Thieriot et al v. Jaspan Schlesinger Hoffman, LLP et al
Filing
148
ORDER denying 132 Motion for Reconsideration. For the reasons set forth in the attached Memorandum and Order, plaintiffs' motion for reconsideration is denied. Ordered by Judge Denis R. Hurley on 11/10/2016. (Kaley, Regina)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------------------------------ELIZABETH THIERIOT, individually and
as TRUSTEE of the ELIZABETH
THIERIOT REVOCABLE TRUST, and the
ELIZABETH THIERIOT REVOCABLE
TRUST,
Plaintiffs,
MEMORANDUM AND ORDER
07-CV-5315 (DRH) (AKT)
-againstJASPAN SCHLESINGER HOFFMAN, LLP,
STEPHEN P. EPSTEIN, LISA M. GOLDEN,
ALAN K. HIRSCHHORN, and SETH H. ROSS,
Defendants.
-----------------------------------------------------------X
APPEARANCES:
For the Plaintiffs:
THEODORE S. STEINGUT
One Whitehall Street, 17th Floor
New York, NY 10004
By:
Theodore S. Steingut, Esq.
For the Defendants:
WALSH, MARKUS, McDOUGAL & DeBELLIS, LLP
229 Seventh Street
Garden City, NY 11530
By: Paul R. McDougal, Esq.
Hurley, Senior District Judge:
Elizabeth Thieriot (“Thieriot” or “plaintiff”) and the Elizabeth Thieriot Revocable Trust
(collectively “plaintiffs”) commenced this action alleging malpractice claims against the law
firm Jaspan Schlesinger Hoffman, LLP (“Jaspan”) and four of its partners, Stephen P. Epstein,
Lisa M. Golden, Alan K. Hirschhorn, and Seth H. Ross (collectively “defendants”) with respect
to defendants’ representation of plaintiffs pursuant to a sale of property located in Sands Point,
New York (“the House” or “the Property”) and a related specific performance action. The Court
assumes familiarity with the facts as set forth in prior orders in this case.
On October 18, 2016, the Court issued a Memorandum and Order ruling on the parties’
respective motions in limine (the “October Order”). Presently before the Court is plaintiffs’
motion to reconsider a portion of the October Order barring plaintiffs from seeking recovery
based on lost profits it asserts were sustained in 2006 (the “ 2006 Lost Profits Claim”). For the
reasons set forth below, that motion is denied.
I.
Standard of Review for Motion for Reconsideration
The decision to grant or deny a motion for reconsideration lies squarely within the
discretion of the district court. See Devlin v. Transp. Comm'ns Int'l Union, 175 F.3d 121, 132
(2d Cir. 1999). The standard for a motion for reconsideration “is strict, and reconsideration will
generally be denied unless the moving party can point to controlling decisions or [factual] 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 Transp., Inc., 70 F.3d 255, 257 (2d Cir.
1995); accord Arum v. Miller, 304 F.Supp.2d 344, 347 (E.D.N.Y. 2003); see also U.S. Titan, Inc.
v. Guangzhou Zhen Hua Shipping Co., 182 F.R.D. 97, 100 (S.D.N.Y. 1998) (concluding that a
motion for reconsideration under Local Civil Rule 6.3 “provides the Court with an opportunity to
correct manifest errors of law or fact, hear newly discovered evidence, consider a change in the
applicable law or prevent manifest injustice”). The moving party, however, may not repeat
“arguments already briefed, considered and decided.” Schonberger v. Serchuk, 742 F.Supp. 108,
119 (S.D.N.Y. 1990); accord Polsby v. St. Martin's Press, Inc., 2000 WL 98057, at *1 (S.D.N.Y.
Jan. 18, 2000); see also Medoy v. Warnaco Employees' Long Term Disability Ins. Plan, 2006
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WL 355137 (E.D.N.Y. Feb. 15, 2006) (“The standard for ... reconsideration is strict in order to
dissuade repetitive arguments on issues that have already been considered fully by the Court.”).
II.
Plaintiffs’ Argument
Plaintiffs argue that the Court “misapprehended the facts and Plaintiffs’ theory as to
damages flowing from what should have been their ability to sell the property in or about
January 2006,” what the Court referred to in the October Order as the 2006 Lost Profits Claim.
(Pls.’ Mem. in Supp. at 2.) In the October Order, the Court barred plaintiffs from seeking
recovery based on this claim, ruling that it was “too speculative.” (Order at 5.) Though not
submitted with their original motion papers, plaintiffs now provide to the Court “expert
testimony from an appraiser,” Howard Morris, which was done on June 16, 2009 and sets forth
the fair market value of the house in 2006. (Pls.’ Mem. in Supp. at 3.) Plaintiffs claim that
through this appraisal they “should be able to prove their damages” with respect to the 2006 Lost
Profits Claim. (Id.) Left unexplained is why this appraisal was not furnished as part of the initial
motion.
The Court, however need not reach the issue of whether the belatedly furnished appraisal
cures the speculative nature of plaintiffs’ claim as plaintiffs’ reconsideration request does not
form an adequate basis for reconsideration. As noted above, a “motion for reconsideration . . .
provides the Court with an opportunity to [inter alia] . . . hear newly discovered evidence,” U.S.
Titan, Inc., 182 F.R.D. at 100, i.e., “evidence that was truly newly discovered or could not have
been found by due diligence.” Space Hunters, Inc. v. United States, 500 Fed. App’x 76, 81 (2d
Cir. 2012) (internal quotation marks omitted). Here, however, the expert testimony that
plaintiffs submit does not meet that criteria. There is no indication that the appraisal prepared for
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plaintiffs’ attorney in 2009 was not available for inclusion with plaintiffs’ prior submissions on
the motions in limine. As a result, the plaintiffs’ motion for reconsideration is denied.
SO ORDERED.
Dated: Central Islip, New York
November 10, 2016
__________/s/_____________
Denis R. Hurley
United States District Judge
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