Lilakos et al v. New York City et al

Filing 61

MEMORANDUM AND ORDER: For the reasons in the attached, the Court denies both parties' motions for reconsideration. Plaintiff Louis Lilakos has thirty (30) days from the date of this Order to file an Amended Complaint that names the officers alle gedly involved in his excessive force claim, supplements his equal protection class-of-one allegations, and adds Christopher Lilakos as a plaintiff, to the extent he is asserting claims that have not previously been dismissed. Ordered by Judge Pamela K. Chen on 11/15/2016. (Merin, Eric)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-------------------------------------------------------x
LOUIS LILAKOS, NICK PRITZAKIS,
TIFFANY LILAKOS,
Plaintiffs,
- against NEW YORK CITY, VLADIMIR PUGACH,
NYPD SERGEANT ARTHUR LEVINE,
NYPD OFFICER JOSEPH GIGLIO, FIRE
DEPT. INSPECTOR ERVIN SANTIAGO,
KATHLEEN MCGEE, NYC MAYOR’S
OFFICE OF SPECIAL ENFORCEMENT,
NYC DEPARTMENT OF BUILDINGS,
DEREK LEE, ENVIRONMENTAL
CONTROL BOARD,

MEMORANDUM & ORDER
14-CV-05288 (PKC) (LB)

Defendants.
-------------------------------------------------------x
PAMELA K. CHEN, United States District Judge:
On September 30, 2016, this Court issued a Memorandum and Order (the “M&O”)
adopting the Honorable Lois Bloom’s January 21, 2016 Report and Recommendations (the
“R&R”), which recommended granting, in part, and denying, in part, Defendants’ motions to
dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and (6). (Dkt. 55.) Both parties
now move for reconsideration. For the reasons set forth below, the parties’ motions are denied.

DISCUSSION 1
I.

PLAINTIFFS’ MOTION
Local Rule 6.3 provides that motions for reconsideration must be served within fourteen

days after the entry of a court order. E.D.N.Y. Local Civ. R. 6.3. “A party’s failure to make a
motion for reconsideration in a timely manner is by itself a sufficient basis for denial of the
motion.” Grand River Enters. Six Nations, Ltd. v. King, 02 Civ. 5068, 2009 WL 1739893, at *1
(S.D.N.Y. June 16, 2009). A plaintiff’s “pro se status does not insulate him [or her] from
complying with the relevant procedural rules.” Gibson v. Wise, 331 F. Supp. 2d 168, 169
(E.D.N.Y. 2004).
Here, the M&O was issued and mailed to Plaintiffs on September 30, 2016. Plaintiffs’
motion for reconsideration is dated October 26, 2016, well outside the fourteen-day period. For
this reason alone, Plaintiffs’ motion should be denied. However, there is authority in this Circuit
for treating untimely motions for reconsideration as a motion for relief from a judgment or order
pursuant to Rule 60(b). Manney v. Intergroove Tontrager Vertriebs GMBH, 10-CV-4493, 2012
WL 4483092, at *1 (E.D.N.Y. Sept. 28, 2012); see also Lora v. O'Heaney, 602 F.3d 106, 111 (2d
Cir. 2010) (treating untimely Rule 59 motion as a Rule 60 motion). “Rule 60(b) permits the
Court to relieve a party from an order in the event of mistake, inadvertence, excusable neglect,
newly discovered evidence, fraud, or for other reason that justifies relief.” Dziennik v. Sealift,
Inc., 04-CV-1244, 2015 WL 1469323, at *2 (E.D.N.Y. Mar. 30, 2015).
“A motion for reconsideration under Rule 60(b) is addressed to the ‘sound discretion of
the district court and . . . [is] generally granted only upon a showing of exceptional
1

The Court presumes the parties’ familiarity with the underlying facts of this action as
they have been set forth in great detail in this Court’s M&O and Judge Bloom’s R&R.
Accordingly, only the facts necessary for the decisions on the parties’ motions are discussed
herein.
2

circumstances.’” Louis v. Bezio, 11-CV-1409, 2015 WL 4872542, at *1 (E.D.N.Y. Aug. 12,
2015) (quoting Mendell v. Gollust, 909 F.2d 724, 731 (2d Cir. 1990)) (alteration in original). A
motion for reconsideration “is 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), as amended
(July 13, 2012) (citation and internal quotation marks omitted); In re Houbigant, Inc., 914 F.
Supp. 997, 1001 (S.D.N.Y. 1996) (reconsideration motion is “not a motion to reargue those
issues already considered when a party does not like the way the original motion was resolved”).
Thus, a motion for reconsideration “should not be used as a vehicle simply to voice disagreement
with the Court’s decision[.]” Premium Sports Inc. v. Connell, 10-CV-3753, 2012 WL 2878085,
at *1 (S.D.N.Y. July 11, 2012) (citation and internal quotation marks omitted).
Even construing Plaintiffs’ untimely Local Rule 6.3 motion as a timely Rule 60(b)
motion, it still must be denied. Plaintiffs fail to identify any “mistake, inadvertence, excusable
neglect, newly discovered evidence, fraud, or . . . other reason that justifies relief” under Rule 60.
Dziennik, 2015 WL 1469323, at *2. Notably, the vast majority of Plaintiffs’ motion is devoted
to purported errors made by Judge Bloom in her R&R, rather than deficiencies in this Court’s
M&O adopting Judge Bloom’s findings. (See, e.g., Dkt. 57-1 at ECF 7 (“[Magistrate Judge
Bloom’s Report and Recommendation (“MJBR”)] page 4 states . . . [t]his is clearly wrong”),
ECF 9 (“The MJBR erroneously asserts”), ECF 10 (“On page 17, the MJBR states”), ECF 11
(“Because the MJBR considers . . . plaintiffs should be permitted to amend”), ECF 11 (“Contrary
to this MJBR finding”), ECF 12 (“Contrary to the MJBR’s claim”).) 2 In other words, Plaintiffs
simply seek to re-argue the issues that were resolved by Judge Bloom and that Plaintiffs already
2

Citations to “ECF” refer to the pagination generated by the Court’s electronic docketing
system and not the documents internal pagination.
3

had the opportunity to contest through their objections to the R&R. 3 To the extent Plaintiffs
failed to object to portions of the R&R in the first instance, a motion for reconsideration cannot
be used to “mak[e] new arguments that could have previously been made.” Premium, 2012 WL
2878085. In any event, the Court has reviewed the entirety of Plaintiffs’ submissions and finds
that none of their arguments demonstrate the "exceptional circumstances” required to succeed on
a Rule 60(b) motion. Accordingly, Plaintiffs’ motion for reconsideration of this Court’s M&O is
denied. 4
II.

DEFENDANTS’ MOTION
Unlike Plaintiffs’ motion, Defendants’ motion for reconsideration was timely filed. (Dkt.

56.) Motions for reconsideration are “entrusted to the discretion of the court.” Darnley v.
Ameriquest Mortg. Co., 06-CV-4265, 2010 WL 1037971, at *1 (E.D.N.Y. Mar. 17, 2010) (citing
McCarthy v. Manson, 714 F.2d 234, 237 (2d Cir. 1983)). The grounds 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.” Kolel Beth Yechiel Mechil of
Tartikov, Inc. v. YLL Irrevocable Trust, 728 F.3d 99, 104 (2d Cir. 2013) (citation and internal
quotation marks omitted). “The standard for granting [a reconsideration motion] 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

3

Plaintiffs’ request the Court’s M&O be modified based on the “argument set forth [in
the reconsideration motion] and all briefs submitted previously” is a tacit concession that the
arguments contained in Plaintiffs’ motion are largely reiterations and permutations of arguments
previously made. (Dkt. 57-1 at ECF 4-5.)
4

Plaintiffs also request that they be permitted to add Christopher Lilakos as an additional
plaintiff because he is now 18 years old. (Dkt. 57-1 at ECF 5.) The Court permits this
amendment to the extent the allegations and claims made in the Complaint on behalf of
Christopher Lilakos have not been previously been dismissed.
4

expected to alter the conclusion reached by the court.” Shrader v. CSX Transp., Inc., 70 F.3d
255, 257 (2d Cir. 1995) (citations omitted). “In addition, the moving party must demonstrate
that the factual matters or controlling precedent overlooked by the court were presented to it on
the underlying motion.” Darnley, 2010 WL 1037971, at *1 (citation and internal quotation
marks omitted). The Court addresses Defendants’ arguments in turn.
Defendants first ask the Court to clarify whether Plaintiffs’ procedural and substantive
due process claims proceed against the six individually named Defendants (“Individual
Defendants”). (Dkt. 56-1 at ECF 8.) To clarify, the Court permits the claims to proceed against
the City and the six Individual Defendants. If, after filing an answer or completing discovery,
Defendants still contend that the Individual Defendants were not involved in the underlying acts
that form the bases of Plaintiffs’ due process claims, then Defendants may move for judgment on
the pleadings or summary judgment at that time. 5
Defendants’ next argument takes no issue with the Court’s M&O, but rather asks the
Court to forgive Defendants’ “counsel’s oversight” for not raising an argument before Judge
Bloom and reconsider whether Plaintiffs’ malicious prosecution should be dismissed. (Dkt. 56-1
at ECF 12.) The Court declines to do so. In the M&O, the Court made clear that its decision on
Plaintiffs’ malicious prosecution claim rested not only on Defendants’ failure to raise their
arguments before Judge Bloom, but also because Defendants failed to provide “any legal support
for their position.” (Dkt. 55 at ECF 14 n.16.) In any event, “a party is barred from making for
the first time in a motion for reconsideration an argument it could readily have raised when the
5

Defendants’ contention that they “did not have the opportunity to address” this
argument below “[b]ecause [they] did not initially construe Lilakos’s procedural due process [or
substantive due process claim] in this manner,” is contradicted by the fact that they could have
raised the issue in their objections to Judge Bloom’s R&R, especially given that the bulk of their
argument here cites to Judge Bloom’s R&R, not this Court’s M&O. (Dkt. 56-1 at ECF 9.)
5

underlying issue was being briefed but chose not to do so.” Associated Press v. U.S. Dep't of
Def., 395 F. Supp. 2d 17, 20 (S.D.N.Y. 2005). As Defendants acknowledge, they could have
made this argument below, but did not. Therefore, it is improper to raise this argument on a
motion for reconsideration and it must be rejected. Levin v. Gallery 63 Antiques Corp., 04-CV1504, 2007 WL 1288641, at *2 (S.D.N.Y. Apr. 30, 2007) (rejecting argument that court should
consider deposition testimony on a motion for reconsideration, which was “inadvertently
omitted” from the briefing below).
Lastly, Defendants yet again “request[] that the Court resolve the qualified immunity
defense of the six Individual Defendants sued in their personal capacities[.]” (Dkt. 56-1 at ECF
19.) 6 Rather than articulate “an intervening change of controlling law, the availability of new
evidence, or the need to correct a clear error or prevent manifest injustice,” Kolel, 728 F.3d at
104, Defendants mostly reargue their qualified immunity assertions from below. Accordingly,
Defendants are merely using their reconsideration motion “as a vehicle simply to voice
disagreement with the Court’s decision,” which is wholly improper and must be rejected.
Premium, 2012 WL 2878085, at *1. As explained in the Court’s M&O, the Court found no clear
error in the R&R’s conclusion that it was premature to address Defendants’ qualified immunity
defense, and Defendants have presented no reason to reconsider that conclusion.
CONCLUSION
For the reasons set forth above, the Court denies both parties’ motions for
reconsideration. Plaintiff Louis Lilakos has thirty (30) days from the date of this Order to file an
Amended Complaint that names the officers allegedly involved in his excessive force claim,
6

Defendants also request that the Court permit limited discovery on the qualified
immunity issue. (Dkt. 56-1 at ECF 19.) Such a request is improper on a motion for
reconsideration. If Defendants wish to conduct limited discovery on the issue of qualified
immunity, they should raise the issue with Judge Bloom at their next discovery conference.
6

supplements his equal protection class-of-one allegations, and adds Christopher Lilakos as a
plaintiff, to the extent he is asserting claims that have not previously been dismissed.
SO ORDERED.
/s/ Pamela K. Chen
Pamela K. Chen
United States District Judge
Dated: November 15, 2016
Brooklyn, New York

7