United Realty Advisors, LP et al v. Verschleiser et al

Filing 525

OPINION AND ORDER DENYING DEFENDANTS MOTION FOR RECONSIDERATION re: (522 in 1:14-cv-05903-BAF) MOTION for Discovery. filed by Eli Verschleiser, (423 in 1:14-cv-08084-BAF) MOTION for Discovery. filed by Eli Verschleiser. IT IS ORDERED that defendant Eli Verschleisers motion for reconsideration is denied. (Signed by Senior Judge Bernard A. Friedman on 4/22/22, SITTING BY SPECIAL DESIGNATION) Filed In Associated Cases: 1:14-cv-05903-BAF, 1:14-cv-08084-BAF (yv)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
UNITED REALTY ADVISORS, LP, et al.,
Plaintiffs,

Civil Action No. 14-CV-5903
Civil Action No. 14-CV-8084

vs.
HON. BERNARD A. FRIEDMAN
ELI VERSCHLEISER, et al.,
Defendants.
____________________________________/
OPINION AND ORDER DENYING DEFENDANT’S
MOTION FOR RECONSIDERATION
This matter is presently before the Court on defendant Eli Verschleiser’s motion for
reconsideration (ECF Nos. 522, 523) of the Court’s January 7, 2022, order (ECF No. 520) denying
his motion for additional discovery. Plaintiffs have responded. (ECF No. 524). Pursuant to
S.D.N.Y. LR 6.3, the Court shall decide this motion without a hearing. For the following reasons,
the Court shall deny the motion.
On December 21, 2021, defendant Verschleiser filed a motion for additional
discovery contending that “certain files and data had been deleted from [plaintiff Jacob] Frydman’s
equipment during sometime in 2016, when Mr. Frydman was transitioning files and data onto a new
server.” (ECF No. 518, Page 3). He further asserted that many of the missing documents are
relevant to issues “at the heart of this matter,” yet plaintiffs failed to take any action to preserve the
material and have refused to respond to defendant’s inquiries or produce any of the requested
documents. (Id., Pages 3, 7-11).
In denying defendant’s motion, the Court explained:
This lawsuit has been ongoing for over seven years, the
discovery deadline has long since passed, and the case is ready to be
tried. As the Court communicated to the parties in an October 29,

2021, email . . . , the ongoing health crisis and consequent procedures
in place in the Southern District of New York have delayed
resolution of this matter. The Court hopes to set a trial date during
the second quarter of 2022. Although the Court will not re-open
discovery at this advanced stage of litigation, defendant may raise the
concerns expressed in the instant motion at trial and the Court will
take appropriate action at that time. If any party to this lawsuit has
failed in their duty to provide the discovery that is required pursuant
to this Court’s orders, Court rules, case law, or statute, the Court will
exercise its discretion to order warranted relief or sanctions.
(ECF No. 520, Pages 1-2).
In the instant motion, defendant asks the Court to reconsider its decision because (1)
his request to re-open discovery “is extremely limited in scope”; (2) if deprived of the requested
discovery, he “will more than likely be deprived from litigating [his] case fairly”; and (3) plaintiffs
would not be prejudiced if his requested relief was granted. (ECF No. 523, Page 7). In response,
plaintiffs contend that “Defendant’s motion is procedurally and substantively infirm and must be
denied.” (ECF No. 524, Page 2).
Fed. R. Civ. P. 60 sets forth criteria for determining whether relief from a final order
is warranted. It provides six bases for such relief:
(1) mistake, inadvertence, surprise, or excusable neglect; (2) newly
discovered evidence that, with reasonable diligence, could not have
been discovered in time to move for a new trial under Rule 59(b); (3)
fraud (whether previously called intrinsic or extrinsic),
misrepresentation, or misconduct by an opposing party; (4) the
judgment is void; (5) the judgment has been satisfied, released, or
discharged; it is based on an earlier judgment that has been reversed
or vacated; or applying it prospectively is no longer equitable; or (6)
any other reason that justifies relief.
Fed. R. Civ. P. 60(b). The Second Circuit has explained that “[p]roperly applied Rule 60(b) strikes
a balance between serving the ends of justice and preserving the finality of judgments. . . . Since

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60(b) allows extraordinary judicial relief, it is invoked only upon a showing of exceptional
circumstances.” Nemaizer v. Baker, 793 F.2d 58, 61 (2d Cir. 1986) (citations omitted).
Pursuant to Local Rule 6.3, “a notice of motion for reconsideration or reargument of
a court order determining a motion shall be served within fourteen (14) days after the entry of the
Court’s determination of the original motion.” A judge in the Southern District of New York has
explained:
[A] party seeking reconsideration must set forth concisely the matters
or controlling decisions which counsel believes the court has
overlooked . . . . The standard for reconsideration under Local Rule
6.3 is strict, and reconsideration will generally be denied unless a
moving party can point to matters that might reasonably be expected
to alter the conclusion reached by the court.
A motion to reconsider should not be granted where the
moving party is solely attempting to relitigate an issue that already
has been decided. Furthermore, reconsideration is not an invitation
for parties 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. Indeed, [t]he purpose of the local rule confining
reconsideration to matters overlooked and barring the submission of
affidavits unless authorized by the court is to ensure the finality of
decisions and to prevent the practice of a losing party examining a
decision and then plugging the gaps of a lost motion with additional
matters.
In re CRM Holdings, Ltd. Securities Litig., No. 10 CIV 00975, 2013 WL 787970, at *3 (S.D.N.Y.
Mar. 4, 2013) (internal quotation marks and citations omitted).
Defendant filed his motion for reconsideration on April 8, 2022, ninety-one days after
the Court entered its order denying his motion to re-open discovery. Moreover, defendant has failed
to set forth a satisfactory basis for the requested relief. He cites no mistake, newly discovered

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evidence, fraud, or intervening change in controlling law that would justify reconsideration of, or
relief from, the Court’s order; nor has he demonstrated that the present circumstances are
exceptional. Defendant is merely attempting to relitigate an issue that has already been decided by
this Court. Further, although defendant asserts that the information he seeks is “highly material”
to this case (ECF No. 523, Page 6), he has failed to provide any details regarding the nature or
relevance of the evidence sought. Instead, he indicates that the instant motion to re-open discovery
stems from a failed discovery request in the case of Winter Invs., LLC, et al. v. Panzer, et al. (14CV-06852), an unrelated dispute between defendant Verschleiser and plaintiff Frydman that was
dismissed with prejudice in September 2021. (ECF No. 523, Pages 4-5; ECF No. 524-1, Pages 3-4).
The discovery deadline in this case passed years ago and this matter is ready to be
tried. On April 7, 2022, the Court entered an amended trial notice in this case, setting the trial date
for June 16, 2022. (ECF No. 521). Defendant has failed to present a justifying basis for disrupting
the finality of this Court’s order or further delaying resolution of this case. As previously indicated,
defendant may raise any of the concerns expressed in the instant motion at trial and the Court will
take appropriate action at that time. Accordingly,

IT IS ORDERED that defendant Eli Verschleiser’s motion for reconsideration is
denied.
s/Bernard A. Friedman
BERNARD A. FRIEDMAN
SENIOR UNITED STATES DISTRICT JUDGE
SITTING BY SPECIAL DESIGNATION
Dated: April 22, 2022
Detroit, Michigan

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