Tolliver v. City of Syracuse et al
Filing
28
SUMMARY ORDER denying Tolliver's 26 Motion for Reconsideration. Signed by Senior Judge Gary L. Sharpe on 5/16/2019. (Copy served upon Eric Tolliver via regular mail on 5/16/2019)(see)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
ERIC TOLLIVER,
Plaintiff,
5:16-cv-99
(GLS/TWD)
v.
CITY OF SYRACUSE et al.,
Defendants.
________________________________
SUMMARY ORDER
Pending is plaintiff pro se Eric Tolliver’s motion for reconsideration.
(Dkt. No. 26.) Motions for reconsideration proceed in the Northern District
of New York under Local Rule 7.1(g).1 “In order to prevail on a motion for
1
Northern District of New York Local Rule 7.1(g) provides:
Unless Fed. R. Civ. P. 60 otherwise governs, 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. All motions for reconsideration shall conform
with the requirements set forth in L.R. 7.1(a)(1) and (2). The
briefing schedule and return date applicable to motions for
reconsideration shall conform to L.R. 7.1(b)(2). A motion for
reconsideration of a Magistrate Judge’s determination of a nondispositive matter shall toll the fourteen (14) day time period to
file objections pursuant to L.R. 72.1(b). The Court will decide
motions for reconsideration or reargument on submission of the
papers, without oral argument, unless the Court directs
otherwise.
reconsideration, the movant must satisfy stringent requirements.” In re CTC 9th Ave. P’ship v. Norton Co., 182 B.R. 1, 2 (N.D.N.Y. 1995). Such
motions “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). The prevailing rule “recognizes 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.” In re C-TC 9th Ave. P’ship, 182 B.R. at 3
(citation omitted). “[A] motion to reconsider should not be granted where
the moving party seeks solely to re[-]litigate an issue already decided.”
Shrader, 70 F.3d at 257.
Tolliver, who appears to misapprehend the court’s prior order,
contends, among other things, that the court misapplied controlling law
when it “erroneously evaluate [sic] plaintiff’s Independent Action/motion
under Rule 60(c)(1).” (Dkt. No. 26 ¶ 5.) Contrary to Tolliver’s belief, the
court did not acknowledge that plaintiff “properly brought Independent
2
Action.” (Id. ¶ 4.) Indeed, because Tolliver could have timely pursued
relief under Rule 60(b)(3), but inexplicably failed to do so, relief under Rule
60(d), invoking the court’s discretion to entertain an independent action, is
foreclosed. See United States v. Bastien, No. 09-CR-205, 2013 WL
1701601, at *3 (E.D.N.Y. Apr. 19, 2013), aff’d, 565 F. App’x 24 (2d Cir.
2014) (citing In re Lawrence, 293 F.3d 615, 622 n.5 (2d Cir.2002)). Having
failed to demonstrate any of the avenues for reconsideration, Tolliver’s
motion is denied.
Accordingly, it is hereby
ORDERED that Tolliver’s motion for reconsideration (Dkt. No. 26) is
DENIED; and it is further
ORDERED that the Clerk provide a copy of this Summary Order to
Tolliver.
IT IS SO ORDERED.
May 16, 2019
Albany, New York
3
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