Usov v. Lazar et al
OPINION: re: 200 MOTION for Reconsideration re; 199 Judgment,,,,,,,,, and Amendment of Judgment. filed by Marc Lazar Inc. For the foregoing reasons, Defendant's motion for reconsideration is granted, and his motion to amend the Judgment is denied. (Signed by Judge Robert W. Sweet on 11/14/2017) (js)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
13 Ci v . 8 1 8
MARC LAZAR, INC.,
A P P E A R A N C E S:
Attorneys for Plaintiff
THE ROTH LAW FIRM, PLLC
295 Madison Avenue, 22nd Floor
New York, NY 10017
Richard A. Roth, Esq.
Attorneys for Defendant
NEIMAN & MA IRANZ P.C.
39 Broadway, 25th Floor
New York, NY 10006
Marvin Neiman, Esq.
Defendant Marc Lazar, Inc.
("MLI" or "Defendant") has moved
pursuant to Federal Rule of Civil Procedure 59(e) and Local
Civil Rule 6.3, to reconsider and amend the Judgment entered on
August 30, 2017
(the "Judgment," Dkt. No. 199), rendered in
favor of Plaintiff Georgy Usov ("Usov" or the "Plaintiff")
$5,134,672.16. As set forth below, Defendant's motion to
reconsider is granted. Upon reconsideration, Defendant's motion
to amend the Judgment is denied.
The factual background and procedural history of this
litigation is detailed in prior Opinions the Court, familiarity
with which is assumed. See Usov v. Marc Lazar, Inc., No. 13 Civ.
(RWS), 2017 WL 3433606 (S.D.N.Y. Aug. 10, 2017).
On June 11, 2017, Defendant moved for reconsideration on
the Court's Judgment. The motion was taken on submission and
marked fully submitted on October 11, 2017.
The Applicable Standard
Under Local Rule 6.3, a party moving for reconsideration
"must demonstrate that the Court overlooked controlling
decisions or factual matters that were put before it on the
underlying motion." Eisenmann v. Greene, 204 F.3d 393, 395 n.2
(2d Cir. 2000)
(quotation marks and citation omitted). "The
major grounds justifying reconsideration are an intervening
change of controlling law, the availability of new evidence, or
the need to correct a clear error or prevent manifest
injustice." Virgin Atl. Airways, Ltd. v. Nat'l Mediation Bd.,
956 F.2d 1245, 1255 (2d Cir. 1992)
(quotation marks and citation
The standard for granting such a motion is "strict" and
should only be done when the movant "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
(2d Cir. 1995). "Such motions are not vehicles for
taking a second bite at the apple," Rafter v. Liddle, 288 F.
App'x 768, 769 (2d Cir. 2008)
(internal quotation marks and
citation omitted), and "should not be granted where the moving
party seeks solely to relitigate an issue already decided,"
Shrader, 70 F.3d at 257.
Motions under Fed. R. Civ. P. 59(e) are governed by the
same legal standards as those under Local Rule 6.3. NEM Re
Receivables, LLC v. Fortress Re,
Inc., 187 F. Supp. 3d 390, 394
(S.D.N.Y. 2016) .
The Motion to Reconsider is Granted
Defendant contends that in the Court's August 10, 2017,
opinion on liability (the "August 10 Opinion"), several factual
matters were overlooked. Specifically, Defendant identifies an
inventory stone list dated December 31, 2008, that details
certain diamonds at issue between the parties, and an email
between Defendant and a director at Mervia, David Dawes
("Dawes"), discussing the diamonds. See (Defs.' Exs. BB & NN).
Exhibits BB and NN were produced in discovery and admitted at
As Exhibit BB was not expressly discussed in the August 10
Opinion nor the Judgment, it can be deemed to have been
overlooked. 1 Given the limited number of inventory lists
presented at trial, such evidence could "reasonabl y be expected
to affect the outcome" of the Judgment. Stoner v. N.Y.C. Ballet
Co ., No. 99 Civ . 196 (BSJ) , 2002 WL 523270, at *10 (S.D.N.Y.
Apr. 8 , 2002) . Accordingly, Defendant's motion for
reconsideration is granted .
The Motion to Amend the Judgment is Denied
Defendant seeks to amend the Judgment in two ways. First,
Defendant argues that Defendants' Exhibit BB demonstrates that
the value of the disputed stones needs to be adjusted downward
based on the valuations listed.
(Def.'s Mem. at 3-7, Dkt. No.
201) . Second, Defendant contends that it is 'entit led to a
monetary bonus for improving one of the stones in the inventory ,
as acknowledged in Defendants' Exhibit NN. In total, Defendant
seeks to reduce the amount of the Judgment by $3,575,204.
Defendants' Exhibit BB, the inventory list prepared by the
Plaintiff, dated December 31 , 2008 , was the subject of testimony
While not expressly discussed , Defendants' Exhibit BB was
indirectly referenced as an attachment to Defendants' Exhibit
NN, which was noted in the Court 's Findings of Fact. See Usov,
2017 WL 3433606, at *4 (although a misprint incorrectly
identified the date of the email as the date of the attachment).
Defendants' Exhibit NN was discussed . See id.
by Plaintiff at trial. See (Tr. 265-67) . 2 Defendant argues that
because Plaintiff testified that the values were "approx imately
market price," (Tr. 267), and prepared by Plaintiff, t he values
stated there should control the amount owed to Plaintiff from
The Judgment reflects that the valuations reached in the
meetings in 2012 between Elena Harris ("Elena") and Marc Lazar
("Lazar"), the owner of MLI, and as detailed in Plaintiff's
Exhibits 11 and 18 and discussed at those meetings, were the
basis of the va luations reached. See Judgment at 1-2.
Testimonial evidence at trial estab lished that both exhibits
demonstrated the parties' similar understanding of the market
value of the stones at the time. See (Tr. 80:12, 103:8); Usov,
2017 WL 3433606, at *6.
Defendant raises points which might indicate that the
va lu es represented retail rather than market price, such as the
column label in Plaintiff's Exhibit 18 of "Asking Per Carat" or
particular quotes from the October 2012 meeting. See (Def.'s Br.
at 5-6). However , testimonial evidence adduced at trial and
found credible by the Court indicated that the figures
Citations to "Tr." refer to the trial transcripts dated
November 28 and 29 , 2016 , and February 13 through 15, 2017 .
represented were intended to ref er to the market value of the
diamond collection. See, e.g.,
(Tr. 80:12, 103:8, 108:15-22). By
contrast, no testimony has been cited that Exhibit BB was ever
relied upon or discussed between the parties as to the value of
the stones. As such, the rele v ance of 2008 inventory has not
been established, and no new or overlooked evidence establish a
basis for amending the Judgment in that regard.
Defendant has also moved to amend the Judgment by awarding
it an additional one-third bonus on the sale of a contested red
stone diamond; Defendant asserts that there was an agr e ement
between Harvey Harris ("Harris" ) , Elena's husband, and Lazar to
such an effect and that Lazar fulfilled it. See (Def.'s Mem. at
7-8). The Judgment initially determined that the bonus for
improving the stone was not established at trial.
3). In response, Defendant has adduced an email from Dawes,
(Defs.' Ex. NN), testimony from Lazar stating that he would
receive the benefits of improvements to the stone, an
arrangement the two had made on other stones in the past,
291:4-22, 293:1-294:13; see Defs.' Ex. CC).
Lazar's testimony establishes, at best, that there was a
contemplated agreeme n t betwe en Lazar and Harris as to the rest
stone. However, the Dawes email, which even Defendant
acknowledge is "wrong on the details" if , arguendo, it was
describing the particular red stone transaction,
(Def.'s Mem. at
7), neither references a one-third bonus agreement between the
parties nor establishes that Lazar is entitled to such a bonus.
See (Defs . ' Ex. NN) . A single previous l y identified transaction
between Lazar and Harris does n o t warrant amending the Judgment
in that regard .
In sum, Defe n dant has n o t established manifest injustice or
clear error, but simply a disagreement with the factual findings
of the Court . The motion to amend the Judgment to reduce the
values which the Court found established by the credible
evidence is denied .
For the foregoing reasons,
Defendant's motion for
reconsideration is granted, and his motion to amend the Judgment
It is so ordered .
New York, NY
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