Ginsburg v. City of Ithaca et al

Filing 39

DECISION AND ORDER denying defts' 36 and 37 Motions for Reconsideration of 35 Order. Signed by Judge David N. Hurd on 4/2/12. (cbm ) Modified on 4/3/2012 to correct filing date (cbm ).

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
----------------------------HOWARD I. GINSBURG, as Administrator
of the Estate of Bradley Marc Ginsburg,
Plaintiff,
-vs-

5:11-CV-1374

CITY OF ITHACA and CORNELL UNIVERSITY,
Defendants.
----------------------------APPEARANCES:

OF COUNSEL:

OFFICE OF LELAND T. WILLIAMS
Attorneys for Plaintiff
95 Allens Creek Road, 1-107
Rochester, NY 14618

LELAND T. WILLIAMS, ESQ.

LAW OFFICES OF THERESA G. PULEO
Attorneys for the Defendant City of Ithaca
441 South Salina Street
Syracuse, NY 13202

DAVID TWICHELL, ESQ.

OFFICE OF UNIVERSITY COUNSEL
Attorneys for the Defendant Cornell University
300 CCC Building
Garden Avenue
Ithaca, NY 14853

NELSON E. ROTH, ESQ.

DAVID N. HURD
United States District Judge
DECISION and ORDER
On March 15, 2012, a Memorandum–Decision and Order ("MDO") was filed granting
in part and denying in part defendants' motions for judgment on the pleadings. Ginsburg v.
City of Ithaca, ___ F. Supp. 2d ___, 2012 WL 858412 (N.D.N.Y. 2012). On March 28, 2012,

defendant City of Ithaca filed a motion for reconsideration of the MDO. Dkt. No. 36. The
following day, defendant Cornell University joined this motion. Dkt. No. 37. Plaintiff has
responded. Dkt. No. 38.
In order to prevail on a motion for reconsideration, "[t]he moving party must '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.'" United States v. Bocio,
105 F. Supp. 2d 1, 2 (N.D.N.Y. 2000) (Kahn, J.) (quoting Shrader v. CSX Transp., Inc., 70
F.3d 255, 257 (2d Cir. 1995)). The three grounds upon which such a motion may be granted
include: "(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." Id. (internal quotation marks omitted).
Defendants concede there is neither new law nor new evidence to justify
reconsideration. They instead argue that, without clarification, the MDO creates potential for
manifest injustice. Specifically, defendants worry that two paragraphs constitute "binding
determination of a rule of law" that decides the merits of the negligence claims against them.1
This argument is unpersuasive. The MDO speaks for itself.
The parties are reminded that when considering a motion for judgment on the
pleadings, a court is to accept the allegations in the complaint as true and draw all
reasonable inferences in favor of the nonmoving party. Hayden v. Paterson, 594 F.3d 150,

1

These paragraphs are: (1) "As alleged in the am ended com plaint, as owner and controller of the
Thurston Avenue Bridge, defendants had a duty to m aintain that property in a reasonably safe condition to
prevent foreseeable suicides."; and (2) "Defendants thereby conclude that his suicide was unforeseeable,
absolving them of any liability. However, the possibility that Bradley in particular would com m it suicide is
irrelevant. It was clearly foreseeable that som eone m ay com m it suicide by jum ping off the Thurston Avenue
Bridge." Ginsburg, 2012 W L 858412, at *3–4.
-2-

160 (2d Cir. 2010). Indeed, the MDO specifically noted that "[t]he following facts, taken from
the amended complaint and documents incorporated by reference thereto, are assumed true
for purposes of the motions for judgment on the pleadings." Ginsburg, 2012 WL 858412, at
*1.
Accordingly, defendants' motion for reconsideration (Dkt. Nos. 36, 37) is DENIED.
IT IS SO ORDERED.

Dated: April 2, 2012
Utica, New York.

-3-