Pascazi v. Rivera

Filing 32

OPINION & ORDER re: 27 MOTION to Alter Judgment re: 24 Clerk's Judgment, dated February 26, 2015, MOTION to Amend/Correct 24 Clerk's Judgment, dated February 26, 2015 filed by Michael S. Pascazi. For the foregoing reasons, Plaintiff's motion for reconsideration is DENIED. The Clerk of the Court is respectfully requested to terminate the motion at Docket No. 27. SO ORDERED. (Signed by Judge Nelson Stephen Roman on 10/1/2015) (mml)

UNITED STA TES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

-------------------------------------------------------------- )(
MICHAELS. PASCAZI,
Plaintiff,
13-cv-9029 (NSR)
-againstOPINION & ORDER
PETER M. RIVERA in his official capacity as
NEW YORK STATE COMMISSIONER OF
LABOR,
Defendant.

-------------------------------------------------------------- )(
NELSON S. ROMAN, United States District Judge
Attorney Michael S. Pascazi ("Plaintiff') moves for reconsideration and reargument of
this Court's Opinion and Order of February 6, 2015 (the "Order"; ECF No. 26), which granted
Defendant Peter M. Rivera, New York State Commissioner of Labor's (the "Commissioner")
motion to dismiss on the grounds of res judicata and failure to state a claim upon which relief
may be granted. In its motion for reconsideration and/or reargument, Plaintiff asse1ts the Court
overlooked factual matters and controlling case law which might reasonably be expected to have
led to a different ruling had they been considered. The Court assumes familiarity with the facts
of the case and the substance of the Motion to Dismiss Opinion. For the following reasons, the
motion for reconsideration and reargument is DENIED.
STAND ARD ON A MOTION TO RECONSIDER

Motions for reconsideration are governed by Local Civil Rule 6.3 and Federal Rule of
Civil Procedure 60(b). The standard for granting a reconsideration motion is strict. Shrader v.

'SXTrans ., Inc., 70 F.3d 255, 257 (2d Cir. 1995). These motions are "addressed to the sound

USDCSDNY
DOCUMENT
ELECTRONICALLY FILED
DOC#:

DATEF~IL~E-D-:~l-a,l-,~1-J.-<::>~1;s-"-

discretion of the district court....” Mendell in Behalf of Viacom, Inc. v. Gollust, 909 F.2d 724, 731
(2d Cir. 1990) aff'd sub nom. Gollust v. Mendell, 501 U.S. 115 (1991). Reconsideration is
appropriate when there is “an intervening change of controlling law, the availability of new
evidence, or the need to correct a clear error or prevent manifest injustice.” Doe v. New York City
Dep't of Soc. Servs., 709 F.2d 782, 789 (2d Cir. 1983). Parties should not regard such a motion as
an opportunity to “tak[e] 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)). “[R]econsideration of a previous order is an extraordinary remedy to be
employed sparingly . . . .” In re Health Mgmt. Sys., Inc. Sec. Litig., 113 F. Supp. 2d 613, 614
(S.D.N.Y. 2000) (internal citation omitted). The motion “will generally be denied unless the
moving party can point to controlling decisions or data that the court overlooked and that might
reasonably be expected to alter the conclusion reached by the court.” In re Optimal U.S. Litig.,
886 F. Supp. 2d 298, 311-12 (S.D.N.Y. 2012) (internal citation omitted); accord Analytical
Surveys, 684 F.3d at 52.
DISCUSSION
Plaintiff’s motion presents nothing new for the Court to consider. Instead, Plaintiff
recycles the same legal arguments contained in his complaint. Plaintiff has not presented the
Court with an intervening change in law or new evidence, and therefore this Court will not
reconsider its prior opinion.
Plaintiff alleges that he was not afforded the full measure of relief available in the Article
78 proceeding because he was not able to raise a constitutional challenge to a legislative
enactment. (See Pl.’s Mot. Recons. at 2.) As this Court previously held, “[i]ndividuals who bring
Article 78 proceedings to challenge determinations against them are free to raise constitutional

2

claims in such proceedings.” Pascazi v. Rivera, No. 13-cv-9029, 2015 WL 845839, at *8–9
(S.D.N.Y. 2015). Plaintiff’s assertion that he “was not able to litigate in the Article 78
proceeding his claims challenging legislative enactments” is misleading. While it may be true
that a petitioner seeking to facially challenge the validity of legislation may not use an Article 78
proceeding for that purpose, 1 Plaintiff was free to raise constitutional arguments as a defense
against enforcement of an administrative determination. Id.
Plaintiff’s arguments that (i) res judicata cannot apply to claims that arose after the
commencement of administrative hearings and (ii) the challenge to New York Labor Law § 220b(2)(g) was not ripe for adjudication because it was unclear whether the Commissioner would
enforce the judgments against Pascazi blatantly restate arguments that Plaintiff already made in
his opposition to the motion to dismiss and that were specifically addressed in the Court’s Order.
See Pascazi, 2015 WL 845839, at *6–9. Plaintiff has not brought to the Court’s attention any
overlooked or relevant matters or data which would alter the conclusion previously reached.
With regards to point (ii), Plaintiff argues that the Court “mistakenly concluded that the only
avenue available to satisfy the determination would be enforcement against Fiber Optek’s
owners” and, because Fiber Optek was not bankrupt at the time of the initial administrative
proceedings, Plaintiff should not have known he was liable for the judgment. (Pl.’s Mot. Recons.
at 4-5.) Not so. Section 220-b(2)(g) clearly states that, in the event of a company’s failure to pay
a money judgment, the largest five shareholders can be held liable for such judgment, and
Pascazi acknowledged to this Court that he understood the operative section of the law. (See

1
Plaintiff plainly misapplies the relevant case law in this instance. Plaintiff cites to Kovarsky v. Hous. & Dev.
Admin. of City of New York, 31 N.Y.2d 184, 191, 286 N.E.2d 882 (1972) for the assertion that an Article 78
proceeding is “not the proper vehicle to test the constitutionality of legislative enactments.” In fact, Kovarsky holds
that “an [A]rticle 78 proceeding is generally the proper vehicle to determine whether a statute, ordinance, or
regulation has been applied in an unconstitutional manner.” Id. (emphasis added). Plaintiff blatantly failed to
provide the entirety of the relevant language in Kovarsky, presumably in an attempt to mislead the court.

3

Premotion Conf. Tr., ECF No. 10, at 23-24.) Thus, Pascazi knew or should have known that he
could be held personally liable for restitution and statutory interest imposed by the
Determinations, regardless of whether Fiber Optek was solvent or bankrnpt.
The remaining claims in Plaintiffs motion to amend similarly attempt to carefully recraft
arguments that have ah·eady been addressed by this Comt. As such, the Court will not entertain
fu1ther analysis of these claims.
In sum, Plaintiff has raised no new issues for the Court's consideration that might

reasonably be expected to alter its prior opinion. The mguments advanced by Plaintiff are flatly
contradicted by applicable law. Accordingly, the Court declines to vacate its prior order of
dismissal.

CONCLUSION

For the foregoing reasons, Plaintiffs motion for reconsideration is DENIED. The Clerk
of the Court is respectfully requested to terminate the motion at Docket No. 27.

Dated:

SO ORDERED:

October 1, 2015
White Plains, New York

c&?

NELSON S. ROMAN
United States District Judge

4