Superior Site Work, Inc. et al v. Nasdi, LLC et al
MEMORANDUM OF DECISION AND ORDER denying 103 Motion for Reconsideration. For the reasons stated above, NASDIs motion for reconsideration pursuant to Local Civil Rule 6.3 is denied in its entirety. The Court notes that the parties incorrectly incl uded the New York City Parks Department as a third party defendant in their captions. The Court previously dismissed the Parks Department as a third party defendant. The parties are directed to use the caption included at the beginning of this memorandum of decision and order, and the Clerk of the Court is respectfully directed to amend the official caption to reflect the same. SEE ATTACHED DECISION for details. So Ordered by Judge Arthur D. Spatt on 5/22/2017. (Coleman, Laurie)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
SUPERIOR SITE WORK, INC., DIVERSIFIED
CONSTRUCTION CORP., HARRISON
AVENUE PROPERTIES LLC,
3:40 pm, May 22, 2017
U.S. DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
LONG ISLAND OFFICE
DECISION AND ORDER
Third Party Plaintiff,
-againstCASE FOUNDATION COMPANY, and THE
CITY OF NEW YORK,
Third Party Defendants.
Zabell & Associates, P.C.
Attorneys for the Plaintiffs
1 Corporate Drive
Bohemia, NY 11716
Saul D. Zabell, Esq., Of Counsel
The Law Office of John E. Osborn, P.C.
Attorneys for the Defendant and Third Party Plaintiff
93–02 Sutphin Boulevard
Jamaica, NY 11435
Daniel H. Crow, Esq., Of Counsel
Peckar & Abramson
Attorneys for the Third Party Defendant Case Foundation Company
41 Madison Avenue
New York, NY 10010
Alan H. Winkler, Esq., Of Counsel
New York City Law Department, Office of Corporation Counsel
Corporation Counsel for Third Party Defendants the City of New York and the New York City
Department of Parks and Recreation
100 Church Street
New York, NY 10007
Amanda M. Papandrea, Assistant Corporation Counsel
SPATT, District Judge:
This action arises out of a contract dispute between the parties. The contract concerned
work related to the Ocean Breeze Indoor Athletic Facility in Staten Island, New York (the “Ocean
Breeze Project”). The City of New York (the “City) and the New York City Department of Parks
and Recreation (the “Parks Department”) contracted with NASDI, LLC (“NASDI”) to build the
Ocean Breeze Project.
NASDI allegedly subcontracted with Superior Site Work, Inc.
(“Superior”), Diversified Construction Corp. (“Diversified”), and Case Foundation Company
NASDI allegedly leased office space from Harrison Avenue Properties LLC
(“Harrison”) during the project.
On January 23, 2017, the Court granted a motion by Case, which also granted in part a
motion by the City to hold the third party action in abeyance pending the outcome of certain New
York State Supreme Court cases. Superior, Diversified, and Harrison requested similar relief in
that they asked the Court to either strike or sever the third party complaint, but the Court denied
that motion as moot.
Presently before the Court is a motion by NASDI for reconsideration pursuant to Local
Civil Rule 6.3, asking the Court to amend its January 23, 2017 memorandum of decision and order
to state that any breaches of contract are merely alleged breaches; to find that the third Colorado
River factor does not favor abstention; and to therefore not hold the third party action in abeyance
pending the outcome of the New York State actions. For the following reasons, NASDI’s motion
is denied in its entirety.
A. The Relevant Legal Standard
Local Civil Rule 6.3 provides that:
Unless otherwise provided by the Court or by statute or rule (such as FED. R. CIV.
P. 50, 52, and 59), a notice of motion for reconsideration or reargument of a court
order determining a motion shall be served within fourteen (14) days after the entry
of the Court’s determination of the original motion, or in the case of a court order
resulting in a judgment, within fourteen (14) days after the entry of the judgment.
There shall be served with the notice of motion a memorandum setting forth
concisely the matters or controlling decisions which counsel believes the Court has
overlooked. The time periods for the service of answering and reply memoranda, if
any, shall be governed by Local Civil Rule 6.1(a) or (b), as in the case of the original
motion. No oral argument shall be heard unless the Court directs that the matter
shall be reargued orally. No affidavits shall be filed by any party unless directed by
Id. “The standard for granting such a 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 expected to alter the conclusion reached by the
court.” Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995). The decision to grant or
deny a motion for reconsideration is “committed to the sound discretion of the district court.”
Wilder v. News Corp., 2016 WL 5231819, at *3 (S.D.N.Y. Sept. 21, 2016) (internal quotation
marks omitted) (quoting Liberty Media Corp. v. Vivendi Universal, S.A., 861 F. Supp. 2d 262, 265
(S.D.N.Y. 2012)); see also Shrader, 70 F.3d at 257 (using an abuse of discretion standard to judge
a district court’s decision on a motion for reconsideration).
“[A] party may not advance new facts, issues[,] or arguments not previously presented to
the Court on a motion for reconsideration.” Steinberg v. Elkman, 2016 WL 1604764, at *1
(S.D.N.Y. Apr. 6, 2016) (internal quotation marks omitted) (quoting Nat'l Union Fire Ins. Co. of
Pittsburgh v. Stroh Cos., 265 F.3d 97, 115 (2d Cir. 2001)). Nevertheless, reconsideration may be
granted because of “an intervening change of controlling law, the availability of new evidence, or
the need to correct a clear error or prevent manifest injustice.” Luv n’ Care Ltd. v. Goldberg
Cohen, LLP, 2016 WL 6820745, at *1 (S.D.N.Y. Nov. 10, 2016) (internal quotation marks
omitted) (quoting Hollander v. Members of the Bd. of Regents, 524 F. App’x 727, 729 (2d Cir.
2013) (summary order)); accord Virgin Atl. Airways, Ltd. v. Nat’l Mediation Bd., 956 F.2d 1245,
1255 (2d Cir. 1992) (citations omitted).
B. Application to the Facts
As to NASDI’s first request for reconsideration—the Court did not make any findings of
fact. The Court’s statement of facts merely summarized the facts in the pleadings. The Court’s
January 23rd decision did not render any rulings on the merits of the case. Obviously, any and all
facts in the Court’s January 23rd order are merely allegations. In the first paragraph of the decision,
the Court states that the contracts are alleged. Nothing in the Court’s order can be construed as
finding against NASDI in any way. NASDI cites no case law in support of their request.
Accordingly, NASDI’s motion asking the Court to amend its order in this respect is denied.
As to NASDI’s request for reconsideration, NASDI’s motion merely “regurgitate[s] 
arguments that this Court previously rejected. This is not a proper basis for a motion for
reconsideration, and, in any event, [NASDI’s] arguments have gained nothing in persuasiveness
in the interim.” Charter Oak Fire Ins. Co. ex rel. Milton Fabrics v. Nat’l Wholesale Liquidators,
No. 99 CIV. 5756 (JSR), 2003 WL 22455321, at *1 (S.D.N.Y. Oct. 29, 2003) (citing Shamis v.
Ambassador Factors Corp., 187 F.R.D. 148, 151 (S.D.N.Y. 1999); Shemerhorn v. James, No. 96
Civ. 980, 1998 U.S. Dist. LEXIS 848, 1998 WL 40205 (S.D.N.Y. Feb. 2, 1998); Bonnie & Co.
Fashions, Inc. v. Bankers Trust Co., 170 F.R.D. 111, 113 (S.D.N.Y. 1997)), aff’d sub nom. Charter
Oak Fire Ins. Co. v. Nat’l Wholesale Liquidators of Lodi, Inc., 101 F. App’x 860 (2d Cir. 2004);
see also Am. Nat. Fire Ins. Co. v. Mirasco, Inc., 265 F. Supp. 2d 240, 244 (S.D.N.Y. 2003)
(denying motions for reconsideration because “[b]ecause both parties are inappropriately seeking
another ‘bite at the apple’ in their motions for reconsideration by presenting the same facts and
arguments as were already considered”), decision supplemented, reconsideration denied, No. 00
CIV. 5098 (RWS), 2003 WL 22271226 (S.D.N.Y. Sept. 30, 2003).
Accordingly, NASDI’s motion for reconsideration is denied in its entirety.
For the reasons stated above, NASDI’s motion for reconsideration pursuant to Local Civil
Rule 6.3 is denied in its entirety.
The Court notes that the parties incorrectly included the New York City Parks Department
as a third party defendant in their captions. The Court previously dismissed the Parks Department
as a third party defendant. The parties are directed to use the caption included at the beginning of
this memorandum of decision and order, and the Clerk of the Court is respectfully directed to
amend the official caption to reflect the same.
It is SO ORDERED:
Dated: Central Islip, New York
May 22, 2017
______/s/ Arthur D. Spatt_______
ARTHUR D. SPATT
United States District Judge
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