Abraham v. Leigh et al

Filing 83

ORDER denying 67 Motion for Reconsideration; denying 69 Motion for Reconsideration. For the foregoing reasons, Defendants Honig's and Wasserman'smotions for reconsideration are DENIED. The Clerk of Court is directed toterminate the motions at Docket Entries 67 and 69. The Court will considerseparately the proposed Case Management Plan submitted by the parties.SO ORDERED. (Signed by Judge Katherine Polk Failla on 7/30/2018) (rro)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
ROBYN ABRAHAM,
:
:
Plaintiff,
:
:
v.
:
:
ABBY LEIGH as Executrix of the ESTATE :
OF MITCH LEIGH, MARTHA WASSERMAN :
:
as Executrix of the ESTATE OF DALE
:
WASSERMAN, and ALAN HONIG,
:
Defendants. :
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USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #: _________________
DATE FILED: ______________
July 30, 2018

17 Civ. 5429 (KPF)
ORDER

KATHERINE POLK FAILLA, District Judge:
The Court is in receipt of Defendant Honig’s and Defendant Wasserman’s
motions for reconsideration (Dkt. #67-70); Plaintiff’s opposition thereto (Dkt.
#77); and Honig’s and Wasserman’s reply papers (Dkt. #80). The Court has
carefully reviewed the parties’ submissions and is not persuaded that it
overlooked controlling legal authority or factual data that would change its
decision. These motions are, accordingly, denied.
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.” 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.” Virgin Atl. Airways, Ltd. v. Nat’l Mediation Bd., 956 F.2d
1245, 1255 (2d Cir. 1992) (internal quotation marks and citation omitted). A
motion for reconsideration is, of course, “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. 2012) (quoting Sequa Corp.
v. GBJ Corp., 156 F.3d 136, 144 (2d Cir. 1998)).
Honig’s principal basis for reconsideration is that the Court did not adopt
his argument — raised in his moving brief (Dkt. #44 at 20-22) — that Plaintiff’s
fraudulent inducement claim was rendered implausible by certain admissions
in Plaintiff’s initial pleading. (See Dkt. #70 (“Honig Br.”) at 4-7). While the
Court did not discuss this particular argument in its oral decision, it
considered the argument in its review of the parties’ submissions and found it
unpersuasive. The Court acknowledged in its ruling that the parties contested
the fact of Honig’s power of attorney (Dkt. #78 at 27:24-28:2), but found that
Plaintiff’s claim survived nonetheless.
In brief, Honig seizes on a discrepancy between Plaintiff’s Complaint and
Amended Complaint: Plaintiff alleged in the initial Complaint that Mitch Leigh
told her he had a power of attorney over Hellen Darion’s vote and Joseph
Darion’s business rights, that the power of attorney dated back to 1991, that
the power of attorney was signed by Hellen Darion, and that Honig confirmed
he had the original at his office. (Honig Br. 4 (citing Dkt. #1 at ¶¶ 24, 38-39)).
Subsequently, Plaintiff alleged in the Amended Complaint that Mitch Leigh told

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her he held a power of attorney over Hellen Darion’s voting and business rights
and that Honig confirmed he had the original in his office; Plaintiff removed the
allegation that the power of attorney was dated in 1991, a time at which Ms.
Darion had no voting rights in Man of La Mancha. (Dkt. # 41 at ¶¶ 38-39;
Honig Br. 4-5). To be sure, the discrepancy in these allegations casts some
doubt on Plaintiff’s claim, but the Court did not find that it rendered the claim
legally insufficient. The gravamen of Plaintiff’s fraudulent inducement claim is
that she was told that Mitch Leigh retained a power of attorney over the Darion
vote — as the Court noted in its decision, it remains to be seen whether any
such power of attorney existed. Honig’s point about the discrepancy is welltaken, but at this early stage of the litigation the Court finds that Plaintiff’s
allegations are sufficiently pleaded to withstand a motion to dismiss.
Fatal to Wasserman’s motion for reconsideration, by contrast, is her
failure to file a brief advancing any arguments on her own behalf in support of
her motion to dismiss. Moreover, the Court did not construe Plaintiff’s
promissory estoppel claim to be as narrow as Wasserman now defines it, and
agrees with Plaintiff that it is, at this stage of the litigation, bound to construe
Plaintiff’s pleadings liberally and take all of her well-pleaded allegations to be
true. (See Dkt. #77 (“Pl. Opp.”) at 5-6 (citing Chambers v. Time Warner, Inc.,
282 F.3d 147, 152 (2d Cir. 2002)). Wasserman argues now that her onesentence brief (see Dkt. #53) incorporated by reference the arguments made by
other Defendants, and that those arguments should have been construed to
merit dismissal of Plaintiff’s claims against her. (Dkt. #80 (“Def. Reply”) at 3-4).

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However, the Court did not and does not find the arguments advanced by other
parties to be persuasive as to Wasserman. (See Dkt. #44 at 22-24). And in any
event, Wasserman was not pro se — she was represented by counsel who made
a strategic decision not to file a memorandum of law in support of her motion.
The Court was thus not bound to construe liberally submissions made on
behalf of other parties in order to generate arguments that Wasserman’s
counsel strategically elected not to make.
For the foregoing reasons, Defendants Honig’s and Wasserman’s
motions for reconsideration are DENIED. The Clerk of Court is directed to
terminate the motions at Docket Entries 67 and 69. The Court will consider
separately the proposed Case Management Plan submitted by the parties.
SO ORDERED.
Dated:

July 30, 2018
New York, New York

__________________________________
KATHERINE POLK FAILLA
United States District Judge

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