XTDR, LLC v. City of Long Beach, New York

Filing 33

ORDER denying 30 Motion for Reconsideration. For the reasons set forth in the attached Memorandum and Order, defendant's motion for reconsideration is denied. Ordered by Judge Denis R. Hurley on 5/25/2017. (Kaley, Regina)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------------------------XTDR, LLC d/b/a SERVPRO PARK
CITY SHORELINE,
Plaintiff,
-against-

MEMORANDUM AND ORDER
14-CV-2157 (DRH)(SIL)

CITY OF LONG BEACH, NEW YORK,
Defendant.
---------------------------------------------------------X
APPEARANCES:
For the Plaintiff:
MELTZER, LIPPE, GOLDSTEIN & BREITSTONE, LLP
190 Willis Avenue
Mineola, NY 11501
By: Loretta M. Gastwirth, Esq.
DRESSMAN BENZIGER LAVELLE PSC
221 East Fourth Street, Suite 2500
Cincinnati, OH 45202
By: Kathleen Tranter, Esq.
Kevin Hoskins, Esq.
For the Defendant:
CITY OF LONG BEACH, OFFICE OF CORPORATION COUNSEL
One West Chester Street
P.O Box 9002
Long Beach, NY 11561
By: Robert M. Agostisi, Esq.
HURLEY, Senior District Judge:
Plaintiff XTDR, LLC d/b/a Servpro Park City Shoreline (“plaintiff” or “Servpro”)
commenced this action against defendant City of Long Beach (“defendant” or “Long
Beach” or “the City”) asserting claims arising out of services that Servpro performed for the
City. In an order dated September 30, 2016, the Court granted summary judgment to the City
on plaintiff’s quantum meruit claims but found that a genuine issue of fact existed as to

plaintiff’s breach of contract claims (“the Summary Judgment Order”). Presently before the
Court is defendant’s motion for reconsideration “of one, limited portion” of the Summary
Judgment Order relating to the breach of contract claims, which will be explained further below.
(Def.’s Mem. in Supp. at 1.) For the reasons set forth below, the defendant’s motion is denied.
BACKGROUND
The Court assumes familiarity with the facts and procedural history of this case as set
forth in the Summary Judgment Order.
DISCUSSION
I.

Legal Standard
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 Men 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.

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Plan, 2006 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. Discussion
As discussed in the Summary Judgment Order, Servpro alleges that it entered into a
contract with Long Beach to perform cleanup and restoration services at four facilities damaged
during Superstorm Sandy. The Court found that there were genuine issues of material fact as to
whether there was a contract between the parties with respect to each facility. Here, defendant
asks the Court to reconsider its decision with respect to one of the facilities, the Martin Luther
King (“MLK”) Center. Defendant argues that the evidence does not demonstrate the
“acceptance and/or mutual assent that Servpro must proffer in order to carry its burden” in
raising a genuine question of fact as to whether there was a contract to perform services at the
MLK Center. (Def.’s Mem. in Supp. at 4.) Specifically, defendant argues that there could not
have been mutual assent to perform work at the MLK Center given Long Beach Commissioner
James LaCarrubba’s (“LaCarrubba”) and Deputy Commissioner Joseph Febrizio’s (“Febrizio”)
failure to respond to an email dated November 8, 2012 from Servpro containing Servpro’s rates.
According to defendant, this “complete silence” while work at the MLK Center was underway
indicates a lack of mutual assent regarding the price of Servpro’s services.
Firstly, the defendant’s motion is denied because the aforementioned facts were raised in
their original summary judgment motion and mentioned by the Court in the Summary Judgment
Order. Thus, defendant has not pointed to any facts that the Court overlooked and fails to meet

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the standard for a motion for reconsideration. 1 In addition, defendant’s motion is denied because
as noted in the Summary Judgment Order, Servpro has pointed to evidence indicating that there
was mutual assent to perform work at the MLK Center, i.e., that Servpro provided their rates to
Long Beach’s then corporation counsel Corey Klein (“Klein”) prior to any work beginning, that
Long Beach Commissioner LaCarrubba and Deputy Commissioner Febrizio “had knowledge of
[Servpro’s] rates while directing Servpro to work at the facilities,” 2 and that Servpro performed
such work. (Summary Judgment Order at 8.) As discussed in the Summary Judgment Order,
these facts are sufficient to raise a genuine question of fact as to whether there was mutual assent
between Servpro and the City to perform work at the MLK Center. See Design Partners, Inc. v.
Five Star Electric Corp., 2017 WL 818364, at *9 (E.D.N.Y. Mar. 1, 2017) (quoting Action
Temporaries Mgmt. Co. v. Stratmar Sys., Inc., 1996 WL 110170, at *2 (2d Cir. Mar. 12, 1996)
(“Under New York law, ‘the existence of a contract may be established through conduct of the
parties recognizing the contract,’ even if no ‘final contract’ has been signed by the parties.”);
Register.com, Inc. v. Verio, Inc., 356 F.3d 393, 427 (2d Cir. 2004) (“The manifestation or
expression of assent necessary to form a contract may be by word, act, or conduct which evinces
the intention of the parties to contract.” (internal quotation marks and citation omitted)).
Furthermore, as noted in the Summary Judgment Order, there is a genuine question of fact as to
whether Febrizio and LaCarrubba had apparent authority to authorize the work on behalf of the

1

Although defendant prefaces its motion with the theory that the Court “overlooked
controlling case law attendant to breach of contract claims,” (Def.’s Mem. in Supp. at 2), the
motion does not point to any such controlling case law. Rather, defendant’s motion quotes the
Court’s recitation of the law in the Summary Judgment Order and asks the Court to reconsider its
concomitant application to factual data.
2

Patrick Carroll (“Carroll”), Servpro’s Chief Operating Officer, testified at his deposition
that LaCarrubba and Febrizio were present at the initial meeting between the parties before any
work was commenced and that the rates were discussed at that meeting. (Carrol Dep. at 60-61.)
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City, given Carroll’s testimony that on the day Servpro began its work, Klein told Servpro that
LaCarrubba and Febrizio were in charge of the project. As a result, the City’s motion for
reconsideration is denied.
Conclusion
For the foregoing reasons, defendant’s motion for reconsideration is denied.
SO ORDERED.
Dated: Central Islip, New York
May 25, 2017

__________/s/_____________
Denis R. Hurley
United States District Judge

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