Zhang et al v. The City of New York et al

Filing 233

OPINION & ORDER re: 213 MOTION for Reconsideration re; 198 Memorandum & Opinion . filed by Chunman Zhang, Man Zhang. For the reasons set forth above, Plaintiffs' motion for reconsideration is DENIED. The Clerk of Court is directed to terminate the motion docketed at ECF No. 213. (As further set forth in this Order.) (Signed by Judge John F. Keenan on 7/20/2020) (cf)

Case 1:17-cv-05415-JFK-OTW Document 233 Filed 07/20/20 Page 1 of 8
Case 1:09-md-02013-PAC Document 57

Filed 09/30/10 Page 1 of 45

UNITED STATES DISTRICT COURT
USDC SDNY
SOUTHERN DISTRICT OF NEW YORK
DOCUMENT
------------------------------- X
ELECTRONICALLY FILED
MAN ZHANG and CHUNMAN ZHANG,
:
DOC #: _________________
individually, and as
:
DATE FILED: 07/20/2020
ADMINISTRATORS of the estate of :
UNITED STATES DISTRICT COURT
ZHIQUAN DISTRICT OF NEW YORK
:
SOUTHERNZHANG, deceased,
:
-----------------------------------------------------------x
No. 17 Civ. 5415 (JFK)
Plaintiffs,
:
In re FANNIE MAE 2008 SECURITIES
:
08 Civ. 7831 (PAC)
:
LITIGATION
:
09 MD 2013 (PAC)
OPINION & ORDER
-against:
:
:
:
OPINION & ORDER
THE CITY OF NEW YORK, et al.,
:
-----------------------------------------------------------x
:
Defendants.
:
------------------------------- X
HONORABLE PAUL A. CROTTY, United States District Judge:
APPEARANCES
FOR PLAINTIFFS:
BACKGROUND1
David Yan, LAW OFFICES OF DAVID YAN
The early years
FOR DEFENDANTS:of this decade saw a boom in home financing which was fueled, among
Daniel G. May, Joseph E. Shmulewitz, Laura A. Del Vecchio,
other things, by low interest Apfel, lax credit conditions. New lendingC. Kramer,
Gabrielle L. rates and Ryan M. Cleary, Tucker instruments, such as
HEIDELL, PITTONI, MURPHY & BACH, LLP
subprime mortgages (high credit risk loans) and Alt-A mortgages (low-documentation loans)
JOHN F. KEENAN, United States District Judge:
kept the boom going. Borrowers played a role too; they took on unmanageable risks on the
Plaintiffs Man Zhang and Chunman Zhang, individually and as
assumption that the market would continue to rise and that refinancing options would always be
Administrators of the estate of their father, Zhiquan Zhang
available in the future. Lending discipline was lacking in the system. Mortgage originators did
(“Mr. Zhang”), (collectively, “Plaintiffs”) bring a motion for
not hold these high-risk mortgage loans. Rather than carry the rising risk on their books, the
reconsideration of the Court’s September 19, 2019 Opinion &
originators sold their loans into the secondary mortgage market, often as securitized packages
Order (“the September 19, 2019 Order,” ECF No. 198) which denied
known as mortgage-backed securities (“MBSs”). MBS markets grew almost exponentially.
Plaintiffs’ motion for leave to file an amended complaint
But then the housing bubble burst. In 2006, the demand for housing dropped abruptly
against Defendants the City of New York and certain other
and home prices began to fall. In light of the changing housing market, banks modified their
entities and individuals (collectively, “Defendants”) whom
lending practices and became unwilling to refinance home mortgages without refinancing.
Plaintiffs believe are liable for Mr. Zhang’s death while he was
1

a pretrial detainee at Rikers Island prison.

For the reasons

Unless otherwise indicated, all references cited as “(¶ _)” or to the “Complaint” are to the Amended Complaint,
dated June 22, 2009. For purposes of this Motion, all allegations in the Amended Complaint are taken as true.
1

1

Case 1:17-cv-05415-JFK-OTW Document 233 Filed 07/20/20 Page 2 of 8

set forth below, Plaintiffs’ motion for reconsideration is
DENIED.
I.

Background
A.

Factual Allegations

The Court assumes familiarity with the facts of this case
as stated in the September 19, 2019 Order, Man Zhang v. City of
New York, No. 17 Civ. 5415 (JFK), 2019 WL 4513985 (S.D.N.Y.
Sept. 19, 2019) (“Zhang II”), and the Court’s June 28, 2018
Opinion & Order, ECF No. 126, Man Zhang v. City of New York, No.
17 Civ. 5415 (JFK), 2018 WL 3187343 (S.D.N.Y. June 28, 2018)
(“Zhang I”), which granted in part and denied in part
Defendants’ motion to dismiss the Complaint.

To briefly

summarize, following his arrest in April 2015 on unspecified
charges, Mr. Zhang was detained at Rikers Island to await trial.
Over the next year, Mr. Zhang—who had a history of hypertension
and coronary disease—frequently complained of pain in his chest,
left arm, and lower back.

Tragically, on April 18, 2016, Mr.

Zhang died while still in pretrial custody of what an autopsy
later determined was hypertensive and atherosclerotic
cardiovascular disease.
B.

Procedural History

On July 17, 2017, Plaintiffs initiated this action against
Defendants by filing a complaint that asserted causes of action
for (1) violations of the Fifth, Eighth, and Fourteenth
2

Case 1:17-cv-05415-JFK-OTW Document 233 Filed 07/20/20 Page 3 of 8

Amendments to the United States Constitution; (2) wrongful
death; (3) deprivation of Mr. Zhang’s society, services, and
parental guidance; (4) discrimination; (5) negligence and
malpractice; (6) negligent supervision; (7) intentional and
negligent infliction of emotional distress; and (8) fraudulent
concealment.

(ECF No. 1.)

On June 28, 2018, the Court dismissed all of Plaintiffs’
claims except for their wrongful death, negligence, and
malpractice claims against all defendants, and their Fourteenth
Amendment due process claim against the City of New York (“the
City”), Corizon Health, Inc. (“Corizon”), and certain of the
City’s and Corizon’s departments, employees, and agents. See
Zhang I, 2018 WL 3187343, at *13.
On October 8, 2018, Plaintiffs filed a motion for leave to
amend their complaint to reinstate (1) their Fourteenth
Amendment due process claim against certain New York City
Correction Officers (“NYCCO Does 1–10”) and New York City Mayor
Bill de Blasio, then-New York City Department of Correction
Commissioner Joseph Ponte, then-New York City Health and
Hospitals Corporation (“NYCHHC”) President Ram Raju, NYCHHC
Senior Vice President Patsy Yang, and Corizon Chief Executive
Officer Karey Witty (collectively, “the Supervisory
Defendants”); and (2) their negligent supervision and fraudulent
concealment claims against all defendants.
3

(ECF No. 171.)

Case 1:17-cv-05415-JFK-OTW Document 233 Filed 07/20/20 Page 4 of 8

On September 19, 2019, the Court denied Plaintiffs’ motion
for leave to amend as futile. See Zhang II, 2019 WL 4513985, at
*6.

Regarding Plaintiffs’ Fourteenth Amendment claim against

NYCCO Does 1–10, the Court ruled that Plaintiffs’ proposed
amendments again failed to satisfy the “mens rea prong” of a
cause of action for deliberate indifference. Id. at *2–3.
Regarding the Supervisory Defendants, the Court ruled that
Plaintiffs again failed to adequately allege each individual
defendants’ personal involvement in a violation of Mr. Zhang’s
constitutional rights, as well as the proximate cause and
intentional discrimination elements of a Fourteenth Amendment
due process claim. Id. at *3–5.

Regarding Plaintiffs’ negligent

supervision claim, the Court ruled that Plaintiffs’ proposed
amendments failed to adequately allege that Defendants were
aware of certain complaints before Mr. Zhang’s death, nor that
the complaints related to any action on the part of employees
who had contact with Mr. Zhang or to the types of behavior and
deficiencies that allegedly led to his death. Id. at *5.
Finally, the Court rejected Plaintiffs’ proposed amended
fraudulent concealment claim because it again failed to
plausibly allege justifiable reliance. Id. at *6.
On October 17, 2019, Plaintiffs moved for reconsideration
of the September 19, 2019 Order.

(ECF No. 213.)

4

Case 1:17-cv-05415-JFK-OTW Document 233 Filed 07/20/20 Page 5 of 8

II.

Discussion

“Reconsideration of a previous order by the court is an
‘extraordinary remedy to be employed sparingly in the interests
of finality and conservation of scarce judicial resources.’” In
re Beacon Assocs. Litig., 818 F. Supp. 2d 697, 701 (S.D.N.Y.
2011) (quoting In re Health Mgmt. Sys. Inc. Sec. Litig., 113 F.
Supp. 2d 613, 614 (S.D.N.Y. 2000)).

“The Second Circuit has

made clear that motions for reconsideration are to be denied
except where ‘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.” Stagg P.C. v. U.S. Dep’t of State, No. 15
Civ. 8468 (KPF), 2019 WL 1863418, at *1 (S.D.N.Y. Apr. 25, 2019)
(quoting Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir.
1995)).

“Compelling reasons for granting a motion for

reconsideration are limited to ‘an intervening change of
controlling law, the availability of new evidence, or the need
to correct a clear error or prevent manifest injustice.’” Id.
(quoting Virgin Atl. Airways, Ltd. v. Nat’l Mediation Bd., 956
F.2d 1245, 1255 (2d Cir. 1992)).

A motion for 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.’” Analytical
Surveys, Inc. v. Tonga Partners, L.P., 684 F.3d 36, 52 (2d Cir.
5

Case 1:17-cv-05415-JFK-OTW Document 233 Filed 07/20/20 Page 6 of 8

2012) (quoting Sequa Corp. v. GBJ Corp., 156 F.3d 136, 144 (2d
Cir. 1998)); see also Stone v. Theatrical Inv. Corp., 80 F.
Supp. 3d 505, 506 (S.D.N.Y. 2015) (observing that a motion for
reconsideration is “neither an occasion for repeating old
arguments previously rejected nor an opportunity for making new
arguments that could have been previously advanced”).
Plaintiffs’ motion for reconsideration is without merit.
First, Plaintiffs do not point to any intervening change of
controlling law or any controlling decision or data that the
Court overlooked.

Rather, Plaintiffs casually assert that the

September 19, 2019 Order will inflict manifest injustice on
them, and they rehash their prior argument that the sufficiency
of their claims is a question to be resolved by a jury, not the
Court. (Compare Pls.’ Reply Mem. of Law in Further Supp. Mot.
for Leave to Amend Compl. at 3, 4, ECF No. 178, with Pls.’ Mem.
in Supp. Mot. for Reconsideration at 4, 5, ECF No. 214.).
Court is not persuaded.

The

As the Second Circuit recently

reiterated, “where the well-pleaded facts do not permit the
court to infer more than the mere possibility of misconduct, the
complaint has alleged—but it has not ‘show[n]’—‘that the pleader
is entitled to relief.’” Lynch v. City of New York, 952 F.3d 67,
74 (2d Cir. 2020) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 679
(2009)) (alterations in original).

“To present a plausible

claim, the ‘pleading must contain something more . . . than . .
6

Case 1:17-cv-05415-JFK-OTW Document 233 Filed 07/20/20 Page 7 of 8

. a statement of facts that merely creates a suspicion [of] a
legally cognizable right of action.’” Id. (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007)) (alterations in
original).
Second, Plaintiffs’ assertion that the September 19, 2019
Order results in manifest injustice is not credible.

Plaintiffs

have not identified any cases, well-pleaded allegations, or
other data that the Court overlooked in its prior judgment, nor
any need to correct a clear error.

Indeed, Plaintiffs’

troubling Fourteenth Amendment claims against the City of New
York, New York City Department of Correction, Rikers Island
prison, NYCHHC, and Corizon all survive, as well as their
wrongful death, negligence, and malpractice claims against all
defendants, including NYCCO Does 1–10 and the Supervisory
Defendants.

Accordingly, the Court shall not reconsider its

finding that Plaintiffs’ proposed amended complaint would not
survive a comparable motion to dismiss brought by Defendants,
and the Court will not reinstate Plaintiffs’ deficient claims,
each of which arise out of the same allegedly tortious conduct
as their surviving claims. Accord Shrader, 70 F.3d at 257 (“[A]
motion to reconsider should not be granted where the moving
party seeks solely to relitigate an issue already decided.”).

7

Case 1:17-cv-05415-JFK-OTW Document 233 Filed 07/20/20 Page 8 of 8

III.

Conclusion

For the reasons set forth above, Plaintiffs’ motion for
reconsideration is DENIED.
The Clerk of Court is directed to terminate the motion
docketed at ECF No. 213.
SO ORDERED.
Dated:

New York, New York
July 20, 2020

8