Culberth v. The Town of East Hampton New York et al

Filing 44

MEMORANDUM & ORDER granting 36 Motion for Reconsideration; For the reasons stated, the Court exercises its discretion and GRANTS Plaintiff' s motion. (ECF No. 36.) Upon reconsideration, the relief sought therein is DENIED. The Court's J udgment (ECF No. 31) remains unaffected and this case remains CLOSED. Because Plaintiff is currently represented by counsel, he will not receive a copy of this Memorandum & Order by mail. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal would not be taken in good faith and therefore in forma pauperis status is DENIED for purpose of an appeal. So Ordered by Judge Joanna Seybert on 1/6/2021. C/ECF (Valle, Christine)

Case 2:18-cv-04796-JS-AYS Document 44 Filed 01/06/21 Page 1 of 13 PageID #: 685

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-------------------------------------X
WILLIAM E. CUTHBERT,
Plaintiff,
MEMORANDUM & ORDER
18-CV-4796(JS)(AYS)

-againstTHE TOWN OF EAST HAMPTON NEW YORK,
FRANK TROTTA, and BARRY JOHNSON,

Defendants.
-------------------------------------X
APPEARANCES
For Plaintiff:
Frederick Martin Oberlander, Esq.
The Law Office of Frederick M Oberlander PC
43 West 43rd Street, Suite 133
New York, New York 11954
For Defendants:

Mark A. Radi, Esq.
Sokoloff Stern
179 Westbury Avenue
Carle Place, New York 11514

SEYBERT, District Judge:
Currently

before

the

Court

is

plaintiff

William

E.

Cuthbert’s (“Plaintiff”) motion pursuant to Local Rule 6.3 and
Federal Rules of Civil Procedure 59(e) and 60(b)(6) to vacate the
Court’s judgment, entered May 19, 2020, so that Plaintiff may amend
his complaint or, in the alternative, amend the judgment so that
he may pursue his claims under New York law in state court.

(Mot.,

ECF No. 36; Defs. Opp., ECF No. 38; Pl. Reply, ECF No. 40.)
the

reasons

that

follow,

the

motion

is

GRANTED,

reconsideration, the relief Plaintiff seeks is DENIED.

and

For
upon

Case 2:18-cv-04796-JS-AYS Document 44 Filed 01/06/21 Page 2 of 13 PageID #: 686

BACKGROUND AND PROCEDURAL HISTORY
On January 23, 2014, Defendants Frank Trotta and Barry
Johnson, police officers for Defendant the Town of East Hampton,
New York, arrested Plaintiff and charged him with disorderly
conduct, harassment, and resisting arrest.
¶¶ 1, 4, 11.)

(Compl., ECF No. 1,

Plaintiff was tried in state court and a jury

acquitted him of the harassment charge but convicted him of the
disorderly conduct and resisting arrest charges.

See People v.

Cuthbert,

Dep’t

65

N.Y.S.3d

492

(N.Y.

App.

Div.

2d

2017).1

Plaintiff appealed and on August 24, 2017, the New York State
Appellate

Division,

convictions

and

Second

dismissed

Department,
the

accusatory

reversed

instruments

grounds that they were “jurisdictionally defective.”
On

August

23,

2018,

Plaintiff,

Plaintiff’s
on

the

pro

se,

Id.

proceeding

commenced this action against Defendants and asserted claims for
malicious prosecution, municipal liability, and conspiracy under
42 U.S.C. §§ 1983 and 1985.

(See generally Compl.)

By Order dated

December 14, 2018, the Court granted Plaintiff’s request to proceed
in forma pauperis.

(Dec. 14, 2018 Order, ECF No. 7.)

2019, Defendants filed a motion to dismiss.

On May 6,

(Dismissal Mot., ECF

The Court is permitted to take judicial notice of facts contained
in publicly available documents, including, in this case, the
filings in the state court criminal proceedings. See Person v.
White, No. 09-CV-3920, 2010 WL 2723210, at *3 (E.D.N.Y. July 2,
2010).
1

2

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No. 15; Dismissal Br., ECF No. 17; Dismissal Reply, ECF No. 21.)
Plaintiff, pro se, opposed the motion.
No. 19; Cuthbert Aff., ECF No. 18.)

(Pl. Dismissal Opp., ECF

On October 8, 2019, the Court

referred the motion to Magistrate Judge Anne Y. Shields.

(Oct.

26, 2020 Elec. Order.)
On February 21, 2020, Judge Shields issued a report and
recommendation

(“R&R”)

and

recommended

that

the

Defendant’s motion to dismiss in its entirety.
23.)

Specifically,

Judge

Shields

found

Court

grant

(See R&R, ECF No.
(1) the

malicious

prosecution claim based on the charge of harassment must be
dismissed as time-barred (id. at 6); (2) the malicious prosecution
claim based on disorderly conduct fails because the underlying
criminal proceeding did not terminate in Plaintiff’s favor (id. at
6-8);

(3) the

Complaint

fails

to

adequately

plead

municipal

liability, and, in any event, Plaintiff abandoned the claim (id.
at 8-11 & n.3); and (4) the Complaint fails to adequately allege
a conspiracy cause of action, that such a claim is barred by the
intracorporate conspiracy doctrine, and Plaintiff has abandoned
the claim by failing to address it in opposition to Defendants’
dismissal motion.

(id. at 11-13 & n.4).

On March 10, 2020, this Court granted Plaintiff’s pro se
request for an extension of time to file objections.
2020 Elec. Order; Extension Req., ECF No. 25.)

(Mar. 10,

By letter dated

April 6, 2020, Plaintiff sought a second extension, stating:

3

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I was able to find counsel who agreed to take
this on pro bono to assist me but he is elderly
and has pulmonary co-morbidity. He, therefore,
is quarantined in a high risk group and, under
the circumstances, cannot appear for me but
can (and will) help me especially with
drafting. He assures me the Second Circuit has
held some time ago that ghostwriting is
perfectly acceptable and ethical but suggested
I advise the court when I’m being so helped so
it takes into account that my papers may not
in the future be all pro se and thus may not
trigger the “extra consideration” otherwise
allowed them in the court’s discretion (he
helped me with this letter too)
(Apr. 6, 2020 Ltr., ECF No. 26.)

On April 10, 2020, the Court

granted the request and directed Plaintiff to “clearly indicate
whether he received assistance from an attorney in drafting or
‘ghost writing’ the objections.”

(Apr. 10, 2020 Elec. Order.)

The Court also warned that it “will not afford the objections the
special solicitude normally afforded to pro se submissions in the
event pro bono counsel assists him in drafting or ghost writing
the objections.”

(Id. (citing Price v. City of New York No. 15-

CV-5871, 2018 WL 3117507, at *5 n.5 (S.D.N.Y. June 25, 2018)).)
On
objections.

or

around

May

9,

2020,

Plaintiff

submitted

(Pl. Obj., ECF No. 28; Defs. Obj. Opp., ECF No. 29.)

On May 19, 2020, the Court overruled Plaintiff’s objections,
adopted

the

R&R,

and

granted

Defendants’

(Adoption Order, ECF No. 30.)

motion

to

dismiss.

The Court noted that although

Plaintiff did not “indicate whether he received assistance with
drafting the objections,” it considered Plaintiff’s pro se status.

4

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(Id. at 3-4.)

Next, the Court observed that Plaintiff did not

object to the R&R’s recommendation that the Court dismiss claims
for

(1) malicious

prosecution

arising

out

of

the

charge; (2) municipal liability; and (3) conspiracy.

harassment
(Id. at 4.)

Accordingly, the Court reviewed those portions of the R&R for clear
error and, finding none, dismissed the claims.

(Id.)

The Court

also found that “Plaintiff’s malicious prosecution claim arising
out of the harassment charge is properly dismissed because it is
indisputably

time-barred”

and

that

“Plaintiff

abandoned

his

municipal liability and conspiracy claims because Plaintiff does
not reference or make any arguments as to those claims in his
opposition or his objections.”

(Id. at 4 n.5.)

Given the “uncertainty surrounding Plaintiff’s pro se
status,” the Court considered de novo whether Judge Shields erred
in

recommending

arising

out

convictions.

of

dismissal
the

of

the

disorderly

(Id. at 5.)

malicious

conduct

and

prosecution

claim

resisting

arrest

The Court overruled Plaintiff’s general

objection and found that “[e]ven if Plaintiff were to sufficiently
satisfy the ‘lack of probable cause’ element for a malicious
prosecution claim,” the claim “still fails as a matter of law
where,

as

here,

the

underlying

terminate in his favor.”

criminal

(Id. at 5-6.)

proceeding

did

not

Specifically, the Court

stated that “Plaintiff’s disorderly conduct and resisting arrest
convictions were reversed and the accusatory instruments were

5

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dismissed as a result of jurisdictional defects,” and thus, the
decision reversing the convictions was “not a termination in
Plaintiff’s favor.”

(Id. at 7.)

Finally, the Court denied

Plaintiff leave to amend because “the defects in the Complaint are
substantive and could not be cured if afforded an opportunity to
amend.”

(Id. at 8-9.)
On May 19, 2020, the Clerk of the Court entered judgment

in favor of Defendants and closed the case.
31.)

(Judgment, ECF No.

On May 21, 2020, the Court issued an Order stating:
On
May
20,
2020,
the
Court
received
Plaintiff’s letter, dated May 11, 2020,
requesting an additional 30 days to file his
objection to Judge Shields’ report and
recommendation. ([ECF No.] 33.) This request
is DENIED as MOOT because, by affidavit dated
May 9, 2020, Plaintiff submitted an “affidavit
in support of [his] objection” to the report
and recommendation. (See [ECF No.] 28.)
Defendants filed a response on May 13, 2020.
([ECF No.] 29.) On May 19, 2020, the Court
issued its Memorandum and Order overruling
Plaintiff’s objections and adopting Judge
Shields’ report and recommendation. ([ECF No.]
30.) Therefore, no extension of time is
required.

(May 21, 2020 Elec. Order.)

On June 16, 2020, Plaintiff filed the

instant motion with the assistance of counsel who “cannot generally
appear for Plaintiff but has written [the motion] for him.”
Mot.

at

ECF

p.

1.)

Although

docketed

as

a

“Motion

(See
for

Reconsideration,” Plaintiff seeks relief pursuant to Local Rule
6.3 and Federal Rules of Civil Procedure 59(e) and 60(b)(6),

6

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requesting that the Court vacate its judgment, entered May 19,
2020,

so

that

Plaintiff

may

amend

his

complaint

or,

in

the

alternative, amend the judgment so that he may pursue his claims
under New York law in state court.

(Id. at 1-2).

Defendants

oppose the motion.
ANALYSIS
I.

Legal Standards
“A

party

seeking

to

file

an

amended

complaint

postjudgment must first have the judgment vacated or set aside
pursuant to [Federal Rules of Civil Procedure] 59(e) or 60(b).”
Ruotolo v. City of New York, 514 F.3d 184, 191 (2d Cir. 2008).
Under Federal Rule of Civil Procedure 60(b), a court may “relieve
a party . . . from a final judgment” on the following grounds:
(1) mistake,
inadvertence,
surprise,
or
excusable
neglect;
(2) newly
discovered
evidence that, with reasonable diligence,
could not have been discovered in time to move
for a new trial under Rule 59(b); (3) fraud
(whether previously called intrinsic or
extrinsic), misrepresentation, or misconduct
by an opposing party; (4) the judgment is
void; (5) the judgment has been satisfied,
released, or discharged; it is based on an
earlier judgment that has been reversed or
vacated; or applying it prospectively is no
longer equitable; or (6) any other reason that
justifies relief.
“Motions under Rule 59(e) and Local Rule 6.3 are assessed
under the same standard.”

Kudlek v. Sunoco, Inc., 610 F. Supp. 2d

218, 220 (E.D.N.Y. 2009).

“The standard for granting a motion for

7

Case 2:18-cv-04796-JS-AYS Document 44 Filed 01/06/21 Page 8 of 13 PageID #: 692

reconsideration

pursuant

to

Rule

59(e)

reconsideration will generally be denied.”

is

strict,

and

Jelen v. Breezy Point

Coop., Inc., No. 18-CV-3440, 2018 WL 8996342, at *1 (E.D.N.Y. Dec.
21, 2018).

To prevail on a Rule 59(e) motion to alter or amend a

judgment, a movant must either (1) “present factual matters or
controlling decisions the court overlooked that might materially
have influenced its earlier decision” or (2) “demonstrate the need
to correct a clear error or prevent manifest injustice.”

Sanluis

Devs., L.L.C. v. CCP Sanluis, L.L.C., 556 F. Supp. 2d 329, 331
(S.D.N.Y. 2008).
A Rule 59(e) motion is committed to the sound discretion
of the district court and “may not be used to advance new facts,
issues or arguments not previously presented to the Court, nor may
it be used as a vehicle for re-litigating issues already decided
by the Court.”

Am. ORT, Inc. v. ORT Israel, No. 07-CV-2332, 2009

WL 233950, at *3 (S.D.N.Y. Jan. 22, 2009) (citations omitted);
Belfiore v. Procter & Gamble Co., 140 F. Supp. 3d 241, 245
(E.D.N.Y. 2015); Hunt v. Enzo Biochem, Inc., No. 06-CV-0170, 2007
WL 1346652, at *1 (S.D.N.Y. May 7, 2007). As such, reconsideration
of a judgment is an “extraordinary remedy to be employed sparingly
in the interests of finality and conservation of scarce judicial
resources.”

Johnson v. New York City, No. 10-CV-5359, 2011 WL

2471030, at *1 (S.D.N.Y. June 21, 2011) (quoting Cordero v. Astrue,
574 F. Supp. 2d 373, 380 (S.D.N.Y. 2008)).

8

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II.

Discussion
The

Court

notes

that

counsel

has

made

a

“limited

appearance” on behalf of Plaintiff and the pending motion was
“prepared with the substantial assistance” of counsel.
ECF p. 1.)

(Mot. at

As such, the Court will not afford Plaintiff’s motion

the special solicitude normally afforded to pro se submissions.
See Price, 2018 WL 3117507, at *5 n.5 (collecting cases).
Although far from the exemplar of clarity, the Court
understands that Plaintiff seeks reconsideration of the Court’s
decision to dismiss the malicious prosecution claim because “no
court . . . ever considered the ramification of such proposition
in a § 1983 action where there is significant available evidence,
even that capable of FRE § 201 notice, of legal innocence.”
at 7.)

(Id.

However, Plaintiff’s argument fails to direct the Court to

“overlooked facts or law, mistake, exceptional circumstances, or
undue hardship,” and his motion must therefore be denied.

Trundle

& Co. Pension Plan v. Emanuel, No. 18-CV-7290, 2020 WL 5913285, at
*4 (S.D.N.Y. Oct. 6, 2020).
Indeed, contrary to Plaintiff’s arguments, “[t]he test
for a favorable termination does not require that actual innocence
be established.”

Hincapie v. City of New York, 434 F. Supp. 3d

61, 73 (S.D.N.Y. 2020).

Rather, in Lanning v. City of Glen Falls,

908 F.3d 19 (2d Cir. 2018), the Second Circuit “reaffirmed the
longtime requirement that favorable termination under federal law

9

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requires

that

‘the

prosecution

terminated

in

some

manner

indicating that the person was not guilty of the offense charged,’
based on the ‘merits’ rather than ‘on any number of procedural or
jurisdictional grounds.’”

Rosario v. City of New York, No. 18-

CV-4023, 2019 WL 4450685, at *4 (S.D.N.Y. Sept. 16, 2019) (quoting
Lanning, 908 F.3d at 28). Thus, “where a dismissal in the interest
of justice leaves the question of guilt or innocence unanswered,
. . . it cannot provide the favorable termination required as the
basis for [that] claim.”

Thompson v. Clark, 364 F. Supp. 3d 178,

195 (E.D.N.Y. 2019) (quoting Lanning, 908 F.3d at 28-29).

Nothing

in Plaintiff’s motion for reconsideration changes the Court’s de
novo

determination

that

“the

Second

Department’s

decision

reversing the disorderly conduct and resisting arrest convictions
is not a termination in Plaintiff’s favor.”
at 7-8.)

(See Adoption Order

Therefore, the claims for malicious prosecution based on

those charges were properly dismissed.
To the extent Plaintiff also asks the Court to reconsider
its

judgment

such

that

Plaintiff

is

permitted

to

amend

his

Complaint to assert state law claims, that request is DENIED.

“It

is well-settled that [a motion for reconsideration] is not a
vehicle for relitigating old issues, presenting the case under new
theories, securing a rehearing on the merits, or otherwise taking
a second bite at the apple.”

Analytical Surveys, Inc. v. Tonga

Partners, L.P., 684 F.3d 36, 52 (2d Cir. 2012) (emphasis added).

10

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Rather, such motions are to be “narrowly construed in order to
ensure the finality of decisions and to prevent the practice of a
losing party examining a decision and then plugging the gaps of a
lost motion with additional matters.”

Tulczynska v. Queens Hosp.

Ctr., No. 17-CV-1669, 2020 WL 2836759, at *3 (S.D.N.Y. June 1,
2020) (emphasis added); see also Perros v. Cnty. of Nassau, No.
15-CV-5598, 2019 WL 1441131, at *2 (E.D.N.Y. Mar. 28, 2019) (“A
party seeking reconsideration may . . . no[t] advance new facts,
issues or arguments not previously presented to the Court.”).
Plaintiff’s request for reconsideration to amend his
Complaint is no more than an attempt to “plug the gap” or seek the
proverbial second bite of the apple.

Notwithstanding his presumed

pro se status, Plaintiff had previous opportunities to address
whether his Complaint should be construed to include state law
claims.

In their motion to dismiss, Defendants argued “[i]t is

unclear whether [P]laintiff asserts state law claims too” and if
so, the claims were without merit.
id. at pp. 6, 8 n.5, 20 n.9.)

(Dismissal Br. at p. 7 n.4;

Plaintiff neither responded to these

arguments in opposition to the dismissal motion nor did he raise
the viability of the state law claims when objecting to the R&R.
As stated, “[a] motion for reconsideration is not the place to
raise new arguments that could have been raised in the first
instance.”
agrees

Trundle, 2020 WL 5913285, at *5.

with

Defendants

that

“Plaintiff’s

11

Moreover, the Court
failure

to

oppose

Case 2:18-cv-04796-JS-AYS Document 44 Filed 01/06/21 Page 12 of 13 PageID #: 696

dismissal of any purported false arrest and state law claims
rendered them abandoned.”

(Defs. Opp., ECF No. 38, at 6; see id.

at 6-7 (collecting cases holding that failures to respond to
arguments for dismissal constitute abandonments of the underlying
claims)); see also Wilkov v. Ameriprise Fin. Servs., Inc., 753 F.
App’x 44, 47 n.1 (2d Cir. 2018) (“We affirm the District Court’s
dismissal of those claims on the ground that they were ‘abandoned’
by [pro se plaintiff] when she failed to oppose them in her
opposition to Ameriprise’s motion to dismiss.”).

Plaintiff’s pro

se status does not shield him from such a result.

See, e.g.,

McNair v. Ponte, 16-CV-1722, 2019 WL 1428349, at **6, 21 (S.D.N.Y.
Mar. 29, 2019)(“This Court has deemed claims abandoned even in
cases

where

the

plaintiff

was

proceeding

pro

se.”).

Thus,

Plaintiff’s attempt to now assert state law claims is foreclosed.
Finally, upon the record presented, relief pursuant to
Rule 60(b) is not warranted.

In the absence of any mistake,

inadvertence, excusable neglect, newly discovered evidence, fraud,
or

exceptional

or

extraordinary

circumstances,

Plaintiff

has

failed to demonstrate he is entitled to Rule 60(b)’s “extraordinary
Jelen, 2018 WL 8996342, at *1; see also FED. R.

judicial relief.”
CIV. P. 60(b).

At this juncture, Rule 60(b) does not provide

Plaintiff

an

with

avenue

to

revive

Complaint.

12

and

amend

his

dismissed

Case 2:18-cv-04796-JS-AYS Document 44 Filed 01/06/21 Page 13 of 13 PageID #: 697

CONCLUSION
For

the

reasons

stated,

the

discretion and GRANTS Plaintiff’s motion.

Court

exercises

(ECF No. 36.)

reconsideration, the relief sought therein is DENIED.

its
Upon

The Court’s

Judgment (ECF No. 31) remains unaffected and this case remains
CLOSED.
Because Plaintiff is currently represented by counsel,
he will not receive a copy of this Memorandum & Order by mail.
The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any
appeal would not be taken in good faith and therefore in forma
pauperis status is DENIED for purpose of an appeal.

Coppedge v.

United States, 269 U.S. 438, 444-45 (1962).
SO ORDERED.

/s/ JOANNA SEYBERT_________
Joanna Seybert, U.S.D.J.
Dated: January
6 , 2021
Central Islip, New York

13