10 Garvies Point Road Corp. et al v. City of Glen Cove et al

Filing 38

MEMORANDUM & ORDER granting 26 Motion to Amend/Correct/Supplement. SO ORDERED that Defts' motion to correct the March 2 Order is GRANTED. The Court will issue a corrected order on ECF contemporaneously with this Memorandum and Order. Ordered by Judge Joanna Seybert on 8/10/2012. (Florio, Lisa)

FILED
IN CLERK"S OFFICE
U S DISTRICT COURT E D NY

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

*

--------------------------------------X
10 GARVIES POINT ROAD CORP. and
DOXSIDE INDUSTRIES, INC.,

,;UG 1 0 2012

LONG ISLAND OFFICE

Plaintiffs,
MEMORANDUM & ORDER
11-CV-0949 (JS) (WDW)

-againstCITY OF GLEN COVE, GLEN COVE
INDUSTRIAL DEVELOPMENT AGENCY, and the
UNITED STATES ENVIRONMENTAL PROTECTION
AGENCY,
Defendants.

--------------------------------------X
APPEARANCES
For Plaintiff:

Charles S. Webb, III, Esq.
Kenneth J. Applebaum, Esq.
Berger & Webb LLP
7 Times Square
New York, NY 10036

For Defendants
Glen Cove and
the IDA:

Michael D. Zarin, Esq.
Zarin & Steinmetz
81 Main Street, Suite 415
White Plains, NY 10601

The EPA:

No appearances.

SEYBERT, District Judge:
Defendants City of Glen Cove (the "City") and the Glen
Cove
City,

Industrial

Development

"Defendants")

Agency

(the

"IDA"

and,

with

the

move for an order pursuant to Federal Rule

of Civil Procedure Rule 60 (a)

clarifying a

stipulation between

Defendants and Plaintiffs 10 Garvies Point Road Corporation and
Doxside

Industries,

Inc.

*

("Plaintiffs") .

For the reasons that

follow, Defendants' motion is GRANTED and an Amended Stipulation
will be docketed with this Memorandum and Order.
BACKGROUND
As

is

relevant

here,

this

case

involved

a

between Plaintiffs and Defendants over certain funds
being held in escrow pending Plaintiffs'
worksite

(the

"Site").

The

parties

dispute

that were

vacating their former

largely

resolved

their

differences at a conference with the Court in February 2011, and
they

entered

"Stipulation")

into
that,

on-the-record

an
in

general

terms,

stipulation
provided

that

(the
the

escrowed funds would be released to Plaintiffs in installments
that were tied to certain benchmarks.
penultimate

installment

would

be

Under this agreement, the

released

to

Plaintiffs

once

they removed all of their equipment and material from the Site.
(See Feb.

28,

2011 Hrg.

Tr.

37-38.)

Plaintiffs would be gone by April

18,

that they were working in good faith,
extra

fifteen

days.

(See

id.

at

The parties agreed that
2011 but,

in the event

Plaintiffs could have an
33-34.)

The

Stipulation

further provided that:
The balance of the advanced funds shall
remain deposited with the county treasurer
until such time as any
environmental
cost recovery action is resolved.
The city
commits to filing the appropriate action
within 90 days of the time period that all
materials
are
removed
from
the
site
hereunder.

2

(Id. at 38.)

At the end of the conference, the parties and the

Court agreed that a written order would facilitate a transfer of
funds from the Nassau County Treasurer to the Court's Registry
(under the arrangement worked out with the Court,
money

would

be

held

in

the

Court's

Registry

some of the

and

some

continue to be held by the Nassau County Treasurer) .
offered

to

issue

a

offered

to

prepare

written
a

order,

"consensual

but

draft"

The Court

Defendants'
of

what

would

the

counsel
parties

thought the written order should include.
The

parties

submitted

Court signed on March 2,
Order.")
record

2011.

a

proposed

order,

(Docket Entry 6,

which

the

the

"March 2

The March 2 Order expressly incorporated the on-theStipulation,

and

it

reiterated

the

substance

parties' agreement--with one important difference.

of

the

Rather than

say that Defendants would bring an environmental cost recovery
action within ninety days of Plaintiffs' vacating the Site,

the

order provided that Defendants would file an action by July 18,
2011.

(March 2 Order at

ninety-first

day

after

2.)

the

Monday,

deadline

July 18,

by which

2011 was the

Plaintiffs

were

Plaintiffs needed more time

than

supposed to leave the Site.
It

turned out

that

anyone thought to vacate the Site, but Defendants consented to a
series of extensions

(see Defs.

Aff.

~

6)

and Plaintiffs were

cleared out by May 26, 2011 (see Defs. Ex. E).

3

Defendants filed

an

environmental

cost

recovery

Navigation Law on August 2,

action

July

18

Plaintiffs

deadline

then

provided

sought

a

release of the remaining funds,

but

for

state

the

New

York

This was within ninety days

2011.

after Plaintiffs cleared the Site,
the

under

it was obviously after

in

the

court

March

order

18

Order.

compelling

the

arguing that Defendants failed

to timely file any cost recovery claims. 1
DISCUSSION
Defendants now seek an order from this Court, pursuant
to Rule 60, modifying the March 2 Order to reflect the parties'
on-the-record agreement that Defendants would have ninety days
from the date Plaintiffs left the Site to file a cost recovery
action.

See

R. Crv. P. 60.

FED.

Plaintiffs oppose, arguing that

the discrepancy between the Stipulation and the March 2 Order is
the

result

of

Defendants'

oversight

and

that

an

attorney's

carelessness is not a basis for modifying an order under Rule
60(b).
The Court will issue a corrected order pursuant to its
power under Rule 60 (a) .
correct
orders.

mistakes
FED.

R.

Rule 60(a)

"arising
Crv.

P.

permits district courts to

from

oversight

60 (a).

This

or

omission"

includes

the

in

its

power

to

correct orders to reflect the Court's contemporaneous intent in
1

The state court denied Plaintiffs' motion with leave to renew
within 30 days of this Court's decision on the present motion.
(See Docket Entry 35.)
4

See Panama Processes,

entering them.
789

F.2d 991,

993

F.2d

834,

836

60 (b)

to

argue

misplaced

(2d Cir.

(2d

Cir.

that

because

1986);

ambiguity

subsection (a), not (b)

In re Marc Rich
Plaintiffs'

1984).

carelessness

the

S.A. v. Cities Serv. Co.,

does
at

not

issue

Co.,

&

reliance
justify

here

is

739

on

Rule

relief

is

covered

by

As the Second Circuit has recognized,

The relevant distinction is "between what is
erroneous because the thing spoken, written
or recorded is not what the person intended
to speak,
write or record,
and what is
erroneous because the person later discovers
that the thing said, written or recorded was
wrong. The former comes within Rule 60 (a);
the latter does not."
Marc Rich,

739

F. 2d at

Superior Prods.

Co.,

contemporaneous

intent

the record,

837

(quoting Allied Materials Corp.

620 F.2d 224,
of

226

(lOth Cir.

1980)).

court,

the district

evidenced by

as

See Panama Processes,

is the key inquiry.

v.
The

789 F.2d

at 995.
The on-the-record Stipulation provided Defendants with
a

ninety-day

action. 2
although
clearly

window

This was
it

to

investigate

the agreement

recognized

contemplated

that

that

a

and

that

file

the

a

cost

Court approved,

written order would

the

written

recovery

order

would

and

follow,

it

track

the

Although it was not explicit in the Stipulation, the intent of
the parties and the Court was that the IDA would have sufficient
time after Plaintiffs vacated the Site to investigate whether a
(See Defs. Aff. , 21.)
cost recovery action was appropriate.
(See generally Pls. Opp.)
Plaintiffs do not suggest otherwise.
2

5

on-the-record agreement. 3

language of the parties'

March 2 Order explicitly incorporates

Indeed,

the Stipulation's

the

terms.

This intent controls, and the Court can use its power under Rule
60 (a)

to

cure

the discrepancy between the

March 2 Order.

See Marc Rich,

district

court's

ambiguity

and

order

mistake

739

Stipulation and the

F.2d at

"clarify [ing]

inadvertently

836-37

and

contained"

(upholding

remov [ingl
in

its

any
civil

contempt order) .
CONCLUSION
For

the

foregoing

reasons,

correct the March 2 Order is GRANTED.
corrected order

on

ECF

Defendants'

motion

The Court will

contemporaneously with

this

issue a

Memorandum

and Order.

SO ORDERED.

/s/ JOANNA SEYBERT
Joanna Seybert, U.S.D.J.
Dated:

August
10
2012
Central Islip, New York

3

The Court even offered to draft a written order based on the
transcript of the conference.
(See Feb. 28, 2011 Hrg. Tr. 41.)
6

to