Sabatini Frozen Foods, LLC v. Weinberg, Gross & Pergament, LLC et al

Filing 31

ORDER denying 26 Motion for Reconsideration -- For the reasons set forth in the ATTACHED WRITTEN SUMMARY ORDER, defendants' motion for reconsideration is denied in its entirety. SO ORDERED by Chief Judge Dora Lizette Irizarry on 9/1/2016. (Irizarry, Dora)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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SABATINI FROZEN FOODS, LLC,
:
:
Plaintiff,
:
:
-against:
:
WEINBERG, GROSS & PERGAMENT, LLP &:
MARC ALAN PERGAMENT,
:
:
Defendants.
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SUMMARY ORDER
14-CV-02111 (DLI)(ST)

DORA L. IRIZARRY, Chief U.S. District Judge:
On September 23, 2015, the Court granted in part and denied in part Defendants’ motion
to dismiss the Complaint (the “Decision”).1 (See 09/23/15 Mem. & Or., Dkt. Entry No. 23.) The
Complaint asserted a claim for actual and treble damages under New York Judiciary Law § 487
and contained three main categories of allegations. (Id. at 8.) In the Decision, the Court permitted
Plaintiff to proceed only with respect to allegations concerning the fraudulent filing of the
Bankruptcy and dismissed the other two categories of allegations for failure to state a claim. (Id.
at 8-13.) In holding that Plaintiff’s surviving category of allegations sufficiently stated a claim,
the Court found that “[w]hether Semon by his earlier inaction ratified the Bankruptcy, and thereby
supplied an ‘intervening and superseding cause’ of Plaintiff’s damages, presents yet another
question of fact that cannot be resolved at this stage of the litigation.” (Id. at 13.) Defendants now
seek reconsideration of this portion of the Decision. (See Mot. For Recons. (“Defendants’ Mot.”)
Dkt. Entry No. 26.) Plaintiff opposes. (Dkt. Entry. No. 27.) For the reasons set forth below,
Defendants’ motion for reconsideration is denied.

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This Order is written for the parties and familiarity with the underlying facts and circumstances of this action is
assumed. For a full discussion of this action, see the Decision. The Court incorporates all party-name abbreviations
and designations from the Decision in this Order.

DISCUSSION
“The standard for granting [a motion for reconsideration] is strict, and reconsideration will
generally 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.” Shrader v. CSX Transport, Inc., 70 F. 3d 255, 257 (2d Cir. 1995). Typical
grounds for reconsideration include “‘an intervening change of controlling law, the availability of
new evidence, or the need to correct a clear error or prevent manifest injustice.’” Kolel Beth
Yechiel Mechil of Tartikov, Inc. v. YLL Irrevocable Trust, 729 F.3d 99, 104 (2d Cir. 2013) (quoting
Virgin Atl. Airways, Ltd. v. Nat'l Mediation Bd., 956 F.2d 1245, 1255 (2d Cir.1992)). “[A] motion
for reconsideration is not an opportunity for litigants to reargue their previous positions or present
new or alternative theories that they failed to set forth in connection with the underlying motion.”
Callari v. Blackman Plumbing Supply, Inc., 988 F. Supp.2d 261, 287 (E.D.N.Y. 2013).
Defendants’ basis for reconsideration is that the Court overlooked “the principle that in the
bankruptcy context, repudiation does not occur until the objecting party ‘seek[s] relief’ from the
bankruptcy court based on the debtor’s alleged lack of authority to file the bankruptcy.”
(Defendants’ Mot., at 3.) According to Defendants, had the Court considered this principle, it
would have concluded that Semon’s ratification of the Bankruptcy constituted an intervening and
superseding cause of Plaintiff’s alleged damages and dismissed the claim. (Id. at 7.)
Defendants’ argument does not meet the strict standard for reconsideration. Defendants
fail to point to any controlling law that the Court overlooked or a clear error that the Court
committed in rendering the Decision. In seeking reconsideration, Defendants rely on the same
cases that they relied on in their motion to dismiss, a fact conceded by Defendants. (See Mot. For
Recons., at 4 n. 3.) These cases are either not controlling or are inapposite. For example,

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Defendants rely on In re Scotto, 2010 WL 1688743, at *12 (Bankr. E.D.N.Y. Apr. 26, 2010), which
held that the debtor’s inaction “effectively affirmed the act which he alleges was unauthorized,”
Id., and on In re Martin-Trigona, 760 F.2d 1334, 1341 (2d Cir. 1985), which stated that, “If a
corporation acquires or is charged with knowledge of an unauthorized act undertaken by someone
on its behalf, and does not repudiate that act within a reasonable time, but instead acquiesces in it,
the corporation is bound by the act.” Id. Neither case addresses the precise question the Court
found presented an issue of fact in ruling on the motion to dismiss: whether Semon’s inaction
supplied an intervening and superseding cause of Plaintiff’s damages. Put differently, neither
decision addresses whether a third party is prevented from recovering damages when another
party’s acquiescence ratifies a Bankruptcy. Defendants’ reliance on RLI Ins. Co. v. Athan
Contracting Corp., 667 F. Supp.2d 229, 236 (E.D.N.Y. 2009), similarly is misplaced because that
case resolved the ratification issue on summary judgment and not on a motion to dismiss.
The other cases cited by Defendants, Hager v. Gibson, 108 F.3d 35, 40 (4th Cir. 1997) and
In re Horob Livestock, Inc., 2007 WL 2783361, at *3 (Bankr. D. Mont. Sept. 21, 2007), are not
binding because they are not from either the Supreme Court or the Second Circuit. See DirecTV,
LLC v. Borbon, 2015 WL 7281636, at *1 (E.D.N.Y. Nov. 16, 2015) (“Plaintiff exclusively points
to decisions by other district courts, which constitute persuasive, not controlling authority.”);
Taylor v. Cuomo, 2008 WL 63283, at *2 (E.D.N.Y. Jan. 3, 2008).
Finally, and significantly, Defendants simply repackaged the arguments they made in their
motion to dismiss to express their disagreement with this Court’s finding. When moving to
dismiss, Defendants argued that, “[W]hether Acme authorized Defendants to commence the
Bankruptcy proceeding is a non-issue because Semon’s extended acquiescence to the Bankruptcy
constitutes ratification of Acme’s Bankruptcy filing as a matter of law[.]” (See Dkt. Entry No. 16,

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at 15-16.) Now, in hindsight and with the benefit of the Court’s decision, Defendants reword that
argument and assert that Semon was required to repudiate the Bankruptcy affirmatively and that
his failure to do so ratified the Bankruptcy. (See Defendants’ Mot., at 6-7.) A motion for
reconsideration is not an invitation either to relitigate an issue, take a second bite at the apple, or
disagree with the Court’s prior decision. See Lichtenberg v. Besicorp Grp. Inc., 28 F. App’x 73,
75 (2d Cir. 2002) (Summary Order). Without presenting any precedent, which is contrary to this
Court’s finding, the motion for reconsideration must be denied.
CONCLUSION
For the foregoing reasons, Defendants’ motion for reconsideration is denied.
SO ORDERED.
Dated: Brooklyn, New York
September 1, 2016
______________/s/______________
DORA L. IRIZARRY
Chief Judge

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