TADCO Construction Corp. et al v. Dormitory Authority of the State of New York et al

Filing 82

ORDER denying 75 Motion for Reconsideration; denying 76 Motion for Reconsideration. For the reasons stated in the attached Memorandum and Order, the court denies plaintiff's motion for reconsideration. Defendants are ordered to (1) serve plaintiff DeMartino with a copy of this order and (2) file a declaration of service by February 15, 2012. In addition, by March 2, 2012, the parties shall file a joint status report regarding how they intend to proceed. Ordered by Judge Kiyo A. Matsumoto on 2/14/2012. (Chang, Emily)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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TADCO CONSTRUCTION GROUP CORP. and
THOMAS DEMARTINO,
Plaintiffs,

MEMORANDUM & ORDER

- against –

08-CV-73 (KAM)(JMA)

DORMITORY AUTHORITY OF THE STATE OF NEW
YORK, TYRONE MIDDLETON, PAT CINELLI,
JAMES GRAY, JACK KEMP and JOHN DOES
#1-#5,
Defendants.
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MATSUMOTO, UNITED STATES DISTRICT JUDGE:
On September 19, 2011, plaintiff DeMartino filed a
motion for reconsideration of Judge Trager’s March 19, 2010
order on defendant’s motion to dismiss pursuant to Federal Rule
of Civil Procedure 12(b)(6).

(See ECF Nos. 75 & 76, Plaintiff’s

Motion for Reconsideration.)

For the reasons set forth below,

the court denies plaintiff DeMartino’s motion for
reconsideration.
The decision to grant or deny a motion for
reconsideration falls squarely within the discretion of the
district court.

See Devlin v. Transp. Commc’ns Int’l Union, 175

F.3d 121, 132 (2d Cir. 1999).

Local Civil Rule 6.3 provides

that a party moving for reconsideration must set forth

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“concisely the matters or controlling decisions which counsel
believes the court has overlooked.”

Local Rule 6.3.

Undoubtedly, the “standard for granting such a motion is strict,
and reconsideration will generally be denied unless the moving
party can point to controlling decisions or data that the court
overlooked . . . 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) (citations omitted).

The court

has examined whether plaintiff’s motion for reconsideration
identifies any matters or controlling decisions that Judge
Trager overlooked in his March 19, 2010 order and finds that
reconsideration is not warranted.
Plaintiff primarily grounds his motion for
reconsideration upon a claim that Judge Trager inappropriately
considered a document outside of the pleadings (i.e., a November
9, 2006 letter from DASNY project manager Krystyna Gruca), but
the record does not support plaintiff’s contention.

First,

Judge Trager explained that in deciding the motion, he
considered only (1) plaintiff’s complaint, (2) a short governing
contract attached to the complaint, and (3) a longer document
containing the contract’s General Conditions and Specifications
and Drawings, which was incorporated into the pleadings by
reference.

(See Order dated 3/19/2010 at 12.)

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Moreover, Judge

Trager explicitly stated in footnote 1 of his decision that he
would not consider any of the additional exhibits defendants
proffered, “including several letters exchanged between DASNY
and TADCO” (i.e., including the November 9, 2006 letter).
Second, the court has reviewed Judge Trager’s order
and determines that he did not cite to or rely on any other
documents outside the pleadings, other than those explicitly
identified, in rendering the decision.

Judge Trager reaffirmed

in footnote 7 that he would not consider the November 9, 2006
letter about which plaintiff DeMartino now complains.
this letter were considered . . . “).

(“Even if

Furthermore, plaintiff

has not pointed to any “controlling decisions or data that the
court overlooked” and that would have caused Judge Trager to
sustain plaintiff’s false arrest claim arising out of his
January 2007 arrest.
The court also finds that reconsideration is not
warranted “to correct a clear error or prevent a manifest
injustice.”

See Official Comm. of the Unsecured Creditors of

Color Tile, Inc. v. Coopers & Lybrand, LLP, 322 F.3d 147, 167
(2d Cir. 2003) (citation and internal quotation marks omitted).
Although plaintiff claims that he was not given an opportunity
to oppose this motion because defendants did not serve him with
the motion and plaintiff was unrepresented at the time the
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motion was filed, he has not raised any defense or fact in his
motion for reconsideration that would have altered Judge
Trager’s decision.

Accordingly, the court denies plaintiff’s

motion for reconsideration.

Defendants are ordered to serve

plaintiff DeMartino with a copy of this order and file a
declaration of service by February 15, 2012.

In addition, by

March 2, 2012, the parties shall file a joint status report
regarding how they intend to proceed.

SO ORDERED.
Dated:

Brooklyn, New York
February 14, 2012
______________/s/______________
KIYO A. MATSUMOTO
United States District Judge
Eastern District of New York

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