Nimkoff Rosenfeld & Schechter, LLP v. RKO Properties, Ltd. et al

Filing 395

OPINION, ORDER AND CERTIFICATION OF FACTS re: 366 LETTER MOTION for Discovery addressed to Magistrate Judge Henry B. Pitman from Ira Daniel Tokayer, Esq. dated January 27, 2017, filed by RKO Properties, Ltd., 359 LETTER MOTION to C ompel Ira Tokayer, Esq. to serve supplemental interrogatory responses in accordance with Magistrate Judge Pitman's September 29, 2016 Order, among other relief requested, addressed to Magistrate Judge Henry B. Pitman filed by Nimkoff Rosenfeld & Schechter, LLP. (1) The Nimkoff Parties' motion to compel supplemental interrogatory responses from Tokayer (D.I. 359) is granted; (2) I certify the facts set forth above in Section III(A) (2) as accurate; (3) Tokayer's motion for Rule 11 sanctions against the Nimkoff Parties (D.I. 361) is denied and (4) RKO's motion to compel and for reconsideration (D.I. 366) is denied. The Clerk of the Court is respectfully requested to mark Docket Items 359 and 366 closed. I furt her recommend that if, within seven (7) days of the date of this Order, Tokayer fails to provide written answers under oath (or under penalty of perjury pursuant to 28 U.S.C. § 1746) as directed above in Section III (A)(2), that your Honor issue an Order directing Tokayer to show cause why he should not be held in contempt, and as further set forth herein. (Signed by Magistrate Judge Henry B. Pitman on 9/18/2017) Copies Transmitted By Chambers. (ras)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

-----------------------------------x
NIMKOFF ROSENFELD & SCHECHTER,
LLP,
Plaintiff,
-againstRKO PROPERTIES, LTD. and FIDELITY
INVESTMENTS,
07 Civ. 7983

(DAB) (HBP)

Defendants.

-----------------------------------x

OPINION, ORDER
AND CERTIFICATION
OF FACTS

RKO PROPERTIES, LTD.,
Counterclaim-Plaintiff,
-againstNIMKOFF ROSENFELD & SCHECHTER, LLP
and RONALD A. NIMKOFF,
Counterclaim-Defendants.

-----------------------------------x
PITMAN, United States Magistrate Judge:

I.

Introduction

Plaintiff, Nimkoff Rosenfeld & Schechter, LLP ("Nimkoff
Firm"), commenced this action against defendant RKO Properties,
Ltd.

( "RKO")

to recover legal fees allegedly owed to it for work

performed in a state court proceeding.

RKO has asserted counter-

claims against the Nimkoff Firm and Ronald A. Nimkoff,

a partner

at the Nimkoff Firm,

(collectively "Nimkoff Parties")

for mal-

practice.
Discovery is now closed and three applications are
pending before me.

First, the Nimkoff Parties have moved to

compel RKO's attorney Ira D. Tokayer, Esq. to provide a second
set of supplemental responses to interrogatory numbers 5,

6, 7

and 8 of the First Set of Interrogatories to Tokayer (Letter from
Harris B. Katz, dated Oct. 27, 2016 (Docket Item ("D.I.")
( "Nimkoff Motion") at 1-5) .

359

The Nimkoff Parties also assert that

Tokayer should be held in contempt because his first set of
supplemental responses violated my discovery order dated September 29, 2016 (Nimkoff Motion at 5, citing Order, dated Sept. 29,
2016 (D.I. 354)

("September 2016 Discovery Order")

1

Second,

)

Tokayer seeks Rule 11 sanctions against the Nimkoff Parties and
their attorneys for filing multiple motions against him (Letter
from Anthony J. Proscia, dated Oct. 31, 2016 (D.I. 361)
Motion")) .

("Tokayer

Third, RKO moves to compel the Nimkoff Parties to

provide the last known addresses of certain employees of the
Nimkoff Firm and a copy of the Nimkoff Firm's partnership agreement (Letter from Ira D. Tokayer, dated Jan. 27, 2017

1

(D.I. 366)

The September 2016 Discovery Order memorialized rulings I
made on the record during a conference held on September 28, 2016
(See Transcript of Hearing dated Sept. 28, 2016 (D.I. 355) at 79) .

2

( "RKO Motion") ) .

For the reasons discussed below, the Nimkoff

Parties' motion is granted and Tokayer and RKO's motions are
denied.

II.

Facts

The facts giving rise to this action are set forth in
several prior decisions, familiarity with which is assumed.

See

Nimkoff Rosenfeld & Schechter, LLP v. RKO Properties, Ltd., 07
Civ. 7983 (DAB) (HBP), 2014 WL 1201905 at *1
2014)

(S.D.N.Y. Mar. 24,

(Pitman, M.J.), objections sustained in part and overruled

in part, 2016 WL 3042733 (S.D.N.Y. May 24, 2016)
and 2013 WL 6 6 4 711

( S. D. N. Y. Feb. 2 5, 2013)

(Batts, D.J.)

(Pitman, M. J. ) .

The Nimkoff Firm alleges that RKO failed to pay legal
fees owed for its representation of RKO in a proceeding in New
York State court entitled RKO Properties v. Shaya Boymelgreen et
al.,

Index No. 2 9822 /02

Action")

(Sup. Ct., Queens Co. )

(Complaint, dated Sept. 11, 2007

("the Boymelgreen

(D.I. 1)).

RKO settled

the Boymelgreen Action in 2007, and the Nimkoff Firm claims that
it is entitled to a contingency fee as a result of the settlement.

The Nimkoff Firm also seeks declaratory relief against RKO

and a non-interested party defendant, Fidelity Investments, the
entity holding the contested fee in escrow.

RKO has asserted

counterclaims against the Nimkoff Parties for legal malpractice
3

and breach of fiduciary duty (Second Amended Answer and Counterclaims and Jury Demand, dated Mar. 28, 2011

(D.I. 87)).

RKO

asserts that as a result of the Nimkoff Parties' alleged malpractice, they have forfeited the right to compensation for their
work in the Boymelgreen Action (Second Amended Answer and Counterclaims and Jury Demand, dated Mar. 28, 2011

(D.I. 87)).

Any

additional facts that are relevant to the pending motions are set
forth below.

III.

Analysis

A.

Nimkoff Parties' Motion

The Nimkoff Parties' motion arises out of Tokayer's
representation of RKO in the Boymelgreen Action.

As discussed

further below, although RKO retained Tokayer to assist in the
settlement of the Boymelgreen Action, the Nimkoff Firm remained
counsel of record.

The parties dispute the nature and extent of

Tokayer's subsequent role in RKO's negotiation of an amended fee
agreement with the Nimkoff Firm and the settlement of the
Boymelgreen Action.

In May of 2016, Judge Batts issued an order

permitting the Nimkoff Parties to serve interrogatories on
Tokayer related to his role in the settlement of the Boymelgreen
Action and the facts surrounding a set of documents the parties

4

refer to as the "Escrow Package."

See Nimkoff Rosenfeld &

Schechter, LLP v. RKO Properties, Ltd., supra, 2016 WL 3042733 at
*1-*2, *10, *12.

The Nimkoff Parties argue that Tokayer should

be compelled to provide a second set of supplemental interrogatory responses and be held in contempt because he has repeatedly
failed to respond to interrogatories inquiring whether he received the Escrow Package prior to the commencement of this
action.

1.

Failure to Meet and Confer

Tokayer argues that the Nimkoff Parties' motion is
premature because the Nimkoff Parties did not seek to meet and
confer with Tokayer as required by Fed.R.Civ.P. 37(a) (1) prior to
filing this motion.

The Nimkoff Parties argue that there is no

meet and confer requirement for a motion brought pursuant to Rule
4 5.

2

2

Although the Nimkoff Parties cite no authority for this
argument, I note that there are cases holding that the Federal
Rules do not impose a "meet and confer" requirement for the
enforcement of a Rule 45 subpoena.
See Travelers Indem. Co. v
Metro. Life Ins. Co., 228 F.R.D. 111, 115 (D. Conn. 2005) (meet
and confer requirement does not apply to motions brought under
Rule 45); Saye v. Old Hill Partners, Inc., 3:03 CV 1071 DJS, 2004
WL 2750319 at *2 (D. Conn. Dec. 1, 2004) ("The court will not
deny [the] pending motions [on the basis of the movant's failure
to meet and confer] because Local Rule 37 does not expressly
state that certification must be provided when seeking relief
(continued ... )
5

Regardless of whether the Nimkoff Parties were required
to meet and confer with Tokayer before making their motion, their
failure to meet and confer with Tokayer is not a basis for
denying the motion because I conclude that a meet and confer
would have been futile.

As explained below, Tokayer has had

three opportunities to answer the interrogatories in issue
(including in response to this motion), and in each instance, he
has refused to provide clear and direct answers.

Ordering the

parties to meet and confer at this point would only "further
delay .

resolving these issues on the merits."

Simpson, 02 Civ. 4917

Time Inc. v.

(MBM) (JCF), 2002 WL 31844914 at *2

(S.D.N.Y. Dec. 18, 2002)

(Francis, M.J.)

(excusing failure to

meet and confer); see also Gibbons v. Smith, 01 Civ. 1224
2010 WL 582354 at *2

(S.D.N. Y. Feb. 11, 2010)

(LAP),

(Preska, D.J.)

("relief from the meet-and-confer requirement" is warranted where
"any attempt to resolve the dispute informally would have been
futile"); Excess Ins. Co., Ltd. v. Rochdale Ins. Co., 05 Civ.
10174, 2007 WL 2900217 at *l
D. J.)

(S.D.N.Y. Oct. 4, 2007)

(Sweet,

("Courts have excused a failure to meet and confer in

situations where to do so would be clearly futile,
time constraints mandate immediate action."

2

( • • • continued)
under Rule 45. ") .

6

or exigent

(citations omitted))

I shall, therefore, address the substance of the Nimkoff Parties'
motion.

2.

Motion to Compel

At the time the Boymelgreen Action was being settled,
RKO retained Tokayer as counsel for the purposes of finalizing
the settlement.

Although the Nimkoff Firm remained as counsel of

record, RKO argues that the fee agreement between the Nimkoff
Firm and RKO was modified when Tokayer was retained.

The Nimkoff

Parties, however, argue that the fee agreement was not modified
due, in part, to RKO and Tokayer's failure to take certain steps
with respect to the Escrow Package that Mr. Nimkoff asserts he
delivered to Tokayer in July 2007.

The Nimkoff parties allege

the following facts:
10. On or about July 13, 2007, Mr. Tokayer, in a
telephone conversation with me, requested that, in
connection with his role as the lawyer then handling
all settlement matters on behalf of RKO in the
Boymelgreen Action, I provide him with certain documents relating to that action.
11. Mr. Tokayer represented that it was his intention
to, and that he would, hold those documents in escrow
and not release them to anyone until certain escrow
conditions were met.
13. On July 16, 2007, pursuant to his request, I
forwarded a group of five documents to Mr. Tokayer,
with a cover letter (the "Escrow Letter") confirming
Mr. Tokayer's agreement and obligation to hold those
documents in escrow and not deliver them "to anyone to
7

maintain (including Robert Herskowitz[, a principal of
RKO]) unless and until all five documents have been
fully executed and fully executed originals of all five
documents have been sent back to me." .
14. The five enclosures to the Escrow Letter included:
(1) Correspondence from me to Mr. Herskowitz dated July
16, 2007, through which the Nimkoff Firm was then
prepared to agree to accept a fee calculated on far
less than the settlement sum, as a result of Mr.
Herskowitz's representations to me (which I later
learned were willfully false), that, in order to receive the settlement sum, he had to supply to the
defendants in the Boymelgreen Action goods and services
having a value well into seven figures (the "Purported
Amended Fee Agreement"); (2) Stipulation and Notice of
Cancellation of Notice of Pendency; (3) Stipulation
Discontinuing Action with Prejudice; (4) my Affirmation
dated July 16, 2007; (5) my letter of instructions to
Ian Ceresney dated July 16, 2007 (the "Letter of Instructions").
Exhibit D.
15. The Purported Amended Fee Agreement was signed on
my behalf and included a blank countersignature line
for Mr. Herskowitz.
Exhibit D.
16. The Purported Amended Fee Agreement was personally
delivered to Mr. Tokayer, to be held in escrow until
all five of the documents enclosed with the Escrow
Letter were fully executed, and the fully executed
originals of all five documents were sent back to me.
Exhibit D.
17. The only means by which the Purported Amended Fee
Agreement, as signed on my behalf, was distributed by
the Nimkoff Firm was as part of the Escrow [Package]
delivered to Mr. Tokayer.
18. The Nimkoff Firm never sent the Purported Amended
Fee Agreement, as signed on my behalf, to Mr.
Herskowitz, or to anyone other than Mr. Tokayer.
19. The Letter of Instructions was signed on my behalf
and contained a countersignature line for execution by
Mr. Ceresney.
However, as I never received back the
8

Letter of Instructions containing Mr. Ceresney's signature (and, in connection with this action, Mr. Ceresney
has denied even seeing it), the agreed upon escrow

conditions, were, for among other reasons as well,
never met, and the Purported Amended Fee Agreement was,
therefore, a nullity.
20.
The Purported Amended Fee Agreement as supposedly
executed by Mr. Herskowitz was never provided to the
Nimkoff Firm until it was produced in discovery in this
action.
(Affidavit of Ronald A. Nimkoff in Opposition to the Specific
Objections of Non-Party Ira D. Tokayer, Esq., sworn to on May 20,
2013 (D.I. 225)

(emphasis in original); see also Nimkoff

Rosenfeld & Schechter, LLP v. RKO Properties, Ltd., supra, 2016
WL 3042733 at *1-*2; Complaint, dated Sept. 11, 2007

(D.I. 1)

~

12) .
Interrogatory four of the Nimkoff Parties' First Set of
Interrogatories to Tokayer asked whether, prior to the commencement of the action, Tokayer received the Escrow Package, or any
portions thereof (Nimkoff Motion, Ex. E).

In a response dated

July 21, 2016, Tokayer stated that "[s]ubject to and without
waiving the foregoing General Objections, Tokayer does not recall
receiving the purported 'Escrow Package' or any portion thereof"
(Nimkoff Motion, Ex. E).

In interrogatories 5 through 8, the

Nimkoff Parties asked whether Tokayer received each of the
documents that comprised the Escrow Package.

9

In the same set of

responses, Tokayer objected and stated that "Tokayer incorporates
his Response to Interrogatory No. 4"

(Nimkoff Motion, Ex. E).

In August 2016, the Nimkoff Parties moved to compel
supplemental responses to interrogatories 5 through 8 (Nimkoff
Motion, Ex. C), and I granted that request at a conference held
on September 28, 2016.

My rulings were memorialized in the

September 2016 Discovery Order.

During the conference,

that "Nimkoff is entitled to .

. know whatever [Tokayer]

recalls"
at 7).

I stated

(Transcript of Hearing dated Sept. 28, 2016 (D.I. 355)
I ruled that Tokayer should "clearly state whether or not

he received the escrow package" (Transcript of Hearing dated
Sept. 28, 2016 (D.I. 355) at 7).
Tokayer's supplemental responses to interrogatories 5
through 8 are identical.
the following response:

He states objections and then provides
"Tokayer does claim he did not receive

it; only that he does not recall receiving it prior to this
instant action [sic]"

(Nimkoff Motion, Ex. F)

Tokayer's second supplemental responses fail to comply
with my September 2016 Discovery Order because it is not clear
from those responses whether Tokayer is asserting that he never
received the Escrow Package or its contents or that he did not
receive the Escrow Package prior to the instant action or that he
does not know when he first received the Escrow Package or its
10

contents.

In the first clause of his supplemental response

regarding each document in the Escrow Package, Tokayer makes the
unconditional statement that "he did not receive" the documents
(Nimkoff Motion, Ex. F).

However, in the second clause of the

response, Tokayer states "only that he does not recall receiving
[them] prior to this instant action"

(Nimkoff Motion, Ex. F).

These contradictory responses are also inconsistent with
Tokayer's response to interrogatory four, which states that
"Tokayer does not recall receiving the purported 'Escrow Package'
or any portion thereof."

In the aggregate, Tokayer's responses

are meaningless gibberish and provide no useful information.
Tokayer's letter in opposition to the Nimkoff Parties'
contempt motion is similarly unhelpful.

Rather than attempt to

explain his inconsistent statements, Tokayer claims that "[t]here
can be no further elaboration by Tokayer beyond that he 'does not
recall receiving' the documents"

(Tokayer Motion at 3).

Tokayer's letter does not address the first clause of his supplemental responses in which Tokayer claims that "he did not receive" the documents that made up the Escrow Package.

Tokayer

cannot have it both ways -- he must clarify whether he does not
recall receiving the documents prior to the commencement of the
action or whether he is claiming that his memory is clear that he
did not receive the Escrow Package or its contents at all, either
11

prior to or after the commencement of the action.

3

Tokayer has

failed to comply with my discovery order.
Accordingly, the Nimkoff Parties' motion to compel
Tokayer to provide supplemental responses is granted.

However,

instead of a second set of supplemental responses to the interrogatories posed by the Nimkoff Parties, no later than seven days
from the date of this Order, Tokayer is to respond in writing and
under oath (or under penalty of perjury pursuant to 28 U.S.C.

§

1746) to the following questions:
1.
Do you recall ever receiving the Escrow Package or
any part thereof prior to the date of this Order?
2.
If you admit that you received the Escrow Package
or any part thereof prior to the date of this Order,
which parts did you receive and when did you first
receive each part?

3

The Nimkoff Parties have accurately summarized the confusion created by Tokayer's responses:
It is still entirely unclear as to whether Mr. Tokayer
is claiming that he did receive some, or all, of the
referenced documents [in the Escrow Package] prior to
the commencement of this action, but does not recall
how he received them, or if he is claiming that he
never received any of the referenced documents prior to
the commencement of this action.
It is also still
entirely unclear as to when Mr. Tokayer first recalls
being in possession of any such document(s), if at all,
prior to the commencement of this action.
(Nimkoff Motion at 4).
12

3.

Motion for Contempt

In the absence of the parties' consent to a magistrate
judge's exercising plenary jurisdiction pursuant to 28 U.S.C. §
636(c), a magistrate judge can neither grant nor deny a motion
for contempt.

As explained by the Honorable John G. Koeltl,

United States District Judge,

a magistrate judge's role with

respect to such a motion is limited by 28 U.S.C. § 636(e) (6)

to

certifying or declining to certify the facts as constituting
contempt:
[28 U.S.C. § 636(e) (6)] provides that a United States
Magistrate Judge shall, in a case other than one over
which the magistrate judge presides with the consent of
the parties under 28 U.S.C. § 636(c) or a misdemeanor
case proceeding before the magistrate judge under 18
U.S.C. § 3401, certify facts constituting civil contempt to the district judge.
See 28 U.S.C. §
636 (e) (6) (A), (e) (6) (B) (iii).
The magistrate judge may
also issue an order requiring the individual found to
have committed the acts in question to show cause
before the district court why the individual should not
be adjudged in contempt of court.
See 28 U.S.C. §
636(e) (6).
Where the magistrate judge has certified facts
constituting contempt, the district court must make an
independent determination of the facts certified and
consider any additional evidence.
See 28 U.S.C. §
636(e) (6).
The determination of whether the conduct
constitutes contempt and, if so, what sanctions are
appropriate are left to the discretion of the district
court.
28 U.S.C. § 636(e) (6) (B).
JSC Foreign Econ. Ass'n Technostroyexport v.
Servs.,

Inc.,

03 Civ. 5562

(JGK) (AJP),
13

Int'l Dev.

& Trade

2006 WL 1148110 at *1

(S.D.N.Y. Apr. 28, 2006); see also Servaas Inc. v. Republic of
Iraq, 09 Civ. 1862 (RMB), 2013 WL 5913363 at *2
2013)

(S.D.N.Y. Nov. 4,

(Berman, D.J.); Hunter TBA, Inc. v. Triple V Sales, 250

F.R.D. 116, 117-18 (E.D.N.Y. 2008).
I hereby certify the facts set forth in the preceding
section as correct.
Notwithstanding Tokayer's failure to provide the
information sought by the Nimkoff Parties, I do not recommend
that he be held in contempt at this time.

Rather,

I recommend

that, if he fails to provide clear and unequivocal answers to the
questions set forth on page 12, above, within seven days of the
date of this Order, the Court issue an Order directing Tokayer to
show cause why he should not be held in contempt.
A finding of contempt is a particularly serious matter
for an attorney.

It ordinarily must be disclosed on any applica-

tion for admission pro hac vice, and it can be expected to be
cited against the attorney in any future discovery disputes.

In

short, it follows an attorney throughout his or her career.
In addition, upon a finding of civil contempt, a court
is limited to coercive and compensatory remedies; a punitive
sanction is not available.

CBS Broad. Inc. v. FilmOn.com, Inc.,

814 F.3d 91, 101 (2d Cir. 2016); Paramedics Electromedicina
Comercial, Ltda. v. GE Medical Systems Information Technologies,
14

Inc., 369 F.3d 645, 657

(2d Cir. 2004).

The Nimkoff Parties

offer no evidence of loss; thus, if Tokayer were held in contempt, the Court could only impose a sanction that was geared
toward compelling Tokayer to provide the information sought.

To

the extent it is necessary to coerce Tokayer to comply with the
discovery request, the threat of having to show cause why he
should not be held in contempt (and the possible consequences of
a finding of contempt) should be sufficient in the first instance.

B.

Tokayer's Motion

Tokayer asserts that sanctions pursuant to Fed.R.Civ.P.
11 should be imposed on the Nimkoff Parties and their attorneys

for filing several "baseless" motions against Tokayer and for
filing a lawsuit against Tokayer that has been dismissed (Tokayer
Motion at 4).
As an initial matter, Tokayer, as a non-party, lacks
standing to seek Rule 11 sanctions in this action.
News,

Inc. v. Kheel,

See New York

972 F.2d 482, 486 (2d Cir. 1992)

(non-party

attorney did not have right to intervene in action for purpose of
seeking Rule 11 sanctions).
Further, even if Tokayer had standing, his motion would
have to be denied because he has failed to comply with Rule ll's
15

safe harbor provision.

Rule 11 contains a "safe harbor" provi-

sion which requires that any motion served under the rule "must
not be filed or be presented to the court if the challenged
paper, claim, defense, contention, or denial is withdrawn or
appropriately corrected within 21 days after service or within
another time the court sets."

Fed.R.Civ.P. 11 (c) (2).

Thus, a

party charged with a violation of Rule 11 effectively must be
given 21 days to withdraw the offending submission.

"A motion

that fails to comply with the safe harbor provision of Rule 11
must be denied."
(S.D.N.Y. 2010)

Castro v. Mitchell, 727 F. Supp. 2d 302, 306
(Gorenstein, M.J.); see also Rojas v. Schkoda,

319 F. App'x 43, 44

(2d Cir. 2009)

Britt, 420 F.3d 161, 163 n.2

(summary order); Bryant v.

(2d Cir. 2005); Perpetual Sec.,

v. Tang, 290 F.3d 132, 142 (2d Cir. 2002).

Inc.

Tokayer offers no

evidence that he served his motion on the Nimkoff Parties more
than twenty-one days before filing it with the Court.

Tokayer's

motion is, therefore, denied.

C.

RKO's Motions

1.

Motion to Compel:
Witness Contact Information

RKO's motion to compel the Nimkoff Parties to produce
the last-known addresses of the Nimkoff Firm's bookkeeper and
16

secretary is denied because RKO first made the request after the
discovery deadline had passed.
In my September 2016 Discovery Order,

I noted that

discovery was closed and that "no additional discovery requests
may be served"

(September 2016 Discovery Order,

~

8).

Nonethe-

less, RKO first requested this information at Ronald A. Nimkoff's
deposition on October 7, 2016. 4

Therefore, RKO's motion for this

discovery is denied as untimely.

2.

Motion for Reconsideration:
Nimkoff Partnership Agreement

RKO's motion to compel the Nimkoff Parties to produce
the Nimkoff Firm's partnership agreement is a belated attempt to
seek reconsideration of my July 29, 2016 Order denying RKO's
request for this same document (see Order, dated July 29, 2016
(D.I. 335)

("July 2016 Discovery Order")

~

14) . 5

As such, the

motion is denied because it is untimely and because RKO has not
4

RKO argues that its requests are timely because "the depositions of Mr. Nimkoff and Mr. Rosenfeld were noticed, scheduled
and ordered while discovery was still open and the narrow and
discrete requests which are the subject of this letter to which
we are entitled are a direct outgrowth therefrom" (RKO Motion at
2).
RKO's argument has no merit. A deposition that is taken
after the discovery deadline is not a vehicle for a party to make
untimely requests for additional discovery.
~The

July 2016 Discovery Order memorialized rulings I made
on the record during an in court conference (see Transcript of
Hearing, dated July 27, 2016 (D.I. 337) at 81-86).
17

cited any legitimate basis to justify reconsideration of the July
2016 Discovery Order.
Motions for reconsideration are appropriate only under
limited circumstances.

Local Civil Rule 6.3 requires that a

motion for reconsideration must be served within 14 days after
the entry of the decision in issue.

Furthermore, as explained by

the late Honorable Peter K. Leisure, United States District
Judge, in Davidson v. Scully, 172 F. Supp. 2d 458, 461-62
(S.D.N.Y. 2001):
A motion for reconsideration may not be used to
advance new facts, issues or arguments not previously
presented to the Court, nor may it be used as a vehicle
for relitigating issues already decided by the Court.
See Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d
Cir. 1995). A party seeking reconsideration "is not
supposed to treat the court's initial decision as the
opening of a dialogue in which that party may then use
such a motion to advance new theories or adduce new
evidence in response to the court's rulings." Polsby
v. St. Martin's Press, Inc., No. 97 Civ. 690, 2000 WL
98057, at *1 (S.D.N.Y. Jan 18, 2000) (Mukasey, J.).
Thus, a motion for reconsideration "is not a substitute
for appeal and 'may be granted only where the Court has
overlooked matters or controlling decisions which might
have materially influenced the earlier decision.'"
Morales v. Quintiles Transnational Corp., 25 F. Supp.
2d 369, 372 (S.D.N.Y. 1998) (citations omitted).
See also Torres v. Carry, 672 F. Supp. 2d 346, 348
2009)

(Marrero, D.J.); Mahmud v. Kaufmann,

269-70 (S.D.N.Y. 2007)

(Conner, D.J.).

18

(S.D.N.Y.

496 F. Supp. 2d 266,

"A movant for reconsideration bears the heavy burden of
demonstrating that there has been an intervening change of
controlling law, that new evidence has become available, or that
there is a need to correct a clear error or prevent manifest
injustice."

Quinn v. Altria Grp.,

2008 WL 3518462 at *1

Inc.,

07 Civ. 8783

(S.D.N.Y. Aug. 1, 2008)

citing Virgin Airways v. Nat'l Mediation Bd.,

(Swain, D.J.),
956 F.2d 1245, 1255

(2d Cir. 1992); see also Shrader v. CSX Transp.,
255, 257

(2d Cir. 1995)

(LTS) (RLE),

Inc., 70 F.3d

("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."); accord In re 650 Fifth Ave. and Related Properties, 08
Civ. 10934

(KBF), 2014 WL 3744404 at *l

(S.D.N.Y. July 28, 2014)

(Forrest, D.J.), aff'd sub nom., Havlish v. Hegna,
34

( 2d Cir. 2016)

673 F. App'x

(summary order) , petition for cert. filed, No.

17-306 (Aug 24, 2017).

"These limitations serve to ensure

finality and to prevent losing parties from using motions for
reconsideration as a vehicle by which they may then plug the gaps
of a lost motion with additional matters."

In re City of New

York, as Owner & Operator of M/V Andrew J. Barberi, CV-03-6049
(ERK) (VVP), 2008 WL 1734236 at *1
19

(E.D.N.Y. Apr. 10, 2008),

citing Zoll v. Jordache Enters. Inc., 01 Civ. 1339 (CSH), 2003 WL
1964054 at *2

(S.D.N.Y. Apr. 24, 2003)

(Haight, D.J.); accord

Cohn v. Metro. Life Ins., Co., 07 Civ. 0928
at *1

(S.D.N.Y. Sept. 7, 2007)

(HB), 2007 WL 2710393

(Baer, D.J.).

RKO's motion for reconsideration suffers from multiple
defects.

First, it is untimely.

The motion was filed on January

27, 2017, six months after I issued the July 2016 Discovery Order
denying RKO's motion to compel disclosure of the partnership
agreement and far outside the 14-day time limit.

See S.D.N.Y.

Local Civil Rule 6.3.
Second, RKO's motion is defective because RKO has not
identified any intervening change of controlling law, new evidence, need to correct a clear error or prevent manifest injustice that would justify reconsideration of the prior order.
Rather, RKO's arguments in favor of reconsideration are an
attempt to advance new facts,
previously presented.

issues and arguments that were not

At the July 27, 2016 conference, RKO

argued, without success, that the partnership agreement was
relevant because it could shed light on whether the Nimkoff Firm
had standing to maintain this lawsuit (Transcript of Hearing,
dated July 27, 2016 (D.I. 337) at 81-85).

In RKO's most recent

motion, RKO cites to Nimkoff partner Shimon A. Rosenfeld's
statement that the "partnership at [the Nimkoff Firm] was nothing
20

more than an expense sharing arrangement"

(Affidavit of Shimon A.

Rosenfeld, Esq., sworn to on Sept. 19, 2016 (D.I. 366-4)

~

5).

RKO asserts that Rosenfeld's assertion calls into question the
validity of the partnership agreement and that RKO may be able to
use the document to assert additional defenses in this action or
affirmative claims against the Nimkoff Parties (RKO Motion at 12).

Thus, RKO's motion does exactly what a motion for reconsid-

eration cannot do -- it relies on different facts and alternative
arguments to seek reconsideration of the July 2016 Discovery
Order.

RKO's belated motion for reconsideration is, therefore,

denied.

IV.

Conclusion

Accordingly, for all the foregoing reasons,

(1) the

Nimkoff Parties' motion to compel supplemental interrogatory
responses from Tokayer (D.I. 359) is granted;

(2)

I certify the

facts set forth above in Section III(A) (2) as accurate;
(3) Tokayer's motion for Rule 11 sanctions against the Nimkoff
Parties (D.I. 361) is denied and (4) RKO's motion to compel and
for reconsideration (D.I. 366) is denied.

The Clerk of the Court

is respectfully requested to mark Docket Items 359 and 366
closed.

21

I further reconunend that if, within seven (7) days of
the date of this Order, Tokayer fails to provide written answers
under oath (or under penalty of perjury pursuant to 28 U.S.C. §
174 6) as directed above in Section I I I (A) ( 2) , that your Honor
issue an Order directing Tokayer to show cause why he should not
be held in contempt.

Dated:

New York, New York
September 18, 2017
SO ORDERED

Copies transmitted to:
All counsel

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