Assembly Point Aviation, Inc. v. Richmor Aviation, Inc. et al
MEMORANDUM-DECISION AND ORDER: The Court hereby ORDERS that Defendant's # 110 motion for reconsideration is DENIED. The Court further ORDERS that Defendant's motion to certify the Court's May 19, 2017 Memorandum-Decision and Order fo r an interlocutory appeal to the Second Circuit Court of Appeals is DENIED. The Court further ORDERS that Plaintiff's # 113 cross-motion is DENIED as moot. Signed by Senior Judge Frederick J. Scullin, Jr. on 7/27/2017. Signed by Senior Judge Frederick J. Scullin, Jr. on 7/27/2017. (nmk)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
ASSEMBLY POINT AVIATION, INC.,
RICHMOR AVIATION, INC.,
WHITEMAN OSTERMAN &
One Commerce Plaza
Albany, New York 12260
Attorneys for Plaintiff
JOHN J. HENRY, ESQ.
ROBERT S. ROSBOROUGH, IV, ESQ.
TABNER, RYAN & KENIRY, LLP
18 Corporate Woods Boulevard
Albany, New York 12211-2605
Attorneys for Defendant
WILLIAM RYAN, JR., ESQ.
BRIAN M. QUINN, ESQ.
SCULLIN, Senior Judge
MEMORANDUM-DECISION AND ORDER
On May 19, 2017, the Court, in a Memorandum-Decision and Order, granted Plaintiff's
motion for a new trial and denied its motion for judgment as a matter of law. See Dkt. No. 109.
Pending before the Court is Defendant's motion for reconsideration of the Court's MemorandumDecision and Order, pursuant to Rule 60(b) of the Federal Rules of Civil Procedure and Local
Rule 7.1(g), or, alternatively, to amend that Memorandum-Decision and Order to include
certification of an issue to the Second Circuit pursuant to 28 U.S.C. § 1292(b). See Dkt. No.
Motion for reconsideration
Reconsideration "'is an extraordinary remedy to be employed sparingly in the interests of
finality and conservation of scarce judicial resources.'" In re Health Mgmt. Sys., Inc. Secs. Litig.,
113 F. Supp. 2d 613, 614 (S.D.N.Y. 2000) (quoting Wendy's Int'l, Inc. v. Nu-Cape Construction,
Inc., 169 F.R.D. 680, 685 (M.D. Fla. 1996)) (other citations omitted). "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) (citations omitted). Generally, there are "'only
three possible grounds upon which motions for reconsideration may be granted; they are (1) an
intervening change in controlling law, (2) the availability of new evidence not previously
available, or (3) the need to correct a clear error of law or prevent manifest injustice."' Gaston v.
Coughlin, 102 F. Supp. 2d 81, 83 (N.D.N.Y. 2000) (quoting In re C-TC 9th Ave. P'ship, 182
B.R. 1, 3 (N.D.N.Y. 1995) (McAvoy, C.J.).
Furthermore, in response to Defendant's motion, Plaintiff cross-moved the Court to certify
whether it should be granted judgment as a matter of law, "should this Court certify questions of
law for an interlocutory appeal to the Second Circuit concerning [Defendant's] account stated
defense[.]" See Dkt. No. 113-1 at 13. However, as discussed below, because the Court denies
Defendant's motion, it denies Plaintiff's motion as moot.
The Court presumes the parties' familiarity with the factual and procedural background of this
Furthermore, 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) (quoting Sequa Corp. v. GBJ Corp., 156 F.3d 136, 144 (2d
Cir. 1998)). Consequently, a plaintiff "cannot use a motion for reconsideration to advance new
facts or arguments and may not submit affidavits or new material." In re Residential Capital,
LLC, No. 12-12020, 2016 WL 6783316, *3 (Bankr. S.D.N.Y. Nov. 10, 2016) (citations omitted).
The gravamen of Defendant's arguments amounts to merely its disagreement with, and
misunderstanding of, the Court's Memorandum-Decision and Order. For example, Defendant
argues that "[t]he holding . . . essentially prevents the account stated defense as a means of
indirectly asserting and relying on other intertwined defenses such as those involving waiver,
modification, abandonment, laches, and equitable estoppel, among others." See Dkt. No. 110-1
at 9. To the contrary, the Court recognized that the jury's verdict was founded on the concept
"that Plaintiff's claim was barred because a significant amount of time had elapsed between when
the SFA contract began and when Plaintiff first asserted its rights to recover." See Dkt. No. 109
at 11 n.2. Perhaps laches or waiver could have been established at trial; however, the Court did
not instruct the jury on those affirmative defenses. Thus, the Court will not speculate whether
the jury would have so found had the Court provided such instructions.
Furthermore, Defendant's explanation that the "the May 19 Order essentially concludes
that a jury instruction may never contain a verdict with findings of both the existence of a
contract and the existence of an account stated defense" misses the point. See Dkt. No. 110-1 at
10. Rather than holding that the doctrine of account stated could not serve as an affirmative
defense, the Court concluded that it could not serve as an affirmative defense to void the oral
modification of the parties' contract. That is, after the jury found that the parties orally modified
their contracts, the account stated defense could not be used to confirm the contents of the oral
modification because no party produced a scintilla of evidence showing that the parties intended
the monthly invoices to include payments for the unused flight hours. See Dkt. No. 109 at 10.
The Court has considered Defendant's other arguments and finds that Defendant has
failed to point to a single error in the Court's analysis but rather merely reiterates arguments that
it raised in its previous motion, which the Court rejected. Therefore, the Court denies its motion
for reconsideration. 3
Motion to certify the Court's May 19, 2017 Memorandum-Decision and Order for
an interlocutory appeal to the Second Circuit
Pursuant to 28 U.S.C. § 1292(b), a court may certify its order for interlocutory review
when (1) "such order involves a controlling question of law [(2)] as to which there is substantial
ground for difference of opinion and [(3) where] an immediate appeal from the order may
materially advance the ultimate termination of the litigation[.]" 28 U.S.C. § 1292(b). "[T]he
certification decision is entirely a matter of discretion for the district court[.]" In re Roman
Catholic Diocese of Albany, N.Y., Inc., 745 F.3d 30, 36 (2d Cir. 2014).
As explained above, Defendant has failed to point to any substantive error in the Court's
analysis. Accordingly, the Court denies Defendant's motion to certify its May 19, 2017
Memorandum-Decision and Order for an interlocutory appeal to the Second Circuit Court of
Defendant, however, is partially correct that its arguments could have formed the basis for
other alternative defenses, i.e., waiver and laches. To the extent that Defendant wishes, it may
attempt to argue these defenses at the upcoming trial.
Having reviewed the entire file in this matter, the parties' submissions, and the applicable
law, and for the above-stated reasons, the Court hereby
ORDERS that Defendant’s motion for reconsideration, see Dkt. No. 110-1, is DENIED;
and the Court further
ORDERS that Defendant's motion to certify the Court's May 19, 2017 MemorandumDecision and Order for an interlocutory appeal to the Second Circuit Court of Appeals, see id., is
DENIED; and the Court further
ORDERS that Plaintiff's cross-motion, see Dkt. No. 113-1, is DENIED as moot.
IT IS SO ORDERED.
Dated: July 27, 2017
Syracuse, New York
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