Walters v. T & D Towing Corp et al

Filing 22

ORDER denying 12 Motion for Reconsideration; granting 15 Letter Motion. For the reasons set forth above, Plaintiff's application for reconsideration of the March 29th Order is DENIED and her June 26th Letter Motion is GRANTED. The Court CERTIFIES the Constitutional questions as set forth by Plaintiff. The Clerk of the Court is ORDERED to provide Notice to the New York State Attorney General in accordance with Federal Rule of Civil Procedure 5.1(a)(2). The Court certifies pursua nt to 28 U.S.C. § 1915(a)(3) that any appeal from this Order would not be taken in good faith and therefore in forma pauperis status is DENIED for the purpose of any appeal. The Clerk of the Court is further directed to mail a copy of this Order to the pro se Plaintiff. So Ordered by Judge Joanna Seybert on 10/12/2017. C/M; C/ECF (Valle, Christine)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------X
ALENA WALTERS,
Plaintiff,
-against-

ORDER
17-CV-0681(JS)(AKT)

T & D TOWING CORP. a/k/a T&D TOWING
CORPORATION, a/k/a T. & D. TOWING
CORP., a/k/a T&D AUTO BODY, and
ANTHONY DOUSE II, a/k/a TONY SENIOR,
Defendants.
-----------------------------------X
APPEARANCES:
For Plaintiff:
Alena Walters, pro se
80 Atlantic Avenue, # 53
Oceanside, NY 11572
For Defendants:

Michael C. Sordi, Esq.
P.O. Box 759
Northport, NY 11768

SEYBERT, District Judge:
On February 6, 2017, pro se plaintiff Alena Walters
(“Plaintiff”) filed an Complaint against T & D Towing Corp. a/k/a
T&D Towing Corporation, a/k/a T. & D. Towing Corp., a/k/a T&D Auto
Body (“T&D Towing”), and Anthony Douse II, a/k/a Tony Senior
(“Douse” and together, “Defendants”) alleging a variety of federal
and state law claims in connection with the tow and retention of
her motor vehicle following an accident on September 13, 2016.
Plaintiff’s Complaint was accompanied by an application to proceed
in forma pauperis.
On March 13, 2017, Plaintiff filed an ex parte Order to
Show Cause (“OSC”) seeking the entry of a temporary restraining
order and preliminary injunction seeking to consolidate an action

commenced against Plaintiff by T&D Towing in the City of Glen Cove
Commercial Small Claims Court under Index Number CC-000001-17/GC
(the “City Court case”) and/or staying the City Court case pending
the conclusion of the present case. (See, OSC, Docket Entry 7.)
In the City Court case, T&D Towing seeks to recover damages in the
sum of $1,581.04 for the tow and storage of Plaintiff’s vehicle.
(OSC at 34.1)
By Order dated March 29, 2017 (the “March 29th Order”),
the Court granted Plaintiff’s application to proceed in forma
pauperis and denied Plaintiff’s Order to Show Cause seeking the
entry of a temporary restraining order and preliminary injunction.
On

May

8,

2017,

Plaintiff

filed

a

letter

motion

seeking

reconsideration of the denial of her request for injunctive relief.
In addition, on June 26, 2017, Plaintiff filed a letter
motion (the “June 26th letter motion”) requesting that, pursuant
to 28 U.S.C. § 2403(b) and Federal Rule of Civil Procedure 5.1, the
Court: (1) certify that the constitutionality of the New York Lien
Law is drawn into question by the allegations in the Complaint; and
(2) serve the notice and complaint upon the New York State Attorney
General. More specifically, Plaintiff requests that the Court

1

When referring to the Order to Show Cause and its attachments,
the Court will use the page numbers generated by the Electronic
Case Filing System.
2

certify the two Constitutional questions as follows:2
1)

Is there any provision at all within any part of
any New York Lien Statute that provides any process
due to an owner of a motor vehicle who is deprived
of possession of that motor vehicle property by a
person asserting a lien under NYS LIE § 184?

2)

Doesn’t the statute’s endowment of detention powers
lacking of a provision for process by which the
owner can contest unfair possessory deprivation of
motor vehicle property, lend itself to the abuse of
detainment and/or facilitation of detainment for
the purpose of extorting more service fees from a
customer than are due?

(See Docket Entry 15 at 2.)
For

the

reasons

that

follow,

the

application

for

reconsideration of the March 29th Order is DENIED and the June 26th
letter motion is GRANTED.
DISCUSSION
I.

Motion for Reconsideration
Local Civil Rule 6.3 requires that “[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 . . . .”
Civil Rule 6.3.

Local

The Rule further provides that “[t]here shall be

served with the notice of motion a memorandum setting forth
concisely

the

matters

or

controlling

believes the Court has overlooked.”

2

decision

which

[movant]

Local Civil Rule 6.3.

These questions are reproduced here exactly as they appear in
Plaintiff’s submission.
3

Reconsideration is not a proper tool to repackage and re-litigate
arguments and issues already considered by the Court in deciding
the original motion.

See United States v. Gross, No. 98–CR–0159,

2002 WL 32096592, at *4 (E.D.N.Y. Dec. 5, 2002) (“A party may not
use a motion to reconsider as an opportunity to reargue the same
points raised previously.”).
arguments and issues.

Nor is it proper to raise new

See Lehmuller v. Inc. Vill. of Sag Harbor,

982 F. Supp. 132, 135 (E.D.N.Y. 1997).
Rule 60(b) provides “extraordinary judicial relief” that
may only be granted “upon a showing of exceptional circumstances.”
Nemaizer v. Baker, 793 F.2d 58, 61 (2d Cir. 1986).
for

granting

[a

motion

for

reconsideration]

is

“The standard
strict,

and

reconsideration will generally be denied unless the moving party
can

point

to

controlling

overlooked-matters,

in

decisions

other

words,

or
that

data

that

might

the

court

reasonably

expected to alter the conclusion reached by the court.”

be

Shrader

v. CSX Transp., 70 F.3d 255, 257 (2d Cir. 1995); see also Medoy v.
Warnaco Emps. Long Term Disability Ins. Plan, No. 97–CV–6612, 2006
WL 355137, at *4 (E.D.N.Y. Feb. 15, 2006) (“The standard . . . is
strict in order to dissuade repetitive arguments on issues that
have already been considered by the Court.”).
As

a

threshold

matter,

Plaintiff’s

Motion

for

Reconsideration was not timely filed given that Plaintiff filed it
on May 8, 2017, nearly six (6) weeks after the March 29th Order.
4

In addition, Plaintiff’s Motion for Reconsideration is a three-page
letter and does not include a Notice of Motion and Memorandum as
required by Local Civil Rule 6.3. Notwithstanding these procedural
defects and in light of Plaintiff’s pro se status, the Court has
reviewed her letter and, upon careful consideration, adheres to its
original determination.
Importantly, Plaintiff’s ex parte Order to Show Cause
sought a temporary retraining order and/or preliminary injunction
consolidating the present Complaint with the City Court case,
and/or staying the City Court action pending the conclusion of this
case.

(See OSC and Ex. A at 33-34.)

However, according to the

information maintained by the New York State Unified Court System,
the City Court case was concluded against Plaintiff and in favor
of T & D Towing on June 7, 2017, following a bench trial.
https://iapps.courts.state.ny.us/webcivilLocal/LCSearch
visited on October 12, 2017).

See
(last

Thus, because the City Court action

has now concluded, Plaintiff’s request for reconsideration of the
March 29th Order is moot given that Plaintiff sought consolidation
of the cases and/or a stay of the City Court action pending the
resolution

of

this

case.

Moreover,

Plaintiff

provides

no

controlling decisions which the Court may have overlooked. Rather,
Plaintiff disagrees with the Court’s application of the cases she
cites as they relate to the allegations set forth in her Complaint.
Even given the liberal construction afforded to pro se litigants,
5

the Court can discern no legal basis for granting Plaintiff’s
Motion

for

Reconsideration.

Furthermore,

Plaintiff

does

not

indicate any exceptional circumstances which would warrant such
relief.

Accordingly, the Plaintiff's Motion for Reconsideration

is DENIED.
II.

The June 26th Letter Motion
Federal Rule of Civil Procedure 5.1 provides, in relevant

part:
Constitutional Challenge to a Statute
Notice, Certification, and Intervention

--

(a) Notice by a Party. A Party that files a pleading,
written motion, or other paper drawing into question the
constitutionality of a federal or state statute must
promptly:
(1) file a notice of constitutional question
stating the question and identifying the paper
that raises it, if:
. . .
(B) a state statute is questioned
and the parties do not include the
state, one of its agencies, or one
of its officers or employees in an
official capacity; and
(2) serve the notice and paper on the . . . state
attorney general if a state statute is questioned
-- either by certified or registered mail or by
sending it to an electronic address designated by
the attorney general for this purpose.
(b) Certification by the Court. The court must, under
28 U.S.C. § 2403, certify to the appropriate attorney
general that a statute has been questioned.
(c) Intervention; Final Decision on the Merits. Unless
the court sets a later time, the attorney general may
6

intervene within 60 days after the notice is filed or
after the court certifies the challenge, which ever is
earlier.
FED. R. CIV. P. 5.1.

In addition, 28 U.S.C. § 2403(b) provides, in

relevant part:
(b) In any action, suit, or proceeding in a court of the
United States to which a State or any agency, officer,
or employee thereof is not a party, wherein the
constitutionality of any statute of the State affecting
the public interest is drawn into question, the court
shall certify such fact to the attorney general of the
State, and shall permit the State to intervene for
presentation of evidence, if evidence is otherwise
admissible in the case, and for argument on the question
of constitutionality. The State shall, subject to the
applicable provisions of law, have all the rights of a
party and be subject to all liabilities of a party as to
court costs to the extent necessary for a proper
presentation of the facts and law relating to the
question of constitutionality.
28 U.S.C. § 2403(b).
Here, Plaintiff’s June 26th Motion makes clear that she
seeks to challenge the constitutionality of certain provisions of
the New York State Lien Law, specifically § 184.

Accordingly, in

accordance with 28 U.S.C. § 2403(b) and Federal Rule of Civil
Procedure 5.1, the Court CERTIFIES the Constitutional questions
presented by Plaintiff in her June 26th Motion and ORDERS that the
Clerk of the Court provide Notice to the New York State Attorney
General

in

accordance

with

Federal

Rule

of

Civil

Procedure

5.1(a)(2).3
3

The Court notes, however, that Plaintiff has already provided
Notice to the New York State Attorney General. In response to
such Notice, by letter dated August 28, 2017, the Office of the
7

CONCLUSION
For the reasons set forth above, Plaintiff’s application
for reconsideration of the March 29th Order is DENIED and her June
26th Letter Motion is GRANTED.

The Court CERTIFIES the following

Constitutional questions as set forth by Plaintiff:
1)

Is there any provision at all within any part of
any New York Lien Statute that provides any process
due to an owner of a motor vehicle who is deprived
of possession of that motor vehicle property by a
person asserting a lien under NYS LIE § 184?

2)

Doesn’t the statute’s endowment of detention powers
lacking of a provision for process by which the
owner can contest unfair possessory deprivation of
motor vehicle property, lend itself to the abuse of
detainment and/or facilitation of detainment for
the purpose of extorting more service fees from a
customer than are due?
The Clerk of the Court is ORDERED to provide Notice to

the New York State Attorney General in accordance with Federal Rule
of Civil Procedure 5.1(a)(2).
The Court certifies pursuant to 28 U.S.C. § 1915(a)(3)
that any appeal from this Order would not be taken in good faith
and therefore in forma pauperis status is DENIED for the purpose
of any appeal.

See Coppedge v. United States, 369 U.S. 438, 444-

45, 82 S. Ct. 917, 8 L. Ed. 2d 21 (1962).

Attorney General notified the Court that, “after careful
consideration and review of the documents submitted in
connection with this matter, the Office of the Attorney General
has determined that it will not intervene under New York
Executive Law § 71 at this time.” (See Docket Entry 19.)
8

The Clerk of the Court is further directed to mail a copy
of this Order to the pro se Plaintiff.

SO ORDERED.

/s/ JOANNA SEYBERT
Joanna Seybert, U.S.D.J.
Dated: October
12 , 2017
Central Islip, New York

9