Zaret v. Bonsey et al

Filing 128

ORDER denying 122 Motion for Reconsideration re 121 Order on Motion to Amend/Correct, Order on Motion for Leave to File Document, Order on Motion to Strike, Order on Motion to Dismiss filed by Peter H. Zaret. For these reasons, Zaret's motion is DENIED. The Clerk of Court is directed to terminate the motion at ECF No. 122. SO ORDERED. (Signed by Judge Analisa Torres on 11/14/2023) (vfr)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
Peter H. Zaret dba Peter Zaret & Sons Violins,
Inc.,
-against-

Plaintiff,

David Bonsey, D. Bonsey, Inc. aka New York
Violin Consulting Inc., Florian Leonhard, Florian
Leonhard Fine Violins, Inc., Peter Horner,
Brompton’s Auctioneers Limited, Charles Beare
OBE, Beare Violins Limited, Joe W. Robson,

USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #: _________________
DATE FILED: 11/14/2023 __

22 Civ. 7109 (AT)
ORDER

Defendants.
ANALISA TORRES, District Judge:
On August 19, 2022, Plaintiff, Peter H. Zaret d/b/a Peter Zaret & Sons Violins, Inc.
(“Zaret”), filed this product disparagement action against Defendants David Bonsey, D. Bonsey,
Inc. a/k/a New York Violin Consulting Inc., Florian Leonhard, Florian Leonhard Fine Violins,
Inc., Peter Horner, Brompton’s Auctioneers Limited, Charles Beare OBE, Beare Violins
Limited, and Joe W. Robson. On September 28, 2023, the Court dismissed Zaret’s product
disparagement claim against all Defendants (the “Order”). Zaret v. Bonsey, No. 22 Civ. 7109,
2023 WL 6317956 (S.D.N.Y. Sept. 28, 2023). Plaintiff now moves for reconsideration of that
decision pursuant to Local Civil Rule 6.3. Pl. Mot. at 1, ECF No. 122. For the reasons stated
below, the motion is DENIED.
I.

Legal Standard
Plaintiff brings his motion for reconsideration under Local Civil Rule 6.3. Rule 6.3

provides that a “notice of motion for reconsideration or reargument of a court order determining
a motion . . . shall be served with . . . a memorandum setting forth concisely the matters or
controlling decisions which counsel believes the Court has overlooked.” Thus, “to be entitled to
reargument and reconsideration, the movant must demonstrate that the Court overlooked

controlling decisions or factual matters that were put before it on the underlying motion.”
Dietrich v. Bauer, 198 F.R.D. 397, 399 (S.D.N.Y. 2001). The movant must also demonstrate
that the controlling law or factual matters “might reasonably be expected to alter the court’s
decision.” Montanile v. Nat’l Broad. Co., 216 F. Supp. 2d 341, 342 (S.D.N.Y. 2002). Rule 6.3
is to be “narrowly construed and strictly applied so as to avoid repetitive arguments on issues
that have been considered fully by the Court.” Dietrich, 198 F.R.D. at 399. And motions for
reconsideration are “committed to the sound discretion of the district court.” Immigrant Def.
Project v. U.S. Immigr. & Customs Enf’t, No. 14 Civ. 6117, 2017 WL 2126839, at *1 (S.D.N.Y.
May 16, 2017).
II.

Discussion
Zaret asks the Court to reconsider the Order on the grounds that the Court “overlooked

Plaintiff’s claim for mitigation of loss damages of $13,339.70” and never ruled on whether “this
specie of special damage[s] was insufficiently pled, non-specific or lacking pecuniary value.” Pl.
Mot. at 2. Zaret pleaded these damages in Paragraph 116 of the Second Amended Complaint
(“SAC”):
Plaintiff incurred significant mitigation-of-loss expenses, including but not limited to,
airfare, ground transportation and lodging approximating $12,677.54, transporting the
instrument to Beare Violins Ltd. in the UK and retrieving it (July-August 2022), and at
Beare’s suggestion, has paid for John Topham’s involvement, report (July 2022) $662.16.
ECF No. 60 ¶ 116.
First, a motion for reconsideration “will generally be denied unless the moving party can
point to controlling decisions or data . . . that might reasonably be expected to alter the
conclusion reached by the court.” Shrader, 70 F.3d at 257; see also R.F.M.A.S., Inc. v. Mimi So,
640 F. Supp. 2d 506, 509 (S.D.N.Y. 2009) (applying Shrader to a motion for reconsideration
under Local Civil Rule 6.3). Plaintiff neither offers new facts nor cites controlling caselaw that
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would alter the disposition of the case. In support of reconsideration, Zaret again cites Charles
Atlas, Ltd. v. Time-Life Books, Inc., 570 F. Supp. 150 (S.D.N.Y. 1983). See Pl. Mot. at 2–3; Pl.
Reply at 6–7, ECF. No. 127. But as the Court explained in its original Order, Atlas is at best a
“narrow exception” to New York law, “cabined by [its] facts” and distinguishable from the
instant case. Order at 8–9 & n.7 (citation omitted). Plaintiff’s reconsideration submissions do
not persuade the Court otherwise.
Second, Plaintiff admits that he incurred the alleged mitigation damages in 2022 “[i]n an
effort to resolve this matter without litigation.” Pl. Reply at 7; see also SAC ¶ 94 n.11.
Expenses incurred in connection with a settlement are not damages and, therefore, cannot be
recovered. See Schueler v. Roman Asphalt Corp., 827 F. Supp. 247, 257 (S.D.N.Y. 1993). Even
under Atlas, there is no basis for compensation for such expenses. The Atlas court explicitly
declined to rule on whether legal expenses could be considered as part of special damages, see
570 F. Supp. at 156–57, and Plaintiff’s mitigation damages, which included expenses incurred in
“serv[ing] a draft complaint on defendants,” SAC ¶ 94 n.11, are more akin to legal fees and costs
than anything else.
Lastly, “[t]here can be no duty to mitigate damages until the injury causing those
damages actually occurs.” Betances v. Fischer, No. 11-CV-3200, 2023 WL 2609133, at *3
(S.D.N.Y. Mar. 23, 2023) (quoting Miller v. Lovett, 879 F.2d 1066, 1071 (2d Cir. 1989)); see
Ridgeview Partners, LLC v. Entwistle, 354 F. Supp. 2d 395, 403 (S.D.N.Y. 2005). Plaintiff is
not entitled to the costs incurred in mitigating an alleged harm when no such harm has occurred.
As the Court made no finding of special damages, Order at 6–9, there is no harm requiring
mitigation. Zaret, therefore, cannot claim a right to $13,339.70, the alleged cost of mitigation.

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For these reasons, Zaret’s motion is DENIED. The Clerk of Court is directed to
terminate the motion at ECF No. 122.

SO ORDERED.
Dated: November 14, 2023
New York, New York

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