Greer v. Mehiel et al

Filing 485

MEMORANDUM OPINION AND ORDER: The Court denies Plaintiffs Rule 60 motion. The Clerk of the Court is respectfully directed to close this case. SO ORDERED. (Signed by Judge Alison J. Nathan on 1/31/2019) (jca)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

Steven E. Greer,
Plaintiff,
l 5-cv-6119 (AJN)

-vMEMORANDUM
OPINION & ORDER

Dennis Mehiel, et al.,
Defendants.

ALISON J. NATHAN, District Judge:
Pro se Plaintiff Steven E. Greer moves pursuant to Federal Rule of Civil Procedure 60(b)
for reconsideration of the Comi's March 28, 2018 Memorandum Opinion & Order granting
summary judgment in favor of Defendants. Dkt. No. 466. For the reasons set forth below,
Plaintiffs motion for relief under rule 60(b) is denied.

I.

BACKGROUND
Pro se Plaintiff Steven E. Greer brought this suit against the company that owns his

former apartment, the company that manages that apartment building, the Battery Park City
Authority ("BPCA"), and several individuals associated with those entities. The facts are
described in the Court's March 28, 2018 Memorandum Opinion & Order. Dkt. No. 433. Briefly,
in 2009, Plaintiff created a blog called BatteryPark.TV, where he published articles about the
BCPA's activities. On January 24, 2014, Defendant Milford Management informed Plaintiff that
his lease would not be renewed. When Plaintiff did not vacate his apartment as requested,
Defendant Mariners Cove began an eviction proceeding against him, which was ultimately
successful in the spring of 2016. In June 2015, while the eviction proceedings were ongoing,
Plaintiff was asked to leave a BPCA board meeting when the board planned to transition to an
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executive session. Plaintiff refused until a BPCA employee threatened to call the police.
Following that incident, BPCA Chairman Dennis Mehiel decided to exclude Plaintiff from the
BPCA offices, including future board meetings. Sh01ily thereafter, Plaintiff filed his complaint
in this action.
At issue in the Court's March 28, 2018 Order were two remaining claims that survived
the motion to dismiss phase-a First Amendment retaliation claim and a First Amendment equal
access claim against BPCA only. With respect to the retaliation claim, Plaintiff alleged that the
non-renewal of his lease, which led to his ultimate eviction, was an action taken in retaliation for
articles posted on his blog. Based on the evidence in the record, though, the Court assessed that
"Plaintiffs evidence of retaliation rest[ ed] on little more than speculation," whereas there was
"extensive evidence to supp01i a conclusion that Defendants would not have renewed Plaintiffs
lease even in the absence of Plaintiffs blog." Dkt. No. 433 at 8-9. As for the equal access
claim, Plaintiff alleged that he was unlawfully excluded from a July 2015 meeting of the BPCA
board. As a matter of law, to succeed on this claim against a municipal entity like BPCA,
Plaintiff needed to demonstrate that Mehiel 's actions represented official policy-in other words,
that Mehiel exercised final decision-making authority. Reviewing the record, however, the
Comi concluded that "undisputed evidence" showed that Mehiel's decision to exclude Plaintiff
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from the meeting was subject to review by the BPCA board. Dkt. No. 433 at 15. The Comi
accordingly granted summary judgment in favor of Defendants on both claims.
On July 5, 2018, Plaintiff filed the instant motion. Dkt. No. 466. Plaintiff moves
pursuant to FRCP 60(b)(l), FRCP 60(b)(3), and FRCP 60(b)(6) for relief from the Court's grant

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of summary judgment in favor of Defendants. See id. The BCP A Defendants I filed their
opposition on July 16, 2018. Dkt. No. 472. Plaintiff filed a reply on July 18, 2018.

II.

DISCUSSION
Rule 60(b) of the Federal Rules of Civil Procedure provides that a court may, in its

discretion, relieve a party from a final judgment or order on the following grounds:
(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 burden of proof is on the party seeking relief from judgment, and the
Second Circuit has repeatedly recognized that such relief is "extraordinary, exceptional and
generally not favored." Ognibene v. Parkes, No. 08-01335 (LTM), 2015 WL 12991206, at *2
(S.D.N.Y. June 19, 2015) (describing Second Circuit precedent). Rule 60(b) is not intended to
"provide [the] movant an additional opportunity to make arguments or attempt to win a point
already carefully analyzed and justifiably disposed." In re Bulk Oil (USA) Inc., No. 89-B-13380,
No. 93-cv-4492, 93-cv-4494 (PKL), 2007 WLl 121739, at* 10 (S.D.N.Y. Apr. 11, 2007)
(internal quotation marks omitted). If none of the grounds enumerated in Rules 60(b )(1) through
( 5) are present, relief under Rule 60(b )( 6) is only proper if "the failure to grant relief would work
an extreme hardship on the movant." ISC Holding AG v. Nobel Biocare Fin. AG, 688 F.3d 98,
109 (2d Cir. 2012).
Plaintiff's primary argument in favor of Rule 60(b) relief is that the Supreme Court's
June 18, 2018 opinion in Lozman v. City of Riviera Beach, Fla., 13 8 S. Ct. 1945 (2018), created

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The Landlord Defendants requested an extension of time to oppose the motion and ultimately reached a
settlement agreement with Plaintiff that terminated their involvement in this litigation. See Dkt. Nos. 469, 482-83.

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new law that governs this case. According to Plaintiff, Lozman "establishes that the 'official
policy' question is unnecessary to decide when the 'probable cause' defense is used ... and that a
jury should have decided the 'official policy' question." Dkt. No. 467 at 1. But Plaintiff
misreads the opinion in Lozman, which decided only the limited question of whether the
presence of probable cause for an arrest precludes a retaliatory anest claim. See Lozman, 138 S.
Ct. at 1949. It is therefore inapplicable to Plaintiffs case.
Indeed, the portions of the opinion cited by Plaintiff do not support his argument for
relief. Plaintiff points to the Supreme Court's statement that it assumes -rather than requires
proof, as did this Court -that "the arrest was taken pursuant to an official city policy." Dkt. No.
467 at 3 (quoting Lozman, 13 8 S. Ct. at 1951 ). But this sentence illustrates that the Supreme

Court did not reach the issue of whether there was an official policy. In fact, the Court expressly
affirmed elsewhere that such a showing would nevertheless be required on remand. See Lozman,
13 8 S. Ct. at 1951 ("It is well established that in a § 1983 case a city or other local governmental

entity cannot be subject to liability at all unless the harm was caused in the implementation of
"official municipal policy.") (citation omitted). Second, Plaintiff analogizes probable cause for
an arrest to Mehiel's public safety justification for excluding him from meetings, concluding that
under Lozman, this justification does not defeat a First Amendment claim. See Dkt. No. 467 at 4.
Plaintiffs equal access claim did not survive summary judgment because there was undisputed
evidence that his exclusion from meetings was subject to review and therefore not an official
policy, however, not because the BPCA had a justification for its decision. Dkt. No. 433 at 1415. Third, Plaintiff highlights language from the opinion affirming that the right to petition is

"one of the most precious of the libe11ies safeguarded by the Bill of Rights." Dkt. No. 467 at 5
(quoting Lozman, 138 S. Ct. at 1954). This statement is not "new law," nor does the imp011ance

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of the constitutional right alter the legal standard for a decision on summary judgment. Though

Lozman may have certain factual similarities with Plaintiff's case, the precedent on which the
Comi ruled against Plaintiff on his retaliation and equal access claims are unaltered by the
opinion. As a result, there is no "new law" to justify relief under Rule 60(b)( 6).
With respect to his other arguments, Plaintiff does not point to any facts or law that the
Court overlooked that would alter the conclusions reached in the Court's March 28, 2018
Memorandum Opinion and Order. 2 Instead, Plaintiff relitigates the underlying factual disputes
already briefed and considered by the Court during motion practice in this case. First, Plaintiff
argues that the Court's conclusion that Plaintiff's evidence ofretaliation was simply speculative
is "contradictory to the evidence and to the previous Court's opinion," which found that Plaintiff
had sufficiently alleged retaliation in his complaint. Dkt. No. 467 at 6. Second, Plaintiff
contends that the Court ignored his rebuttal arguments on the issue ofrent payments, id. at 7, but
the Court did consider and address these arguments, though it was ultimately unpersuaded, Dkt.
No. 433 at 9-10. Third, Plaintiff accuses the Comi of considering evidence of an alleged
altercation involving Plaintiff in its analysis of the retaliation claim, when that evidence was
submitted by the BPCA Defendants as relevant to the equal access claim. Id. at 9. Plaintiff does
not, however, raise any new arguments to undermine the credibility of that evidence.
A Rule 60(b) motion is not a substitute for appeal. See Nemaizer v. Baker, 793 F.2d 58,
61 (2d Cir. 1986). Plaintiff has made no argument that warrants disturbing the summary
judgment order in this case.

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Plaintiffs Rule 60(b)(3) argument rests on allegations of fraud in the billing statements submitted by
counsel for the Landlord Defendants. Dkt. No. 467 at JO. Because the alleged misrepresentations concern a motion
for attorneys' fees that was never decided and was ultimately resolved by Plaintiffs settlement agreement with the
Landlord Defendants, no relief would be available even if the Court did credit Plaintiffs allegations.

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III.

CONCLUSION
The Court denies Plaintiffs Rule 60 motion. The Clerk of the Court is respectfully

directed to close this case.
SO ORDERED.
Dated: January _ _ , 2019
New York, New York
United States District Judge

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