Lurch, Jr. v. NYCHHC et al

Filing 49

ORDER denying 47 Motion for Reconsideration. For the reasons set forth above, Plaintiffs motion for reconsideration is DENIED. The Clerk of Court is respectfully directed to terminate ECF No. 47.SO ORDERED. (Signed by Judge Andrew L. Carter, Jr on 9/23/24) (yv)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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ROBERT D. LURCH, JR.,
:
Plaintiff,
:
:
-against:
:
NEW YORK CITY HEALTH AND HOSPITALS
:
CORPORATION, THE CITY OF NEW YORK,
:
TARA ASHER, PEARLINE THOMPSON, GEORGE :
GAINES, OVUNDUH OKENE, IDA BROWN, MIN :
KANG, CHRISTOPHER TATEM, ALEXANDER
:
ARONOV, and AV TROPE,
:
Defendants.
:
:
--------------------------------------------------------------------- :
x
ANDREW L. CARTER, JR., District Judge:

21-CV-01567 (ALC)
ORDER

Plaintiff Robert Lurch, proceeding pro se, submitted a motion for reconsideration (ECF
No. 47) of the Court’s September 29, 2023 Opinion & Order (ECF No. 46) that denied his
previous motion for reconsideration of the Court’s January 17, 2023 Opinion & Order (ECF No.
40) that granted the Defendants’ motion to dismiss. For the reasons set forth below, the motion
for reconsideration is DENIED.
BACKGROUND
The Court assumes the parties’ familiarity with the facts and procedural background of
this case, which are set forth more fully in the Order granting Defendants’ motion to dismiss.
ECF No. 40. Plaintiff’s motion for reconsideration is premised on his belief that the Court erred
in denying his previous motion for reconsideration (ECF No. 46).
LEGAL STANDARD
To succeed on a motion for reconsideration under Rule 59(e), the movant must show “an
intervening change of controlling law, the availability of new evidence, or the need to correct a

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clear error or prevent manifest injustice.” Doe v. N.Y.C. Dep't of Soc. Servs., 709 F.2d 782, 789
(2d Cir. 1983) (quotation marks omitted). “It is well-settled that Rule 59 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’....” Sequa Corp. v. GBJ Corp., 156 F.3d 136, 144
(2d Cir.1998). Indeed, the standard for granting a Rule 59(e) motion “is strict, and
reconsideration will generally be denied.” Ursa Minor Ltd. v. Aon Financial Products, Inc., 2000
WL 1279783 at *1 (S.D.N.Y. Sept.8, 2000) (citation omitted); see also Range Road Music, Inc.
v. Music Sales Corp., 90 F.Supp.2d 390, 391–92 (S.D.N.Y.2000).
Under Local Rule 6.3, the moving party 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. See Lichtenberg
v. Besicorp Group Inc., 28 Fed. Appx. 73, 2002 WL 109483, *1 (2d Cir. Jan.25, 2002); SEC v.
Ashbury Capital Partners, L.P., No. 00 Civ. 7898, 2001 WL 604044, *1 (S.D.N.Y. May 31,
2001) (citing AT & T Corp. v. Comty. Network Servs., Inc., No. 00 Civ. 316, 2000 WL 1174992,
at *1 (S.D.N.Y. Aug.18, 2000) and Local Rule 6.3). Failure to “demonstrate that the Court
overlooked controlling law or factual matters that had been previously put before it” is a clear
denial of a motion for reconsideration. Abdullah-Sadiq v. Behringer, No. 17-CV-0270 (TPG),
2017 WL 5508477, at *1 (S.D.N.Y. Mar. 17, 2017). For pro se litigants, “[t]he Court must also
liberally construe submissions of pro se litigants and interpret them “to raise the strongest
arguments that they suggest.” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir.
2006) (per curiam). This Court has construed the pro se litigants’ arguments with these
considerations in mind.

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DISCUSSION
This Court finds that Plaintiff Lurch has not shown sufficient material facts or law that
would warrant overturning this Court’s September 29, 2023 Order. Here, the Court properly
found that the Plaintiff failed to plead facts that supported the objective and subjective prong
required for a cognizable confinement claim. With respect to the objective prong, the Court held
that the Plaintiff experiencing flu-like symptoms such as headaches, sore throat, and other flulike symptoms do not merit constitutional protection. See, e.g., Griffin v. Capra, No. 18 Civ.
10405, 2021 WL 1226428, at *5 (S.D.N.Y. Mar. 31, 2021); Smith v. Montefiore Med. Ctr.Health Servs. Div., 22 F. Supp. 2d. 275, 281 (S.D.N.Y. 1998) (same). Plaintiff alleges in the
instant motion that his Amended Complaint alleged “more severe symptoms . . .such as muscle
aches, extreme fatigue, hot sweats and chills with the shakes.” ECF No. 47 at 3. This is still
insufficient to warrant a finding that that “the conditions of his confinement violate
contemporary standards of decency.” Phelps v. Kapnolas, 308 F.3d 180, 185 (2d Cir. 2002).
With respect to the subjective prong, the Plaintiff also failed to present evidence that
suggests that Defendants acted intentionally to cause the unsafe conditions at Rikers. The
Plaintiff argues that the Court’s decision deeming the Plaintiff’s confinement claim insufficient
was erroneous due to evidence demonstrating that the Defendants intentionally created a flu
epidemic. He also argues that the Court misapplied Reid v. City of N.Y., 2022 U.S. Dist. LEXIS
72195 (S.D.N.Y. Apr. 20, 2022) when denying its previous motion for reconsideration because
unlike the instant case, the defendants in Reid did not intentionally create the unsafe conditions
that caused the illness. ECF No. 47 at 1-2. This Court disagrees. The Plaintiff instead concedes
that the Defendants in Reid “treated the plaintiff in a timely manner”, which is the case here; the
Court properly found that Rikers worked to examine and treat his flu-like symptoms.

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Indeed, the Court carefully considered the parties’ arguments on the Plaintiff’s motion
for reconsideration. The Plaintiff does not cite any new facts or applicable law that this Court
overlooked that would have altered the Court’s decision. A moving party is not permitted to use
a motion for reconsideration as a means to “relitigate[e] old issues, present[] the case under new
theories, secur[e] 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) (internal
quotation marks and citation omitted). The instant motion is the Plaintiff’s attempt to take
another bite of the apple by re-litigating issues that have been properly reviewed by this Court
twice before. Therefore, Plaintiff’s motion for reconsideration is denied.

CONCLUSION
For the reasons set forth above, Plaintiff’s motion for reconsideration is DENIED. The
Clerk of Court is respectfully directed to terminate ECF No. 47.

SO ORDERED.
Dated:

September 23, 2024
New York, New York

__________________________________
ANDREW L. CARTER, JR.
United States District Judge

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