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)

Download PDF
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

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?