DG New York CS, LLC et al v. Norbut Solar Farm, LLC et al

Filing 54

ORDER: It is ORDERED that Defendants' motion for reconsideration (Dkt. No. 43 ) is DENIED. Signed by Judge David N. Hurd on February 7, 2024. (ztc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
-------------------------------DG NEW YORK CS, LLC,
DG 1 ACQUISITION CO., LLC,
NSF COVENTRY SITE 2, LLC,
NSF COVENTRY SITE 3, LLC,
NSF ENFIELD SITE 1, LLC,
NSF ENFIELD SITE 2, LLC, and
NSF ENFIELD SITE 3, LLC,
Plaintiffs,
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1:23-CV-971

NORBUT SOLAR FARM, LLC,
DAVID NORBUT,
2194 STATE HWY 206, LLC, and
APPLEGATE ROAD, LLC,
Defendants.
-------------------------------APPEARANCES:

OF COUNSEL:

BOIES, SCHILLER & FLEXNER LLP
Attorneys for Plaintiffs
30 South Pearl Street, 11th Floor
Albany, NY 12207

GEORGE F. CARPINELLO, ESQ.
JENNA C. SMITH, ESQ.

NIXON, PEABODY LAW FIRM
Attorneys for Defendants
1300 Clinton Square
Rochester, NY 14604

ERIC M. FERRANTE, ESQ.

NIXON, PEABODY LAW FIRM
Attorneys for Defendants
677 Broadway, 10th Floor
Albany, NY 12207

WILLIAM E. REYNOLDS, ESQ.

DAVID N. HURD
United States District Judge
ORDER DENYING RECONSIDERATION
On January 8, 2024, after hearing argument, this Court granted plaintiffs’
motion for a preliminary injunction and denied defendants’ 12(b)(6) motion to
dismiss. Dkt. No. 38. As the Court explained at the time:
Plaintiffs have already established that they are
substantially likely to succeed on the merits of their
breach-of-contract claim. And although the Court has
not specifically analyzed the likelihood-of-success
question attached to plaintiffs’ other claims (i.e., for
breach of the implied covenant of good faith and fair
dealing, promissory estoppel, and breach of the
covenant of quiet enjoyment), a review of the parties’
briefing and plaintiffs’ opposition confirms that, at the
very least, plaintiffs have stated plausible claims for
relief.
Dkt. No. 38 at 16–17.
Defendants have moved for partial reconsideration of the January 8, 2024
Order. Dkt. No. 43. In their view, defendant David Norbut should have been
dismissed as a defendant in this action because he is not a party to any of the
contracts upon which plaintiffs have sued. Id. In addition, defendants argue
that plaintiffs’ promissory estoppel claim should have dismissed because they
failed to allege that Norbut said, did, or promised to say or do anything in his
personal capacity. Id. Plaintiffs have opposed. Dkt. No. 53. The motion has

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been fully briefed and will be considered on the basis of the submissions
without oral argument.
Under this District’s Local Rules, “a party may file and serve a motion for
reconsideration or reargument no later than fourteen days after the entry of
the challenged judgment, order, or decree.” N.D.N.Y. L.R. 60.1. “A court may
justifiably reconsider its previous ruling if: (1) there is an intervening change
in the controlling law; (2) new evidence not previously available comes to
light; or (3) it becomes necessary to remedy a clear error of law or to prevent
manifest injustice.” Delaney v. Selsky, 899 F. Supp. 923, 925 (N.D.N.Y. 1995)
(McAvoy, J.) (citing Doe v. N.Y. City Dep’t of Soc. Servs., 709 F.2d 782, 789
(2d Cir.), cert. denied, 464 U.S. 864 (1983)).
These are demanding requirements. Shrader v. CSX Transp., Inc., 70
F.3d 255, 257 (2d Cir. 1995). 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.’” Sequa Corp. v.
GBJ Corp., 156 F.3d 136, 144 (2d Cir. 1998). Accordingly, a motion for
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, 70 F.3d at 257.

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Upon review, defendants’ motion for partial reconsideration must be
denied. Then as now, defendants paint Norbut as a mere bystander in the
events that led to this litigation. However, plaintiffs plausibly alleged that
the entity-defendants are just shell companies (of which Norbut is the sole
member) and persuasively argued that relief against Norbut in his personal
capacity was therefore at least plausibly warranted.
The Court could have said more. But a trial court is not obligated to write
a treatise on every round of motion practice. Jackson v. Fed. Exp., 766 F.3d
189, 199 (2d Cir. 2014). After all, in the pre-answer posture a trial court is
only tasked with sussing out whether the plaintiff’s pleading has plausibly
alleged their claims. If so, the decision permitting discovery on those claims
is a non-final and (typically) non-appealable order. So there is usually little
reason to drag things out with a tedious written opinion.
In this case, the Court reviewed the parties’ briefing and concluded, for
substantially the reasons set forth in plaintiffs’ opposition papers, that
plaintiffs had alleged plausible claims for relief. This latest round of briefing,
which the Court has also reviewed, changes nothing about that conclusion.
Therefore, it is
ORDERED that
Defendants’ motion for reconsideration (Dkt. No. 43) is DENIED.
IT IS SO ORDERED.
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Dated: February 7, 2024
Utica, New York.

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