Bloomfield Investment Resources Corp v. Daniloff

Filing 66

DECISION AND ORDER: Accordingly, for the reasons stated above, it is hereby ORDERED that the motion so deemed by the Court as filed by defendant Elliott Daniloff ("Daniloff") for reconsideration or leave to amend (Dkt. No. 55) is DENIED. So Ordered. (Signed by Judge Victor Marrero on 6/7/2021) (js)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-----------------------------------X
June 7, 2021
BLOOMFIELD INVESTMENT RESOURCES
:
CORP.,
:
Plaintiff,
:
17 Civ. 4181 (VM)
:
- against :
DECISION AND ORDER
:
ELLIOTT DANILOFF,
:
:
Defendant.
:
-----------------------------------X
VICTOR MARRERO, United States District Judge.
Plaintiff

Bloomfield

Investment

Resources

Corp.

(“Bloomfield” or “Plaintiff”) brought the instant action
against

Defendant

“Defendant”)

for

Elliott

fraud,

Daniloff

breach

of

(“Daniloff”

contract,

or

promissory

estoppel, and unjust enrichment. (See First Amended Complaint
(“FAC”), Dkt. No. 51.) Daniloff asserted counterclaims for
breach of contract, promissory estoppel, fraud, and failure
to indemnify. (See Answer to Amended Complaint (“AAC”), Dkt.
No. 52.) On April 26, 2021, the Court granted Bloomfield’s
motion to dismiss Daniloff’s counterclaims. (See “April 26
Order,” Dkt. No. 54.)
Now before the Court is a letter, dated May 10, 2021,
submitted by Daniloff seeking reconsideration of the April 26
Order

or,

in

the

alternative,

leave

to

amend

his

counterclaims. (See “May 10 Letter,” Dkt. No. 55.) The Court
also has before it a letter from Bloomfield, dated May 12,

1

2021,

opposing

reconsideration

and

leave

to

amend

(see

“Opposition,” Dkt. No. 61), and a reply letter, dated May 14,
2021, from Daniloff (see “May 14 Reply Letter,” Dkt. No. 65).
The

Court

construes

reconsideration

Daniloff’s

pursuant

to

letters
Local

as

a

Rule

motion
6.3

for
(the

“Reconsideration Motion”).1 For the reasons set forth below,
the

Reconsideration

Motion,

as

well

as

the

alternative

request for leave to amend, is DENIED.
I.
A.

LEGAL STANDARD

RECONSIDERATION
Motions for reconsideration are governed by Local Rule

6.3, which is “intended 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.’” SEC v. Ashbury Capital Partners, L.P.,
No. 00 Civ. 7898, 2001 WL 604044, at *1 (S.D.N.Y. May 31,
2001) (quoting Carolco Pictures, Inc. v. Sirota, 700 F. Supp.
169,

170

(S.D.N.Y.

1988)).

When

assessing

a

motion

for

reconsideration, a district court must “narrowly construe and
strictly apply” Local Rule 6.3 to “avoid duplicative rulings
on previously considered issues” and to prevent the rule from

1

See Kapitalforeningen Lægernes Invest. v. United Techs. Corp.,
779 F. App’x 69, 70 (2d Cir. 2019) (affirming the district court ruling
deeming an exchange of letters as a motion to dismiss).

2

being used to advance theories not previously argued or as “a
substitute for appealing a final judgment.” Montanile v.
Nat’l Broad. Co., 216 F. Supp. 2d 341, 342 (S.D.N.Y. 2002).
Reconsideration
employed

sparingly

is

“an

extraordinary

in

the

interests

remedy

of

to

finality

be
and

conservation of scarce judicial resources.” In re Health
Mgmt. Sys., Inc. Sec. Litig., 113 F. Supp. 2d 613, 614
(S.D.N.Y. 2000). Accordingly, the Second Circuit has held
that the threshold for granting a motion to reconsider is
“high,” and such motions are generally 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.” Nakshin v. Holder, 360 F. App’x 192, 193 (2d Cir.
2010); see also Shrader v. CSX Transp., Inc., 70 F.3d 255,
257 (2d Cir. 1995).
“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); accord
Kolel Beth Yechiel Mechil of Tartikov, Inc. v. YLL Irrevocable
Tr.,

729

F.3d

99,

104

(2d

Cir.

2013).

“[A]

motion

to

reconsider should not be granted where the moving party seeks

3

solely to relitigate an issue already decided.” Shrader, 70
F.3d at 257; see also Analytical Surveys, Inc. v. Tonga
Partners, L.P., 684 F.3d 36, 52 (2d Cir. 2012) (noting that
reconsideration

“is

not

a

vehicle

for

relitigating

old

issues, presenting the case under new theories, securing a
rehearing on the merits, or otherwise taking a second bite at
the apple” (internal quotation marks omitted)).
The

decision

to

grant

or

deny

a

motion

for

reconsideration rests within “the sound discretion of the
district court.” Aczel v. Labonia, 584 F.3d 52, 61 (2d Cir.
2009) (citations omitted).
B.

LEAVE TO AMEND
“Leave to amend may be denied for good reason, including

futility, bad faith, undue delay, or undue prejudice to the
opposing party.” Kim v. Kimm, 884 F.3d 98, 105 (2d Cir. 2018)
(internal quotation marks and citation omitted).
II.

DISCUSSION

The Court finds that the Reconsideration Motion here
does not meet this exacting standard and therefore denies
reconsideration. The Court also denies Daniloff leave to
amend, as any further amendment will cause significant delay.
A.

RECONSIDERATION
Daniloff seeks reconsideration of the Court’s dismissal

of his counterclaims for breach of contract and fraud. But in

4

doing so, Daniloff seeks to either relitigate issues already
considered or improperly advance new arguments through the
Reconsideration Motion.
Turning first to Daniloff’s argument with respect to the
Court’s breach-of-contract analysis, Daniloff has failed to
raise

any

overlooked

“controlling

decisions

or

factual

matters that were put before [the Court] on the underlying
motion” and “merely offers substantially the same arguments”
he offered on the underlying motion. See Mikol v. Barnhart,
554 F. Supp. 2d 498, 500 (S.D.N.Y. 2008). Daniloff argues
that “the Court overlooked and contravened its prior analysis
in the 2018 Order sustaining Bloomfield’s breach of contract
claim.” (May 10 Letter at 2.) But Daniloff already made this
argument when he invoked “the very same analysis the Court
applied in allowing Bloomfield’s parallel breach of contract
claim to proceed against Mr. Daniloff” in his opposition to
Bloomfield’s motion to dismiss. (See Dkt. No. 53-2, at 2.)
The Court was thus aware of the argument and did not overlook
it. Moreover, the agreement at issue in Bloomfield’s breachof-contract claim and the agreement at issue in Daniloff’s
claim are not identical, and the Court’s previous analysis of
Bloomfield’s claim is not controlling law.
Daniloff’s argument with respect to dismissal of his
fraud claim fares no better. Daniloff argues that his claim,

5

even if untimely under the two-year discovery rule, should
have

been

deemed

timely

under

the

six-year

statute

of

limitations. But this argument “represents a new legal theory
improperly

raised

for

the

first

time

on

motion

for

reconsideration.” See Peterson v. Home Depot U.S.A., Inc.,
No. 11 Civ. 5747, 2014 WL 1355622, at *2 (S.D.N.Y. Apr. 4,
2014). “Except where a movant is relying on new facts that
could

not

promulgated

have
law,

been

previously

additional

facts

discovered
or

new

or

legal

newly

theories

cannot be asserted by way of a motion for reconsideration.”
Albury v. J.P. Morgan Chase, No. 03 Civ. 2007, 2005 WL
1653939,

at

*3

(S.D.N.Y.

July

14,

2005).

Daniloff’s

opposition to Bloomfield’s motion to dismiss “failed to argue
[timeliness under a six-year statute of limitations], and it
was not incumbent on the Court to raise that argument sua
sponte in order to make [Daniloff’s] case for him.” See
Peterson, 2014 WL 1355622, at *2. The Court will accordingly
not reconsider the April 26 Order on this ground either.
B.

LEAVE TO AMEND
The Court concludes that at this late stage, allowing

Daniloff to amend the pleadings would cause a significant
delay in the litigation. This matter has been pending for a
number of years, and discovery is near complete. (See Dkt.
No. 48.) Meanwhile, Daniloff knew all of the information

6

constituting

his

proposed

amendments

at

the

time

the

Complaint and AAC were first filed, yet he has not sought to
include this information until now. Furthermore, as a result
of the exchange of premotion letters, Daniloff was long aware
of

the

deficiencies

at

issue

and

failed

to

cure

the

deficiencies earlier. Consequently, the Court will deny leave
to amend. See Hernandez v. BMNY Contracting Corp., No. 17
Civ. 9375, 2019 WL 418498, at *2 (S.D.N.Y. Jan. 17, 2019)
(denying leave to amend as untimely when the plaintiff “knew
or should have known of” the relevant facts at the time the
original pleading was filed but did not seek to amend the
pleading until more than a year later (citing In re Commodity
Exch. Inc. Silver Futures & Options Trading Litig., No. 11
Md. 2213, 2013 WL 1100770, at *6 (S.D.N.Y. Mar. 18, 2013));
Suro v. United States, 107 F. Supp. 2d 206, 210 (E.D.N.Y.
2000) (denying leave to amend when the litigation had been
pending for years, discovery was nearly complete, and the
plaintiff had notice of the matter which required amendment
long before leave to amend was sought).
III. ORDER
Accordingly, for the reasons stated above, it is hereby
ORDERED that the motion so deemed by the Court as filed
by

defendant

Elliott

Daniloff

(“Daniloff”)

for

reconsideration or leave to amend (Dkt. No. 55) is DENIED.

7

SO ORDERED.
Dated:

New York, New York
7 June 2021

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