Court relied on
the declaration of Michele Shepard, the
Director of the POS, filed in support of
defendants’ motion for summary judgment.
Id. at 176, 178 n. 9. In that declaration, she
indicated that, by October 22, 2007, the POS
program would “automatically, electronically
transmit” the Form to HEAP Central. (Decl.
of Peter Vollmer in Supp. of Mot. for Relief
from Judgment dated Feb. 11, 2011
(“Vollmer Decl.”) Ex. 3 ¶¶ 1, 17-18
(Supplemental Decl. of Michele Shepard
dated Feb. 27, 2007).)

The information on the computer disk was
analyzed by Doyle. The data indicated that
9,981 emergency energy payments were issued
by the City to 1,450 PA heater households.
(Doyle Aff. ¶ 86.) Of the 9,981 payments, 266
were E-HEAP grants and 6,331 were repayable
state-funded loans. (Doyle Aff. ¶ 88.) Of the
1,450 PA heater households that faced a
heating emergency, 166 received E-HEAP
grants while 1,093 received the state-funded
repayable loans. (Doyle Aff. ¶ 89.) Doyle
further indicated that, in June 2007, .38% of
3

HEAP grants between March 2007 and March
2010. (Id. ¶¶ 35, 39, 45, 81-82.)

New York City’s 186,002 PA households
received a fuel-for-heating allowance, which
is added on as an additional payment on top
of public assistance normally received by PA
households, while, in April 2010, .28% of the
184,064 PA households received that
allowance. (Doyle Aff. ¶¶ 92-94, n. 59.)

B. Procedural History
Plaintiffs filed their motion to set aside the
March Order on February 13, 2011. The State
defendant filed its opposition on July 20, 2011.
The City defendant filed its opposition on July
20, 2011. Plaintiffs filed their reply on August
10, 2011. The Court has fully considered the
submissions and arguments of the parties.

In a FOIL submission dated December 3,
2009, plaintiffs requested from defendants
E-HEAP policies issued after the March
Order. (Vollmer Decl. Ex. 7 (the FOIL
request).) On December 18, 2009, plaintiffs
received defendants’ response. (Id. Ex. 8.)
Specifically, plaintiffs received four E-HEAP
Policy Directives dated April 18, 2007,
November 19, 2007, November 14, 2008,
and December 11, 2009. (Id. Ex. 9-12.)
Plaintiffs separately obtained the E-HEAP
Policy Directive dated October 29, 2010 (id.
Ex. 20), and November 18, 2010 (id. Ex. 26.)

II. STANDARD OF REVIEW
“Federal Rule of Civil Procedure 60(b)
governs motions for relief from a final
judgment or order and provides six
independent grounds for relief.” Burda Media,
Inc. v. Viertel, 417 F.3d 292, 298 (2d Cir.
2005). Rule 60(b) provides:

As noted above, plaintiffs also rely on
Doyle’s affidavit apart from his data
analysis. Doyle states that, based on his
experience, “the chasm between the City
Agency’s declared E-HEAP policies and the
street-level performance of the Job Centers
has only continued to widen since this action
was dismissed” in the Court’s March Order.
(Doyle Aff. ¶ 34.) In support of his
conclusion, Doyle relies on: (1) a
conversation that allegedly took place in
December 2008 with a member of HEAP
Central in which that member purportedly
indicated that the Job Centers “do their own
thing”; (2) an email exchange that took place
in March 2009 with an Assistant General
Counsel for the City in which he stated that
“the [City] Agency does not track or long the
information or data” regarding transmittal,
receipt and actions taken with respect to the
Forms; and (3) Doyle’s experience with a
client by the name of Brian Pedersen, who
experienced problems with obtaining E-

On motion and upon just terms, the
court may relieve a party . . . from a
final judgment, order, or proceeding for
the following reasons: (1) mistake,
inadvertence, surprise, or excusable
neglect; (2) newly discovered evidence
that, with reasonable diligence, could
not have been discovered in time to
move for a new trial under Rule 59(b);
(3) fraud . . ., misrepresentation, or
misconduct by an opposing party; (4)
the judgment is void; (5) the judgment
has been satisfied, released, or
discharged; it is based on an earlier
judgment that has been reversed or
vacated; or applying it prospectively is
no longer equitable; or (6) any other
reason that justifies relief.

4

quotation marks and citations omitted). Relief
under Rule 60(b)(6) is “properly invoked
where there are extraordinary circumstances, or
where the judgment may work an extreme and
undue hardship.” Matarese, 801 F.2d at 106
(internal citations omitted); see also Marrero
Pichardo v. Ashcroft, 374 F.3d 46, 55 (2d Cir.
2004).

Fed. R. Civ. P. 60(b).
The Second Circuit has instructed that
Rule 60(b) is “extraordinary judicial relief”
and can be granted “only upon a showing of
exceptional circumstances.” Nemaizer v.
Baker, 793 F.2d 58, 61 (2d Cir. 1986). “The
burden of proof is on the party seeking relief
from judgment[.]” United States v. Int’l Bhd.
of Teamsters, 247 F.3d 370, 391 (2d Cir.
2001).

III. DISCUSSION

Generally, “[f]or a Rule 60(b) motion to
prevail, a three-part test must be met. First,
there must be ‘highly convincing’ evidence
supporting the motion. Second, the moving
party must show good cause for failing to act
sooner. Third, the moving party must show
that granting the motion will not impose an
undue hardship on the other party.” Hemric
v. City of New York, No. 96 Civ. 213(DLC),
2001 WL 118561, at *4 (E.D.N.Y. Feb. 13,
2001) (citing Kotlicky v. U.S. Fidelity &
Guar. Co., 817 F.2d 6, 9 (2d Cir. 1987));
Fed. R. Civ. P. 60(c)(1)(“A motion under
Rule 60(b) must be made within a reasonable
time–and for reasons (1), (2), and (3), no
more than a year after the entry of the
judgment or order or the date of the
proceeding.”). See also D’Angelo v. State
Farm Fire & Cas. Co., 32 F. App’x 604, 605
(2d Cir. 2002) (“Material offered in support
of a motion to vacate under Rule 60(b)(6)
must be highly convincing material.”);
Boehner v. Heise, No. 03 Civ. 05453 (THK),
2009 WL 1360975, at *4-5 (S.D.N.Y. May
14, 2009) (applying the Rule 60(b) test to a
motion for relief under Rule 60(b)(6)).

Plaintiffs bring their motion under Rule
60(b)(6), arguing that: (1) the performance data
on the POS program for the years 2007-2009,
in combination with defendants’ Policy
Directives, indicates that defendants have
continued failing to provide notice of E-HEAP
determinations and mislabeling PA households
who would otherwise be eligible for E-HEAP
benefits; (2) it took over three years for
plaintiffs to gather the performance data; and
(3) based on this newly discovered evidence,
the March Order works an undue hardship on
plaintiffs. (Pls.’ Mot. at 3, 11-13, 19; Pls.’
Reply at 8.) Defendants do not dispute that
plaintiffs’ motion should be analyzed under
Rule 60(b)(6).1 They argue, however, that: (1)
plaintiffs’ motion was not made within a
reasonable time; (2) plaintiffs’ motion was not
supported by highly convincing evidence; and
(3) that undue hardship would be imposed on
defendants if the Court were to grant plaintiffs’
motion. (City Def.’s Mot. at 4; State Def.’s
Mot. at 7, 14-15.)
The Court agrees with defendants and
denies plaintiffs’ motion in its entirety.
Specifically, the Court concludes that
plaintiffs’ motion does not present highly
convincing evidence as to why plaintiffs
should be relieved from the March Order,
plaintiffs’ motion was not made within a
reasonable time, and granting relief in

Moreover, the catch-all subsection
60(b)(6) “confers broad discretion on the
trial court to grant relief when appropriate to
accomplish justice [and] it constitutes a
grand reservoir of equitable power to do
justice in a particular case.” Matarese v.
LeFevre, 801 F.2d 98, 106 (2d Cir. 1986),
cert denied, 480 U.S. 908 (1987) (internal

1

As a result, the Court treats plaintiffs’ motion as
properly made under Rule 60(b)(6).

5

plaintiffs’ favor would work an unreasonable
hardship on the defendants. Furthermore,
plaintiffs have failed to demonstrate that they
would either experience undue hardship if
the March Order remained in effect or that
extraordinary circumstances exist for setting
aside the March Order.

support of their contentions, plaintiffs rely on:
(1) Policy Directives issued by defendants
since the March Order; and (2) a database of
all PA households who requested any kind of
heat-related assistance from defendants
between April 1, 2007 through the end of 2009
(Vollmer Decl. Ex. 14 (letter outlining
parameters of database). The Court concludes
that this new evidence does not rise to the level
of highly convincing and, in fact, largely
reflects the very same information considered
by the Court in the March Order.

A. “Highly Convincing Evidence”
Requirement
Plaintiffs have not presented “highly
convincing” evidence that warrants relief
from the Court’s March Order. Plaintiffs
contend that the Utility Liaisons have
continued to screen E-HEAP applications,
solely passing along some applications to
HEAP Central for an official E-HEAP
determination and notice. (Pls.’ Mot. at 1113.) Plaintiffs also argue that defendants
have continued to mislabel public assistance
households by failing to provide them with a
fuel-for-heating allowance, thereby causing
these households to be bypassed from
consideration for an E-HEAP grant.2 (Id.) In

1. Policy Directives
a. Screening by Utility Liaisons
Plaintiffs assert that, with each successive
revision of defendants’ Policy Directives,
“Utility Liaisons retained the unilateral
discretion to abort the E-HEAP application
process by withholding the [Form] from HEAP
Central when, in their judgment, the household
was not E-HEAP eligible.” (Pls.’ Reply at 8.)
The Policy Directives do not support plaintiffs’
argument that the Utility Liaisons are taking on
the role of HEAP Central. For example, the
December 11, 2009 Directive (“2009
Directive”) makes clear that, while the Utility
Liaison continued to act as an intermediary
between the Job Centers and HEAP Central,
HEAP Central was responsible for determining
E-HEAP eligibility. (Vollmer Decl. Ex. 12.)
The 2009 Directive mandates that a Job Center
worker must complete the Form for any

2

Defendants appear to be under the impression
that plaintiffs are also asserting a separate, new
claim based on defendants’ failure to pay a “fuel
for heating” allowance and that such a claim
cannot be properly considered on a Rule 60(b)
motion. (State Def.’s Mot. at 17.) As plaintiffs
themselves point out, they are simply arguing
that they were not properly labeled as households
where heat is paid separately from the rent, a byproduct of which was their failure to receive a
“fuel for heating” allowance and failure to be
considered for E-HEAP benefits, for which they
were automatically eligible by virtue of paying
separately for heat. (Pls.’ Mot. at 11-12.) As the
Court noted in its March Order in considering
this very same argument, the issue is one of
“identifying heater households” that were eligible
for E-HEAP. Boyland, 487 F. Supp. 2d at 178.
In any event, as discussed infra, plaintiffs have

failed to provide highly convincing evidence that
they were being mislabeled. To the extent
plaintiffs are trying to raise a new argument based
on their not receiving a fuel-for-heating allowance,
such an argument is not properly considered under
a Rule 60(b) motion and may, instead, be brought
as a claim in a new complaint.

6

applicant requesting heat-related assistance.
(Id. at 4.) The Form must be signed and
forwarded to the Utility Liaison (id.), who
must proceed depending on the type of heat
the requesting household is using. (Id. at 6.)
For example, for households using natural
gas, the Utility Liaison “must contact HEAP
Central to initiate a HEAP application over
the telephone.” (Id.) For households using
oil or kerosene, “the Utility Liaison must
ensure, before contacting HEAP, that [the
Form] confirms that the household has a
participating oil vendor or has a nonparticipating oil vendor and: has a current
service plan in place, or has a current budget
plan with a cap price.” (Id.) The Utility
Liaison must then contact HEAP Central to
initiate an E-HEAP grant application over the
phone and must also fax a copy of the form
to HEAP Central.3 (Id. 6-7.) HEAP Central
then makes a determination whether or not
the application for E-HEAP benefits will be
granted.4 (Id. at 7.) The provisions in the

October 29, 2010 Directive (“October 2010
Directive”) and the November 18, 2010
Directive (“November 2010 Directive”)
regarding the role of the Utility Liaison mirror
those in the 2009 Directive.5 (Vollmer Decl.
Ex. 20 at 4, 6-7 (October 2010 Directive); Ex.
26 at 4, 6-7 (November 2010 Directive).)
Thus, the Policy Directives in no way
Utility Process.” (Vollmer Decl. Ex. 26 at 10.) As
an initial matter, this argument is not raised by
plaintiffs in their briefs. In any event, Doyle’s
argument is without merit. First, the Policy
Directives are not geared towards HEAP Central
and do not purport to outline all of its duties and
specific functions. (See, e.g. Id. at 1 (November
2010 Directive is “for staff in Job Centers and Non
Cash Assistance Food Stamp [] Centers.”); id. Ex.
9 (April 2007 Directive is for “Utility Liaisons and
all staff in the Job Centers.”).) Second, the
reference to the April 2007 Directive is specifically
in a section of the November 2010 Directive
outlining the responsibilities of the Utility Liaison,
not HEAP Central. Finally, the November 2010
Directive itself says nothing of what procedures
HEAP Central must take to provide notice to
applicants.

3

The Policy Directives indicate that, when
transmitting the Form to HEAP Central, the
Utility Liaison should include a
“[r]ecommendation” on the application whether
an E-HEAP grant is warranted. (Vollmer Decl.
Ex. 12 at 10 (2009 Directive); Id. Ex. 20 at 10
(October 2010 Directive); Id. Ex. 26 at 10
(November 2010 Directive).) However, that does
not mean that the Utility Liaison can withhold
some applications from HEAP Central based on
his or her evaluation of the Form. The
recommendation merely serves as an opinion that
HEAP Central may or may not take into
consideration.

5

Plaintiffs further argue that there is no indication
when the role of the Utility Liaison as an
intermediary between the applicant and HEAP
Central would be eliminated. (Pls.’ Reply at 8.)
Although it appears that the POS program was
being utilized to fill out the Form, there is no
indication in the Policy Directives that the Form
could be electronically transmitted to HEAP
Central without relying on the Utility Liaison to
make a phone call and fax the Form to HEAP
Central. However, the electronic transmission of
the Form does not affect this Court’s conclusion in
the March Order that the Utility Liaison was not
making the decision on E-HEAP eligibility.
Boyland, 487 F. Supp. 2d at 176, n. 9. The Court’s
decision in the March Order was not contingent
upon the POS being updated to electronically
transmit the Form to HEAP Central without any
involvement of a Utility Liaison. Id.

4

In his affidavit, Doyle suggests that HEAP
Central is solely notifying applicants whose EHEAP applications are granted but not those
whose applications are denied. (Doyle Aff. ¶¶
51-55.) In support of this argument, he points to
the April 18, 2007 Policy Directive (“April 2007
Directive”), which is referred to in the November
2010 Directive “for more information on the

7

budget. This coding will also ensure
that HEAP issues the correct amount in
the future.

demonstrate that the Utility Liaisons were
screening E-HEAP applications and solely
forwarding some applications that were
considered meritorious to HEAP Central.6

...
In order for the fuel allowance to
generate in the CA budget through
POS, users must:

b. Labeling of PA households

* click “Yes” in the Shelter (Housing)
Expenses window for the question: Do
You (Or Anyone Who Lives With
You) Have a Heat Bill Separate From
Your Rent Or Shelter Expense? Once
“Yes” is clicked, a “Response to
Question” drop-down window will
appear: . . .

As noted above, plaintiffs argue that the
City failed to properly label PA households
who paid for heating separately from their
rent, thereby bypassing them from
consideration for E-HEAP even though they
were automatically eligible for it by virtue of
paying separately for heat. (Pls.’ Mot. at 1113.) The Policy Directives do not support
plaintiffs’ argument that defendants are not
properly labeling PA households. For
example, the Policy Directives indicate that
Job Center workers are required to use the
POS electronic system when speaking with
applicants and that the POS program prompts
them to ask whether or not an applicant for
assistance is paying for heat separately.
Specifically, the 2009 Directive states:

* ensure that all information in the
drop-down window is entered
regarding the fuel type, account
number, and company’s name and
address, and click on the OK button.
(Vollmer Decl. Ex. 12 at 6, 11.) The October
2010 Directive includes the same provision
(id. Ex. 20 at 11-12), as does the November
2010 Directive (id. Ex. 26 at 11-12). In fact,
the Court considered similar evidence from
prior Policy Directives in its March Order and
concluded that the risk of erroneous
deprivation due to misidentifying PA
households was extremely low. Boyland, 487
F. Supp. 2d at 178. Thus, there is no support in
the Policy Directives for plaintiffs’ argument
that PA households are not properly labeled
based on whether or not they paid for heat
separately from their rent.

JOS/Workers must ensure that
applicants for Cash Assistance (CA)
or participants who pay for heat
separately from their rent have fuel
allowances included in their CA
grants. The correct fuel type and
shelter type code must be entered in
the Welfare Management System []
6

The Court notes that Doyle’s affidavit seems to
suggest that the policies in place are actually
proper, but that the Job Centers resorted to
entrenched procedures instead of following their
agencies’ new policies. (Doyle Aff. ¶ 34.) In
any event, as discussed infra, there is no support
in the data provided by plaintiffs that the Job
Centers were not performing their function
properly.

8

2. Database

of E-HEAP grants, it is unclear why that means
the Utility Liaisons are making those
determinations instead of HEAP Central. In
other words, plaintiffs wholly fail to provide
any evidence suggesting that the Utility
Liaisons are making the allegedly improper
determinations instead of HEAP Central. See,
e.g., Wolf v. Bd. of Educ. of the City of N.Y.,
162 F. Supp. 2d 192, 203 (S.D.N.Y. 2001)
(finding that plaintiff did not provide highly
convincing evidence in support of her Rule
60(b)(2) motion her conclusion was “mere
speculation”).
Plaintiffs’ arguments are
focused on the substantive merits of the loan
versus grant determination, rather than on the
process that is owed to plaintiffs. In short,
there is no highly convincing evidence from
this data that any due process violations are
taking place.

a. Screening by Utility Liaisons
Plaintiffs have wholly failed to link the
greater number of state-funded loans over EHEAP grants to conduct by the Utility
Liaisons. Plaintiffs are essentially arguing
that, looking at the database, defendants are
issuing an overwhelming number of statefunded repayable loans, instead of E-HEAP
grants. (Pl.’s Reply at 7-9; Supplemental
Aff. of Eugene Doyle dated August 10, 2011
(“Supplemental Doyle Aff.”) ¶¶ 30-50
(suggesting it takes less to qualify for an EHEAP grant than a repayable state-funded
loan.) However, plaintiffs are speculating on
the cause of such a disparity.7 In fact,
plaintiffs themselves state that the disparity
exists “for reasons unknown.” (Pls.’ Mot. at
19.) Even if the Court were to credit
plaintiffs’ analysis that the defendants are
improperly giving state-funded loans instead

b. Labeling of PA households
Plaintiffs also do not attempt to explain
how exactly the database reflects mis-coding or
mislabeling of PA households. As an initial
matter, the database solely pertained to PA
households who were receiving a fuel-forheating allowance (Pls.’ Reply at 5), and thus
the database reflects information on
households that were properly labeled.8 In any
event, the fact that more state-funded loans, as
opposed to E-HEAP grants, are being issued
does not mean that PA households are not
being given a heat-for-fuel allowance, and are
therefore bypassed from consideration for the
E-HEAP grant. As noted above, the cause for
the disparity in numbers is sheer speculation.
Plaintiffs have failed to present any evidence
whatsoever why this Court should deem the

7

Defendants point to other reasons for the
disparity. For example, the Court finds plausible
defendants’ arguments that more state-funded
loans may have been issued because: (1) statefunded loans are not just limited to heating
emergencies and may thus have been issued to
cover applications not solely limited to a heat
assistance request; (2) the E-HEAP program
season may have closed by the time the applicant
applied so that the applicant was only eligible for
the state-funded loan; or (3) the applicant may
not have satisfied all of the E-HEAP
requirements, even if eligible. (State Def.’s Mot.
at 10-11; cf. Doyle Supplemental Aff. ¶¶ 14-51.)
Plaintiffs contend that defendants “cannot come
up with a cogent alternative explanation” to their
own for the disparity. (Pls.’ Reply at 6.)
However, the burden is on the plaintiffs, not
defendants, to provide highly convincing
evidence—a burden plaintiffs have failed to
meet. See infra.

8

As noted supra, all PA households who pay for
heat separately from rent receive a fuel-for-heating
allowance and are automatically eligible for an EHEAP grant.

9

mislabeling of PA households the cause,
even if partial, for the disparity. This is
particularly true where the Policy Directives,
discussed supra, demonstrate that
defendants’ policies were consistent with
properly identifying and recognizing heater
households.

two E-HEAP cycles, for 2007-2008 and 20082009, before filing this motion. (Pl.’s Mot. at
6.) Plaintiffs contend that they were waiting
for all POS program procedures to be fully
implemented, but decided to proceed with this
motion after the 2008-2009 cycle because the
procedures still had not been fully
implemented. (Id. at 6-7.) However, it is
unclear why plaintiffs believed all procedures
had not been implemented prior to even
looking at the Policy Directives and database,
which they did not request until 2009.9
Furthermore, at the time of the March Order,
plaintiffs knew that defendants expected to
implement electronic transmission of the EHEAP application by October 2007. Thus,
even if the POS would not be fully
implemented by October 2007, plaintiffs could
have requested data and Policy Directives
relating to E-HEAP performance by the
defendants back in 2008 to see if they met their
initial goal for electronic transmission.
Plaintiffs made no such diligent effort and
provide no explanation for why no such
request was made beyond a conclusory
assertion that the new procedures and POS
program were not fully implemented by
defendants.10

***
In sum, defendants’ Policy Directives
provide the same outline of the Utility
Liaison’s responsibilities and labeling
procedures as the Policy Directives
considered by this Court in the March Order.
See Boyland, 487 F. Supp. 2d at 176-78.
Furthermore, there is nothing in the database
relied upon by plaintiffs to demonstrate that
either the Utility Liaisons were improperly
screening E-HEAP applications or that PA
households eligible for E-HEAP were being
mislabeled. Plaintiffs cannot use their
motion as a vehicle to relitigate the merits of
their case based on essentially the same facts
already presented to the Court before the
March Order. See, e.g., Skinner v. Chapman,
680 F. Supp. 2d 470, 479 (W.D.N.Y. 2010)
(concluding that plaintiff failed to present
any facts that bear upon the court’s previous
ruling and noting that a Rule 60(b) motion
“cannot be used to relitigate the merits of a
case”)

9

Plaintiffs argue that they requested the database
from defendants after receiving the Policy
Directives, which allegedly indicated to them that
the POS program was not fully implemented. (Pls.’
Mot. at 7). In fact, however, plaintiffs requested
the database in August 2009 prior to submitting a
FOIL request for the Policy Directives in December
2009. See supra. In any event, even accepting
plaintiffs’ sequence of events, the Court finds the
delay to be unreasonable.

B. Reasonableness of Delay
In addition to not providing highly
convincing evidence, plaintiffs also waited
for an unreasonable amount of time until
February 13, 2011 to file their motion,
almost four years after the Court granted
summary judgment in favor defendants on
March 27, 2007.

10

Even if plaintiffs needed to wait until 2009 to
obtain the most accurate and up-to-date data, it is
unclear why they submitted their FOIL requests for
the PA household data and Policy Directives in
August 2009 and December 2009, respectively,
even though the E-HEAP application cycle ended

As an initial matter, it is unclear why
plaintiffs had to wait for the completion of
10

In any event, most of the evidence
plaintiffs rely on in support of their motion
was in their possession by December 18,
2009. At that time, plaintiffs received all of
the requested Policy Directives, except for
the 2009-2010 year,11 which allegedly
demonstrate that defendants used Utility
Liaisons and perpetuated mis-coding in the
same way as prior to the Court’s March
Order. In addition, the events relied upon in
Doyle’s affidavit took place in 2008 and
early in 2009 so that by December 18, 2009,
plaintiffs should have been aware of them
had they been pursuing their claims
diligently. Although plaintiffs had most of
the information they used to file the pending
motion by December 18, 2009, they waited
until February 2011 to file their
papers—more than one year later.12

explanation for why they waited several years
after the March Order was issued to request the
Policy Directives and database; and (2) they
failed to file the motion when in possession of
most of the evidence they relied on in their
briefs. See, e.g., Kellogg v. Strack, 269 F.3d
100, 104 (2d Cir. 2001) (“Kellogg’s motion
was made twenty-six months after the entry of
the final judgment, a period of time which
constitutes a patently unreasonable delay
absent mitigating circumstances.”); Sonhouse
v. Nynex Corp., No. 96 Civ. 3326 (DLC), 2000
WL 60204, at *2 (S.D.N.Y. Jan. 24, 2000),
aff’d, 225 F.3d 646 (2d Cir. 2000) (court
determined that a delay of over three years was
unreasonably long for motion filed under Rule
60(b)(1) and (b)(6)); Graham v. Sullivan, No.
86 Civ. 163 (WK), 2002 U.S. Dist. LEXIS
9006, at *3-4 (S.D.N.Y. May 10, 2002) (delay
of over nineteen months was unreasonable for
a Rule 60(b)(6) motion).

In sum, the Court concludes that
plaintiffs waited an unreasonable amount of
time—approximately four years after the
Court’s March Order—to file this motion
where: (1) they failed to provide a credible

C. Undue Hardship

in March. (Pls.’ Mot. at 6.)

The Court also concludes that granting
plaintiffs’ motion would impose an undue
hardship upon defendants. The complaint in
this case was first filed in March 1992, more
than nineteen years ago. The Court granted
summary judgment in favor of defendants in
March 2007, approximately four years ago.
Plaintiffs have failed to show that having to relitigate plaintiffs’ complaint so long after the
complaint was filed and dismissed would not
impose an undue hardship on defendants. In a
protracted litigation like this one, that spanned
several decades, there is a strong interest in the
finality of the Court’s judgment.

11

Plaintiffs failed to articulate any reason why
they absolutely needed the 2009-2010 Policy
Directives where they already had in their
possession multiple Policy Directives that
allegedly perpetuated the role of the Utility
Liaison as the arbiter of E-HEAP applications
and the mis-coding issue raised by plaintiffs.

12

Plaintiffs did not receive the database of PA
heater households until July 27, 2010. As an
initial matter, that data had nothing to do with the
notice and coding issues raised by plaintiffs, so
that plaintiffs did not need the database to file
their motion. See supra Section III.A. In any
event, plaintiffs waited an additional seven
months after receiving this data to file the
pending motion, even though by the time they
received the database they had all the other
information they now rely on in their motion.

11

more, constitute ‘exceptional circumstances.’”
Chiulli v. I.R.S., No. 03 Civ. 6670(HBP), 2006
WL 3008084, at *3 (S.D.N.Y. Oct. 20, 2006)
(citing Atkinson v. Prudential Property Co., 43
F.3d 367, 373 (8th Cir. 1994)).

D. Extraordinary Circumstances or
Undue Hardship on Plaintiffs
Finally, plaintiffs have not demonstrated
that
extraordinary circumstances
necessitating relief from judgment exist or
that the Court’s refusal to grant such relief
would cause undue hardship on the
plaintiffs—either one of which would satisfy
the requirements specific to Rule 60(b)(6).

In addition, plaintiffs claim that justice
demands relief from judgment based on
counsel’s failure to obtain attorney’s fees.
Specifically, plaintiffs argue that defendants
“scrambled to initiate some form of corrective
action” so as to avoid settlement and having to
pay attorney’s fees. (Pls.’ Mot. at 24-25.)
However, “[c]ounsel cannot demonstrate that
vacatur is in the interest of justice, because
Counsel cannot point to any error in the
analysis or findings” in the March Order. Trief
v. Dun & Bradstreet Corp., No. 98 Civ. 1741
(DNE), 1994 WL 9781, at *3 (S.D.N.Y. Jan.
11, 1994). To the extent plaintiffs’ counsel
takes issue with the Supreme Court’s decision
in Buckhannon Board and Care Home,
Incorporated v. West Virginia Department of
Health and Human Services, 532 U.S. 598
(2001), because plaintiffs cannot get attorney’s
fees unless there is an order, judgment or
consent decree in plaintiff’s favor even if the
ultimate goals of the litigation are achieved
(Vollmer Decl. ¶¶ 62-81), plaintiffs’
disagreement with this binding Supreme Court
precedent is obviously not a basis for relief
under Rule 60(b)(6).

Plaintiffs have failed to demonstrate that
extraordinary circumstances exist for relief
from judgment. Plaintiffs argue that they
have presented extraordinary circumstances
for relief where they are “without fault for
[their] predicament and could not have
undertaken any steps to prevent the judgment
from which relief is sought.” (Pls.’ Mot. at
10.) However, extraordinary circumstances
“typically do not exist where the applicant
fails to move for relief promptly.” Grace v.
Bank Leumi Trust Co. of N.Y., 443 F.3d 180,
190 n. 8 (2d Cir. 2006). The Court concludes
that plaintiffs should have acted sooner in
filing their motion for relief from judgment.
See supra Section III.B. Nor have plaintiffs
demonstrated that they “would be left
without a remedy if [their] motion were not
granted[,]” which would qualify as an
extraordinary circumstance. LeBlanc v.
Cleveland, 248 F.3d 95, 101 (2d Cir. 2001).
Plaintiffs have not indicated anywhere in
their papers that they would be barred from
filing a new complaint against defendants
based on the evidence they are relying on in
their motion.

***
In sum, plaintiffs have failed to satisfy any
of the requirements for a successful Rule
60(b)(6) motion, and have not demonstrated
extraordinary circumstances or an undue
hardship that would warrant such relief.

Similarly, plaintiffs have not pointed to
any concrete evidence of hardship that they
have or will experience as a result of
defendants’ policies. See supra Section
III.A.
“The potentially unfavorable
consequences that result from an adverse
judgment properly arrived at do not, without
12

IV. CONCLUSION
For the reasons set forth above, plaintiffs’
motion for relief from judgment is denied.

______________________
JOSEPH F. BIANCO
United States District Judge
Dated: September 28, 2011
Central Islip, NY
***
The attorney for plaintiffs is Peter
Vollmer, Vollmer & Tanck, Jericho Atrium,
500 North Broadway, Suite 149, Jericho,
New York 11753. The attorney for the State
defendant is Eric T. Schneiderman, New
York State Attorney General, by Vincent
Leong, Assistant Attorney General, 120
Broadway, 24th Floor, New York, New York
10271. The attorney for the City defendant
is Michael A. Cardozo, Corporation Counsel
of the City of New York, by David A.
Rosinus, Jr., Office of Corporation Counsel,
100 Church Street, New York, New York,
10007.

13