Harrell et al v. The City Of New York , et al

Filing 74

OPINION AND ORDER re: 60 MOTION for Reconsideration, filed by David Yassky, The City Of New York, Meera Joshi, Raymond Scanlon. For all the reasons discussed above, Defendants' Motion for Reconsideration (Dkt. 60) is GRANTED in part and DENIED in part. Plaintiffs' Cross-Motion for Summary Judgment is denied as to Susan Calvo and John Peters Professional Limousines, Inc., but granted as to all other Plaintiffs. The Clerk of Court is respectfully directed to terminate Docket Entry 60. (As further set forth in this Order.) (Signed by Judge Valerie E. Caproni on 12/18/2015) (spo)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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MICHAEL HARRELL, SUSAN CALVO,
:
JOHN PETERS PROFESSIONAL LIMOUSINES, :
:
INC., JACKLYN RESTREPO, and PETER
:
CAMACHO, individually and on behalf of all
:
others similarly situated,
:
:
Plaintiffs,
:
:
-against:
CITY OF NEW YORK, MEERA JOSHI, DAVID :
:
YASSKY, and RAYMOND SCANLON,
:
Defendants. :
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USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #:
DATE FILED: 12/18/2015
14-CV-7246 (VEC)
OPINION AND ORDER

VALERIE CAPRONI, United States District Judge:
The Court assumes the parties’ familiarity with the facts of the case and directs readers to
its prior opinion. See Opinion & Order, Harrell v. City of New York, No. 14-CV-7246 (VEC),
2015 WL 5729582 (S.D.N.Y. Sept. 30, 2015) corrected on Nov. 10, 2015 (Dkt. 52). Defendants
move pursuant to Fed. R. Civ. P. 59(e)1 and Local Rule 6.3 for reconsideration and reargument
of certain portions of the Court’s September 30, 2015 Opinion and Order (hereinafter
“September 30, 2015 Opinion” or “Opinion”). For the following reasons, Defendants’ motion is
GRANTED in part and DENIED in part.

Plaintiffs assert that Defendants’ motion is untimely because Local Rule 6.3 requires a motion for
reconsideration to be filed within 14 days and that Defendants are improperly boot-strapping to the longer 28 day
deadline under Rule 59(e) of the Federal Rules of Civil Procedure. Pls. Recon. Opp’n at 2 (Dkt. 64). Courts within
this Circuit permit a motion to reconsider and amend a decision granting summary judgment to be brought under
Rule 59(e). See Patel v. Lutheran Med. Ctr. Inc., 775 F. Supp. 592, 596 (E.D.N.Y. 1991); cf. SEC v. Credit
Bancorp, Ltd., No. 99 Civ. 11395 (RWS), 2001 WL 1135652, at *1 (S.D.N.Y Sept. 26, 2001). “In general, in
determining whether a motion is brought properly under Rule 59(e), courts look beyond the form of the motion to
the substance of the relief requested.” Wright & Miller, 11 Fed. Prac. & Proc. § 2817. As Defendants correctly
note, the September 30, 2015 Opinion granted Plaintiffs’ motion for summary judgment as to first time violators
and, therefore, their motion for reconsideration and reargument of that decision may properly be brought under Rule
59(e). Defendants’ motion was timely filed on October 23, 2015, within the 28-day window provided by Rule
59(e).

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DISCUSSION2
As the Second Circuit has instructed, “[a] motion for reconsideration should be granted
only when the defendant identifies ‘an intervening change of controlling law, the availability of
new evidence, or the need to correct a clear error or prevent manifest injustice.’” Kolel Beth
Yechiel Mechil of Tartikov, Inc. v. YLL Irrevocable Trust, 729 F.3d 99, 104 (2d Cir. 2013)
(quoting Virgin Atl. Airways, Ltd. v. Nat’l Mediation Bd., 956 F.2d 1245, 1255 (2d Cir. 1992));
see also Rafter v. Liddle, 288 F. App’x 768, 769 (2d Cir. 2008) (“‘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.’” (quoting Shrader v. CSX Transp.,
Inc., 70 F.3d 255, 257 (2d Cir. 1995)). “Under Federal Rule of Civil Procedure 59(e) and Local
Civil Rule 6.3, a party seeking reconsideration must ‘demonstrate controlling law or factual
matters put before the court on the underlying motion that the movant believes the court
overlooked and that might reasonably be expected to alter the court’s decision.’” McDowell v.
Eli Lilly & Co., No. 13 Civ. 3786, 2015 WL 845720, at *2 (S.D.N.Y. Feb. 26, 2015) (quoting
MBIA Ins. Corp. v. Patriarch Partners VIII, LLC, 842 F. Supp. 2d 682, 715 (S.D.N.Y. 2012)).
These requirements are not to be taken lightly; reconsideration of a court’s prior order is an
“‘extraordinary remedy to be employed sparingly in the interests of finality and conservation of
scarce judicial resources.’” McDowell, 2015 WL 845720, at *2 (quoting Sikhs for Justice v.
Nath, 893 F. Supp. 2d 598, 605 (S.D.N.Y. 2012)). The standard for reconsideration is strict to
“prevent the practice of a losing party examining a decision and then plugging the gaps of a lost
motion with additional matters,” Jackson v. Odenat, 9 F. Supp. 3d 342, 368 (S.D.N.Y. 2014)

The Court refers to the parties’ briefing on the motion for reconsideration as “Defs. Recon. Mem.,” “Pls.
Recon. Opp’n,” and Defs. Recon. Reply.” The Court refers to the underlying motions as “Defs. MtD Mem.,” “Pls.
MSJ Mem.” “Defs. MSJ Opp’n.” and “Pls. MSJ Reply.”

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(internal quotation omitted). As the Second Circuit has stated, motions for reconsideration “are
not vehicles for taking a second bite at the apple . . . .” Rafter, 288 F. App’x at 769 (quotation
and citation omitted).
Defendants do not purport to identify a change in law or the availability of new evidence
but assert that the September 30, 2015 Opinion contains an error of law.3 According to
Defendants, this Court did not “address the individual circumstances and evidence surrounding
each plaintiff’s vehicle seizure and . . . render a ruling on the validity of the plaintiffs’ individual
claims.” Defs. Recon. Mem. at 1 (Dkt. 62). Essentially, Defendants take issue with the Court’s
determination that it could defer the adjudication of individual claims in this putative class action
and decide only the legal issue presented. See Opinion at 4-5 n.11.
Both the Defendants’ Motion to Dismiss and the Plaintiffs’ Cross Motion for Summary
Judgment presented the legal question of whether the City’s policy of seizing the vehicles of first
time violators was constitutional. If the Defendants had been correct on that legal issue, their
motion to dismiss would have been granted. Because the Court instead found that the Plaintiffs
were correct, it granted their Cross Motion for Summary Judgment as to first time violators. The
Opinion expressly anticipated that there would be further litigation regarding the class, which
would by its nature include whether the named Plaintiffs are actually members of that class. See
id. at 20 (noting that the Amended Complaint sought class certification and instructing the
parties to submit a joint letter addressing “whether Plaintiffs still wish to pursue class
certification, and, if so, whether they require class discovery before briefing that request.”).
Although they have not made the argument in so many words, the Court understands the

Defendants’ argument relative to the punitive damages claim was addressed by the Court’s corrected
Memorandum Opinion and Order dated November 10, 2015 at Docket Entry 52.

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Defendants’ argument on reconsideration to be that the Court cannot issue a binding decision on
the constitutionality of the City’s policy without first determining that at least one Plaintiff has
standing – meaning that he or she was actually injured by the policy at issue.
When responding to Plaintiffs’ Cross Motion for Summary Judgment, Defendants never
argued that there was any question of fact regarding whether Plaintiffs Michael Harrell, Jacklyn
Restrepo and Pedro Camacho were first time violators when their vehicles were seized. See
generally Defs. MSJ Opp’n (Dkt. 41). Indeed, based on the unrefuted evidence presented by
Plaintiffs, there is no question of fact that each was a first time violator who was injured by the
policy.
As to Harrell, Defendants argue in their Motion for Reconsideration for the first time that
he failed to provide any corroborating evidence of vehicle ownership – i.e., no vehicle title or
registration – and that “any grant of summary judgment pertaining to Michael Harrell is
premature” because Defendants presented evidence sufficient to create a question of fact as to
Harrell’s true and legitimate ownership of the vehicle that was seized. Defs. Recon. Mem. at 89; Defs. Recon. Reply at 7-8. Although the evidence Defendants point to was presented in
Defendants’ opposition to Plaintiffs’ Cross Motion for Summary Judgment, this particular
argument was not made. See Defs. MSJ Opp’n at 15.4 More important, Defendants concede
that they “are not disputing that records indicate that Mr. Harrell is the owner of the vehicle
seized.” Defs. Recon. Reply at 7-8. The fact that Defendants do not dispute the records that

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As noted above, a motion for reconsiderations is not a vehicle for taking a second bite at the apple by
presenting new arguments. Nevertheless, on reargument, Defendants argue for the first time that the fact that
Harrell, a college student, has had multiple vehicles seized as unlicensed for hire vehicles calls into question whether
Harrell really owns any of the vehicles. The Court concurs with the Defendants that the evidence is curious, but if
the Defendants really believe that it creates a question of fact regarding true ownership of the vehicle, that argument
should have been made in response to the Plaintiffs’ Cross Motion for Summary Judgment. It is now too late to
make the argument relative to his individual claim, although it could be relevant on the question of whether he is a
suitable class representative.

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evidence Harrell’s ownership of the seized vehicle, in conjunction with Defendants not disputing
that Harrell was a first time violator (see Defs. Recon. Mem. at 8; Defs. Recon. Reply at 7 (Dkt.
67); Defs. MSJ Opp’n at 14-15; Defs. Resp. 56.1 Stmt. ¶ 20 (Dkt. 43)) is dispositive; Harrell is
entitled to summary judgment on his individual claim.5
Plaintiff Jacklyn Restrepo is also unquestionably a first-time violator. The Opinion noted
that “Restrepo’s vehicle was seized on or around September 9, 2013, when it was being driven
by her boyfriend. Pl. 56.1 Stmt. ¶ 41. . . . Her vehicle was seized a second time on July 23, 2014,
also when being driven by her boyfriend. Id. ¶ 45.” Opinion at 2 n.2. Defendants argue in their
Motion for Reconsideration, as they did in their opposition to Plaintiffs’ Cross-Motion for
Summary Judgment, that “the September 9, 2013 incident cannot be considered by this Court,
and the Court is limited to reviewing the evidence pertaining to Ms. Restrepo’s July 23, 2014
incident only.” Defs. Recon. Mem. at 6; Defs. MSJ Opp’n at 17. The Court disagrees.
The Amended Complaint alleges two instances when Restrepo’s car was seized. The first
was allegedly “[o]n or around July 23, 2013,” Am. Compl. ¶ 86 (Dkt. 24), and the second was
allegedly “[o]n or around July 23, 2014,” id. ¶ 90. In Plaintiffs’ Cross-Motion for Summary
Judgment and supporting documents, however, Plaintiffs reference the first seizure as having
occurred on September 9, 2013. Pls. MSJ Mem. at 9; Pls.’ 56.1 Stmt. ¶ 41; Restrepo Decl. ¶¶ 15 (Dkt. 35). Plaintiffs’ use of the date July 23, 2013, in the Amended Complaint is an obvious
scrivener’s error, known to the Defendants to be such.

Defendants further argue that the Court never addressed their argument that “with regard to Michael
Harrell, Jacklyn Restrepo, and John Peters Limousines, as their vehicles were being driven unlawfully by thirdparties with no known ownership interest in the vehicle, their seizures were also justified under the community
caretaking function exception to the warrant requirement.” Defs. Recon. Reply at 8 n.5. (citing Defs. MSJ Opp’n at
19 n. 23). Because Defendants have consistently raised this argument only in footnotes, the Court is not obligated to
address it. Niagara Mohawk Power Corp. v. Hudson River–Black River Regulating Dist., 673 F.3d 84, 107 (2d Cir.
2012); see also Gross v. Rell, 585 F.3d 72, 95 (2d Cir. 2009); Tolbert v. Queens Coll., 242 F.3d 58, 75 (2d Cir.
2001); Norton v. Sam's Club, 145 F.3d 114, 117 (2d Cir. 1998) (“[A]n argument made only in a footnote was
inadequately raised.”); United States v. Restrepo, 986 F.2d 1462, 1463 (2d Cir. 1993).
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In their opposition to the Plaintiffs’ Cross Motion for Summary Judgment, Defendants
presented two summonses, one for Jason Calvo and the other for Jacklyn Restrepo, both dated
September 9, 2013, and both showing the violation occurred at 49th Street and Lexington
Avenue. Selvin Reply Decl. at Ex. N (Dkt. 44). Those summonses are consistent with the
allegations in the Amended Complaint that, for her first vehicle seizure, “[b]oth Ms. Restrepo
and her boyfriend were given summonses citing Section 19-506B(1), the boyfriend as the driver
and Ms. Restrepo as the owner,” and the car was seized “on Lexington Avenue in Manhattan.”
Am. Compl. ¶¶ 86-87. Plaintiffs’ evidence of Restrepo posting a $2000.00 seizure bond and of a
vehicle release form, both dated September 10, 2013, Ackman Decl. at Exs. 14 & 15 (Dkt. 38),
are consistent with the allegations in the Amended Complaint regarding the seizure bond and the
vehicle release form for the first incident, Am. Compl. ¶ 88. Finally, Plaintiffs’ evidence that
Restrepo’s summons was dismissed on September 18, 2013, Ackman Decl. at Ex. 5, is consistent
with the allegations in the Amended Complaint that Restrepo was found not guilty and the
summonses against her and the driver were dismissed, Am. Compl. ¶ 89. In short, the evidence
presented by Restrepo in connection with the Plaintiffs’ Cross Motion for Summary Judgment
made it clear that the reference in the Amended Complaint to a July 23, 2013, seizure was a
scrivener’s error; the date should have been September 9, 2013. Defendants knew that the
September 9th seizure was the seizure being referred to in the Amended Complaint as evidenced
by the fact that they presented the summonses from the September 9th incident in their
opposition to Plaintiffs’ Cross Motion for Summary Judgment. Accordingly, the Court deems
the Amended Complaint to have been constructively amended to conform to the proof that the
first seizure occurred on September 9, 2013. See Clomon v. Jackson, 988 F.2d 1314, 1323 (2d
Cir. 1993) (“[T]he undisputed facts as presented on the summary judgment motion served as a

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basis to deem the complaint amended to conform with the proof pursuant to Fed. R. Civ. P.
15(b).”).
Because the Defendants did not dispute in their opposition to the Cross Motion for
Summary Judgment that the seizure on September 9, 2013, was a seizure of a first-time
violator’s vehicle, see Defs. MSJ Opp’n at 17-19, Restrepo is entitled to summary judgment on
her individual claims. 6
As to Plaintiff Pedro Camacho, Defendants argued in the underlying motions and in the
motion for reconsideration that his “summons was issued in error as the summons, while
detailing for-hire activity, indicates that the ride originated in New Jersey and was continuous,
thus placing the activity beyond that prohibited by Admin. Code § 19-506(b)(1).” Id. at 19; see
also Defs. Recon. Mem. 7-8. Therefore, they argue, because Camacho’s summons did not
establish probable cause for the seizure, the resulting vehicle seizure was not authorized pursuant
to the Administrative Code. Defs. MSJ Opp’n at 19, n.24. According to Defendants, the
vehicle seizure, therefore, was a simple negligent act that does not amount to the violation of a
constitutional right. Id. at 19-20; Defs. Recon. Mem. at 7-8.
Defendants’ argument proves too much. While the taxi inspector who directed the
seizure was wrong to seize a vehicle that originated its trip in New Jersey and was continuous
(for the reasons Defendants point out), the vehicle was seized pursuant to the same policy that
led to the other seizures. Whether Camacho’s seizure can ultimately be included in the class as
proposed by Plaintiffs remains an issue to be decided another day. There is no question of fact,
however, that his vehicle was seized because of the policy that this Court has found to be

Defendants’ arguments regarding Restrepo and the “community caretaking function” in their opposition to
Plaintiffs’ Cross-Motion for Summary Judgment focused on the seizure that occurred on July 23, 2014. Defs. MSJ
Opp’n at 18-19. Regardless of the merit vel non of those arguments, they did not address Restrepo’s claims arising
from the first seizure.

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unconstitutional. The fact that he did not actually violate the law does not separate him from the
New York vehicle owners and drivers who were found not guilty after a hearing – all had their
cars seized pursuant to an unconstitutional policy.
As to Plaintiffs Calvo and John Peters Limousines, the Defendants presented evidence
that they were not first time violators when the complained of seizures occurred. See Selvin
Reply Decl. ¶ 8, Ex. L (regarding Calvo); id. ¶ 9, Ex. M (regarding John Peters Limousines).
The Opinion found that there are questions of fact as to those Plaintiffs. See Opinion at 2 n. 2, 45 n.11. Accordingly, the Court grants Defendants’ Motion for Reconsideration as to Plaintiffs
Calvo and John Peters Limousines and denies those Plaintiffs’ Cross-Motions for Summary
Judgment.
CONCLUSION
For all the reasons discussed above, Defendants’ Motion for Reconsideration (Dkt. 60) is
GRANTED in part and DENIED in part. Plaintiffs’ Cross-Motion for Summary Judgment is
denied as to Susan Calvo and John Peters Professional Limousines, Inc., but granted as to all
other Plaintiffs. The Clerk of Court is respectfully directed to terminate Docket Entry 60.
SO ORDERED.
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VALERIE CAPRONI
ALERIE
United States District Judge

Date: December 18, 2015
New York, New York

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