Miller et al v. Smith et al

Filing 51

MEMORANDUM & ORDER denying 43 Motion for Reconsideration Re: 43 Letter MOTION for Reconsideration re 36 Order on Motion for Reconsideration, filed by Daniel Miller; ORDERED: (A) Plaintiff's Second Reconsideration Motion ( ECF No. 43) is DENIED; (B) Pursuant to 28 U.S.C. § 1915(a)(3), the Court certifies that any appeal from this Order would not be in good faith and therefore in forma pauperis status is DENIED for the purpose of any appeal; and (C) the Clerk of the Court shall mail a copy of this Order to the pro se Plaintiff at his address of record and include the notation Legal Mail on the envelope. So Ordered by Judge Joanna Seybert on 11/18/2021. (Valle, Christine)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------X
DANIEL MILLER, and MARY MILLER,
Plaintiffs,

MEMORANDUM & ORDER
21-CV-2949 (JS)(JMW)

-againstANDRE SMITH, Parole Officer; TANYA
HUBBARD, Senior Parole Officer;
TINA M. STANFORD, Chairwoman, Board
of Parole; NYSDOCCS, ROGER TRAYNOR,
Senior Offender Rehabilitation
Coordinator at Franklin Correctional
Facility; COURTNEY LEONARD, Senior
Offender Rehabilitation Coordinator
at Franklin Correctional Facility;
MS. MORALES, Offender Rehabilitation
Coordinator at Green Haven Correctional
Facility; COUNTY OF NASSAU; JOHN DOE,
Commissioner of the Nassau County
Department of Social Services; ANTHONY
ANNUCCI, Acting Commissioner of DOCCS;
A. RUSSO, Superintendent of the Green
Haven Correctional Facility,

Defendants.
----------------------------------X
APPEARANCES:
For Plaintiffs:
Daniel Miller, pro se
15-A-3706
Green Haven Correctional Facility
P.O. Box 4000
594 RT 216
Stormville, New York 12582
For Defendants:

No appearances.

SEYBERT, District Judge:
Presently before the Court is Plaintiff Daniel Miller’s
second pro se motion for reconsideration (hereafter, the “Second
Reconsideration

Motion”).

(See

ECF

Page 1 of 5

No.

43.)

None

of

the

Defendants have responded to said Motion.
toto.)

(See Case Docket, in

For the reasons that follow, the Second Reconsideration

Motion is DENIED.
The Court assumes the parties’ familiarity with the
facts and procedural posture of this case and, therefore, addresses
only the facts necessary to rule on the Second Reconsideration
Motion.

In that vein, on September 16, 2021, the Court issued a

Memorandum and Order that, among other things, denied Plaintiff’s
request for a preliminary injunction (hereafter, the “September 16
Order”).

(See ECF No. 36.)

On October 4, 2021, Plaintiff filed

a Notice of Interlocutory Appeal of the September 16 Order.

(See

ECF No. 42.)

Thereafter, on October 12, 2021, the Court received

and docketed

Plaintiff’s

October 7, 2021.

Second

(See ECF No. 43.)

Reconsideration

Motion,

dated

In essence, Plaintiff contends

the Court overlooked evidence that his mother, Mary, was not
victimized by Plaintiff and that the State Defendants did not
“proffer any compelling evidence which controverted that . . .
[and] rendered a decision without a hearing.” (Id. at 1.)
Pursuant to Local Civil Rule 6.3, “a notice of motion
for reconsideration . . . 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 . . . .”
added.)

(Emphasis

Here, Plaintiff filed his Second Reconsideration Motion

twenty-one (21) days after this Court’s September 16, Order.
Page 2 of 5

“As

numerous cases from this Circuit have held, the untimeliness of a
motion for reconsideration is reason enough to deny the motion.”
McGraw–Hill Global Education Holdings, LLC v. Mathrani, 293 F.
Supp. 3d 394, 397 (S.D.N.Y. 2018) (citing Cyrus v.UCity of N.Y.,
No. 06-CV-4685, 2010 WL 148078, at *2 (E.D.N.Y. Jan. 14, 2010)
(collecting cases); and Farez–Espinoza v. Napolitano, No. 08-CV11060, 2009 WL 1118098, at *2 (S.D.N.Y. Apr. 27, 2009) (collecting
cases); footnote omitted).

On that basis alone, Plaintiff’s

Reconsideration Motion is denied. 1
Even

merits

of

Plaintiff’s Second Reconsideration Motion, it would deny it.

“A

motion

for

generally

if

the

Court

reconsideration
be

denied

unless

were

under
the

to

address

Local
moving

Civil
party

the

Rule
can

6.3

‘will

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.’”

Mathrani, 293 F. Supp. 3d at

397 (quoting Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d
Cir. 1995)).

“The standard for reconsideration is strict, and

ultimately, the decision is within the sound discretion of the

The Court also notes that because Plaintiff’s Second
Reconsideration Motion does not address a final judgment or order,
he cannot rely upon Rule 60 of the Federal Rules of Civil Procedure
and its more generous time frame to pursue this Motion.
See
Mathrani, 293 F. Supp. 3d at 397 n.2 (“Because the [September 10]
Order is an interlocutory order from which no appeal lies, Rule
60(b) is inapplicable.” (citation omitted)).)
1

Page 3 of 5

trial court.”

Id. at 397–98 (citing Robbins v. H.H. Brown Shoe

Co., No. 08-CV-6885, 2009 WL 2496024, at *1 (S.D.N.Y. July 22,
2009)).
The crux of Plaintiff’s argument in support of his Second
Reconsideration Motion is that his mother, Mary, does not view
herself as a victim of Plaintiff’s 2006 financial crimes that
resulted in the theft of $34,000 from Mary’s bank account, a crime
to which Plaintiff pled guilty.

Mary averred to that in her

Affidavit (see ECF No. 3-1 at ¶ 25), which Plaintiff contends the
Court overlooked (see Second Reconsideration Motion at 1.)
so.

Not

The Court considered said Affidavit, inter alia, in ruling on

the balance of Plaintiff’s Injunction Application.
September 16 Order at 5.)

(See, e.g.,

Thus, the Court did not overlooked any

data presented by the Plaintiff in support of the Injunction
Application and certainly none that might reasonably be expected
to alter the conclusion reached by the Court in its September 16
Order.
Similarly,

having

considered

all

the

parties’

submissions in support of and in opposition to the Injunction
Application, there was an adequate basis for the Court’s decision,
as articulated in the September 16 Order, without the necessity of
a hearing on the Injunction Application.

See Weisshaus v. Cuomo,

512 F. Supp. 3d 379, 386 n.3 (E.D.N.Y. 2021) (cleaned up) (quoting
Hafez v. City of Schenectady, No. 1:17-CV-0219, 2017 WL 6387692,
Page 4 of 5

at *5 (N.D.N.Y. Sept. 11, 2017)).

Therefore, to the extent

Plaintiff argues otherwise, the lack of a hearing in this instance
also would not be a basis to grant reconsideration.

See, e.g.,

Analytical Surveys, Inc. v. Tonga Partners, L.P., 684 F.3d 36, 52
(2d Cir. 2012) (quoting Sequa Corp. v. GBJ Corp., 156 F.3d 136,
144 (2d Cir. 1998) (internal quotation marks omitted)).
To the extent not specifically addressed herein, the
Court has considered Plaintiff’s remaining arguments in support of
reconsideration and finds them to be without merit.
Accordingly, IT IS HEREBY ORDERED:
(A)

Plaintiff’s Second Reconsideration Motion (ECF No. 43) is
DENIED;

(B)

Pursuant to 28 U.S.C. § 1915(a)(3), the Court certifies
that any appeal from this Order would not be 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 (1962); and

(C)

the Clerk of the Court shall mail a copy of this Order to
the pro se Plaintiff at his address of record and include
the notation “Legal Mail” on the envelope.
SO ORDERED.
/s/ JOANNA SEYBERT_____
Joanna Seybert, U.S.D.J.

Dated:

November _18th_, 2021
Central Islip, New York
Page 5 of 5