Svenningsen et al v. Ultimate Services Professional Grounds Mangement, Inc. et al
OPINION & ORDER re: 168 MOTION for Reconsideration re; 167 Memorandum & Opinion filed by Ultimate Professional Grounds Management, Inc. For the foregoing reasons, Defendant Ultimate's motion for reconsideration is DENIED. The Clerk of the Court is respectfully directed to terminate the motion at ECF No. 168. The parties are directed to appear for the previously scheduled pre-trial conference on July 20, 2017 at 12:00 pm. (As further set forth in this Order.) (Signed by Judge Nelson Stephen Roman on 7/20/2017) (cf)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
CHRISTINE SVENNINGSEN, 33 PROSPECT HILL
ROAD, LLC, 34 PROSPECT HILL ROAD, LLC, AUTO
I, LLC, BELDENS ISLAND, LLC, CUT-IN-TWO
EAST, LLC, CUT-IN-TWO WEST, LLC, EAST CRIB
ISLAND, LLC, GUILFORD DOCKOMINTUM I, LLC,
HOME PALA CE, LLC, JEPSON ISLAND, LLC,
LINDEN POINT, LLC, REEL ISLAND, LLC, ROGERS
ISLAND, LLC, SNOW PALA CE, LLC, THE OLD
ADAMS HOUSE, LLC, WEST CRIB ISLAND, LLC,
WHALER I, LLC, and WHEELER ISLAND, LLC,
OPINION & ORDER
No. 14 Civ. 5161 (NSR)
-againstULTIMATE PROFESSIONAL GROUNDS
MANAGEMENT, INC., doing business as
ULTIMATE SERVICES PROFESSIONAL GROUNDS
MANAGEMENT, JOHN G. CHIARELLA, JR.,
DOMENIC A. CHIARELLA, and
ULTIMATE SERVICES PROFESSIONAL GROUNDS
NELSON S. ROMAN, United States District Judge
Defendant Ultimate Professional Grounds Management, Inc. ("Ultimate") seeks
reconsideration of this Court's March 31, 2017 Opinion and Order (the "Opinion") (ECF
No. 167) resolving the patties' cross-summary judgment motions. Ultimate argues the Court
should have dismissed the Property LLC Plaintiffs' remaining claims on the bases of judicial
estoppel and lack of standing. (See Def. Reply at 1, 6, ECF No. 174.) But, as the Prope1ty LLCs
correctly observe (see Pis. Opp'n at 6-11, ECF No. 172), neither ofUltimate's positions are
correct. Familiarity with the Opinion and the factual background of this action is assumed.
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Reconsideration of a Court’s previous order is “an extraordinary remedy to be employed
sparingly in the interests of finality and conservation of scarce judicial resources.” In re Initial
Pub. Offering Sec. Litig., 399 F. Supp. 2d 298, 300 (S.D.N.Y. 2005) (internal citation and
quotation omitted), aff’d sub nom. Tenney v. Credit Suisse First Boston Corp., Nos. 05 Civ.
3430, 05 Civ. 4759 & 05 Civ. 4760, 2006 WL 1423785, at *1 (2d Cir. 2006). Motions for
reconsideration are governed by Local Civil Rule 6.3 and Federal Rule of Civil Procedure 60(b),
and “[t]he standard for granting a motion for reconsideration . . . is strict.” Targum v. Citrin
Cooperman & Company, LLP, No. 12 Civ. 6909 (SAS), 2013 WL 6188339, at *1 (S.D.N.Y.
Nov. 25, 2013). Motions for reconsideration are “addressed to the sound discretion of the district
court and are generally granted only upon a showing of exceptional circumstances.” Mendell ex
rel. Viacom, Inc. v. Gollust, 909 F.2d 724, 731 (2d Cir. 1990).
Importantly, a motion to reconsider “is not a vehicle for . . . presenting the case under
new theories . . . 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) (quotation and citation omitted); see also
Nat’l Union Fire Ins. Co. of Pittsburgh, PA v. Stroh Cos., 265 F.3d 97, 115 (2d Cir. 2001)
(quoting Polsby v. St. Martin’s Press, No. 97 Civ. 0690 (MBM), 2000 WL 98057, at *1
(S.D.N.Y. Jan. 18, 2000)) (in moving for reconsideration, “‘a party may not advance new facts,
issues, or arguments not previously presented to the Court.’”). Generally, these motions “‘will 
be denied unless the moving party can point to controlling decisions or data that the court
overlooked.’” Analytical Surveys, 684 F.3d at 52 (quoting Shrader v. CSX Transp., Inc., 70 F.3d
255, 257 (2d Cir. 1995)).
The admonition to avoid making motions for reconsideration absent “extraordinary”
circumstances—such as “point[ing] to controlling decisions or data that the court overlooked,”
Shrader, 70 F.3d at 257—has not deterred Ultimate from asking for reconsideration in this case.
Primarily, Ultimate argues that the Court “overlooked” its seven page argument regarding the
application of judicial estoppel to Plaintiff Svenningsen’s claims and its lengthy footnote
argument that the Property LLC Plaintiffs were similarly estopped or lacked standing to assert
claims against Ultimate. (See Def. Mem. at 2, ECF No. 169.) What Ultimate does not do,
however, is point to controlling precedent or information that the Court neglected to consider.
In the Opinion, this Court decided that Svenningsen and Chiarella had mutually waived
claims against each other by virtue of their divorce agreement. (Opinion at 24; Svenningsen v.
Ultimate Prof’l Grounds Mgmt., Inc., No. 14 Civ. 5161 (NSR), 2017 WL 1234040, at *12
(S.D.N.Y. Mar. 31, 2017).) The Court concluded that the LLCs, not parties to that personal
divorce, could not be held to the same waiver. (Id.; Svenningsen, 2017 WL 1234040, at *12.)
The Court then held that Ultimate’s remaining arguments were either “unnecessary” or
“unpersuasive.” (Id. at 25; Svenningsen, 2017 WL 1234040, at *13.) Though Ultimate appears
to think the word “unpersuasive” was the only instance in which the Court dismissed its other
arguments against the LLCs, the Court also indicated that: (1) Ultimate’s arguments regarding
“statute of limitations and waiver  address[ed] a significant portion of Plaintiffs’ claims in th[e]
action;” (2) “Defendants’ remaining arguments d[id] not impact the remaining viable claims;”
and, specifically, (3) Ultimate did not “articulate any viable defenses to claims brought by the
LLCs.” (Id. at 11, 24; Svenningsen, 2017 WL 1234040, at *6, 12-13 (emphasis added).)
Despite failing to demonstrate its entitlement to reconsideration, the Court will explain in
greater detail why Ultimate’s arguments were unpersuasive, i.e., why judicial estoppel does not
apply to the Property LLCs’ claims and why the LLCs have standing to pursue this action.
Judicial Estoppel Does Not Apply to the LLCs Claims
Under Connecticut law, the law applicable to this action, judicial estoppel requires that
“(1) ‘a party’s later position is clearly inconsistent with its earlier position,’ (2) ‘the party’s
former position has been adopted in some way by the court in the earlier proceeding,’ and
(3) ‘the party asserting the two positions would derive an unfair advantage against the party
seeking estoppel.’” Barton v. City of Norwalk, 326 Conn. 139, --- A.3d ----, at *9 (2017)
(quoting Dep’t of Transportation v. White Oak Corp., 319 Conn. 582, 612 (2015) and citing
Dougan v. Dougan, 301 Conn. 361, 372-73 (2011); DeRosa v. National Envelope Corp., 595
F.3d 99, 103 (2d Cir. 2010)) (emphasis added). “[G]enerally speaking, the doctrine will not
apply ‘if the first statement or omission was the result of a good faith mistake . . . or an
unintentional error.’” Id. (citation omitted). And, “[l]ike all equitable remedies, judicial estoppel
requires the party invoking the doctrine to do so with clean hands.” David M. Somers & Assocs.,
P.C. v. Kendall, 1 A.3d 217, 220 (Conn. App. Ct. 2010). Furthermore, where the parties in the
two proceedings differ, the Court must determine whether they are in sufficient privity for the
doctrine to apply. See Central Hudson Gas & Elec. Corp. v. Empresa Naviera Santa S.A., 56
F.3d 359, 368 (2d Cir. 1995) (for res judicata purposes, determination of whether party is in
privity with former litigant requires court to inquire whether “party controlled or substantially
participated in the control of the presentation on behalf of a party to the prior action” and that its
interests were “identical to the interests” of former litigant) (internal quotation marks and
“In the bankruptcy context, the federal courts have developed a basic default rule: If a
plaintiff-debtor omits a pending (or soon-to-be-filed) lawsuit from the bankruptcy schedules and
obtains a discharge (or plan confirmation), judicial estoppel bars the [pending] action.” Ah Quin
v. Cty. of Kauai Dep’t of Transp., 733 F.3d 267, 271 (9th Cir. 2013); see BPP Illinois, LLC v.
Royal Bank of Scotland Grp. PLC, 859 F.3d 188, 192 (2d Cir. 2017) (“Judicial estoppel will
‘prevent a party who failed to disclose a claim in bankruptcy proceedings from asserting that
claim after emerging from bankruptcy.’”) (citations omitted); see, e.g., In re Crossover Fin. I,
LLC, 477 B.R. 196, 204 (Bankr. D. Colo. 2012) (noteholders took “positions to suit their
litigation tactics regardless of whether they conflict[ed] with each other”). The doctrine has
similarly been applied to an LLC as a result of a position previously taken by its sole ownermember during a personal bankruptcy. See, e.g., Patriot Mfg. LLC v. Hartwig, Inc., No. 10 Civ.
1206 (EFM) (KGG), 2014 WL 4538059, at *1 (D. Kan. Sept. 11, 2014) (plaintiff’s “sole
member” omitted “his ownership interest in [the plaintiff LLC] or th[e] lawsuit in his personal
bankruptcy filing,” requiring application of judicial estoppel to LLC’s breach of contract claims).
Application of the doctrine is more nuanced in a case, such as this, where the parties have
intertwined their personal and professional matters. The thrust of Ultimate’s argument at
summary judgment was that judicial estoppel should apply to the LLCs’, as well as
Svenningsen’s, claims “as a matter of equity and public policy,” because “[i]f parties could
circumvent the court and avoid the consequences of judicial estoppel simply by bringing the
same claims on behalf of their solely owned LLCs, they would be free to advance inconsistent
positions in different courts with impunity, rendering the doctrine powerless.” (Def. S.J. Mem.,
at 8 n.3; see also id. at 2 (“Christine, either personally or through her solely owned  LLCs,
should not be permitted to now take a completely inconsistent position before this court”).) 1
Ultimate tellingly omitted any case citations for this proposition and omitted the fact that
Chiarella also had an intimate relationship with the LLCs. In fact, it is the complexity of the
relationship between Ultimate and the LLCs, Chiarella and Svenningsen, that undermines the
application of judicial estoppel in this case.
A. Is Svenningsen’s Prior Position, Taken During the Divorce, Clearly Inconsistent
with the LLCs’ Current Position?
When an individual files for bankruptcy and omits a claim, of which that person was
aware, and in a later action asserts that claim—it works an injustice against the individual’s
creditors by “abusing the judicial process through cynical gamesmanship[.]” Teledyne Indus.,
Inc. v. N.L.R.B., 911 F.2d 1214, 1218 (6th Cir. 1990); BPP Illinois, 859 F.3d at 194. Unlike a
bankruptcy proceeding focusing on professional dissolutions between members of companies
and their creditors, a matrimonial court is tasked with adjudicating personal divorces. Here,
particularly given the fact that Chiarella had taken on a role within the LLCs, it does not work an
injustice—or force an inconsistent position—to keep the LLCs separate from the personal
divorce in the absence of an explicit acknowledgement by either party to the divorce that the
waiver should also apply to the LLCs in which they shared some responsibility. Compare, e.g.,
In re Myers, No. 09-33813 (JES), 2012 WL 2501124, at *2 (Bankr. E.D. Wis. June 28, 2012) (in
a case of “mixing friendship with business,” judicial estoppel did not apply where statement
made by creditor did not clearly delineate whether it sought to hold LLC or individuals liable for
debt), with Samson v. NAMA Holdings, LLC, 637 F.3d 915, 936 (9th Cir. 2011) (position was
Ultimate also contends that by defining “Plaintiffs” to include the LLCs it provided sufficiently robust
argument on the extension of the doctrine to both Svenningsen and the LLCs. (See Def. Reply at 2.) This
contention is particularly unconvincing in the absence of controlling case law related to this specific context—which
Ultimate did not provide.
clearly inconsistent where plaintiffs “consistently argued that their capacity as manager [of LLC]
was distinct from their capacity as individuals” but later attempted to apply LLC agreement to
claims against them as individuals).
At the outset, the Court notes that the parties did not submit sufficient information in their
motions for summary judgment to create a “fully developed” record with regard to the structure
of the LLCs and the internal obligations owed between the manager and potential members:
Svenningsen is the sole member and owner of the Property LLCs, but her ex-husband, Chiarella,
was the manager of the LLCs at the time the alleged wrongdoing occurred and he may have
owed the LLCs a fiduciary duty. 2 Specifically, neither side submitted the operating agreements
for the companies for the Court’s consideration. Therefore, the Court could not decide any
issues related to the management of the LLCs. (Opinion at 20 n.14 (declining to decide whether
the LLCs were owed a fiduciary duty by Chiarella)); cf. Scarfo v. Snow, 146 A.3d 1006, 1019
n.10 (Conn. App. Ct. 2016) (noting the court was able to conduct a “thorough review of the
operating agreement” at issue).
As a result, there is a genuine question here as to whether the Property LLC Plaintiffs and
Svenningsen are in sufficient privity such that Svenningsen’s assertions made in the divorce
court should bind the LLCs. See Empresa Naviera, 56 F.3d at 368. Privity is generally found
when the party to the previous litigation was the sole or managing member of a closely held
corporation. See, e.g., Lia v. Saporito, 909 F. Supp. 2d 149, 178-79 (E.D.N.Y. 2012), aff’d, 541
F. App’x 71, 73 (2d Cir. 2013) (party claimed to be “undisclosed 75% owner, sole manager, and
sole financier of [an entity]” and that entity “was a party to the [previous] administrative
The Court detailed this information in the Opinion. (Opinion at 3, 20 n.14; Svenningsen, 2017 WL
1234040, at *2, 10 n.14; see also Pls. Resp. 56.1 ¶¶ 1, 4, 86, ECF No. 161; Am. Compl. ¶ 31 & Ex. A (Chiarella
listed as “manager” for each LLC and as president of Ultimate).)
proceeding”). But Svenningsen’s interests in the divorce were arguably different and distinct
from the interests of the LLCs. And, there is insufficient evidence in the record to determine
what degree of control over the LLCs Chiarella was able to assert.
More importantly, Ultimate has not established, particularly given the identity issues
between the parties, that the waiver of claims made during Svenningsen and Chiarella’s divorce
proceedings is clearly inconsistent with the LLCs asserting their own claims now. When
Svenningsen divorced from Chiarella—and the two listed their respective assets—both were
undoubtedly aware that the Property LLCs were not listed. Svenningsen listed her whollyowned investment company and disclaimed any pending claims against Chiarella and, thus, his
grounds keeping company. Chiarella listed Ultimate and did the same. Though Ultimate argues
the LLCs’ claims are “identical” to Svenningsen’s claims (see Def. Reply at 4, 7), they are not:
all of Svenningsen’s personal claims have been dismissed. (See Opinion at 24.)
Therefore, her position during the divorce is not clearly inconsistent, as required under
the doctrine of judicial estoppel, with the Property LLCs’ current claims against Ultimate, since
those entities were in a unique management and service relationship with Ultimate that differed
from the relationship between Svenningsen and Chiarella, both parties knew the LLCs were not
listed on the financial affidavits, and the disclaimer did not imply it would extend to jointly
managed companies. See Barton, 326 Conn. 139, at *9-10 (prior assertion as to a property’s
“highest and best use” for valuation purposes did not conflict with decision to use property in a
different fashion); Mangiafico v. Town of Farmington, 173 Conn. App. 178, 192, --- A.3d ----,
(Conn. App. Ct. 2017) (given the specific facts at issue, town’s claim that an appeal procedure
was not available “was correct and was not inconsistent with its prior position” that an appeal
was available in different circumstances); Rogers Inv. Co. v. F. W. Woolworth Co., 161 Conn. 6,
11 (1971) (plaintiff admitted that defendant claimed entitlement to an escrow fund, but that
admission did not extend to whether such a claim was valid); cf. Dougan, 301 Conn. at 374 (“one
year after representing to the trial court that he . . . agreed to the [divorce] agreement in its
entirety, and that [it] was fair and equitable, the plaintiff . . . asked that court to invalidate the
provision because it constituted a penalty and was unenforceable as against public policy”).
Because the divorce proceeding was a divorce between individuals, not businesses, both
of whom had some role in the LLCs, Ultimate has failed to establish at this stage of the litigation
that Svenningsen’s position is “clearly inconsistent” with the position of the LLCs, or that it
should be binding upon them.
B. Does Svenningsen Reap an Unfair Advantage Against Ultimate Based on
the Two Positions?
As for the third requirement, it is difficult to imagine how Svenningsen would derive an
“unfair advantage” against Ultimate. Barton, 326 Conn. 139, at *8; cf. Lia, 909 F. Supp. 2d
at 178-79 (“the Lia parties would derive an unfair advantage if allowed to disavow any interest in
the  [d]ealership . . . in order to avoid a statutory protest which, if successful, could have
prevented the  [d]ealership from opening, only to later be allowed to change their position . . .
to claim a majority interest in the seemingly successful  [d]ealership entitled to a share of its
profits”). The Court, in deciding that the separation agreement only applied to claims between
Svenningsen and Chiarella, and in rejecting the application of judicial estoppel to the LLCs,
recognized that whatever Svenningsen knew in 2013, or had inquiry notice of in 2011, Chiarella
would also have been aware of in his dual, potentially conflicting, roles as owner of Ultimate and
manager of the LLCs. Similarly, as noted, Chiarella was undoubtedly aware that the companies
for which he acted as manager were not listed on Svenningsen’s asset schedule, whether
intentionally or by mistake. 3 See Summer v. Summer, 649 N.Y.S.2d 615, 616 (4th Dep’t 1996)
(husband who complained of assets that were concealed during a bankruptcy filing
“acknowledge[d] that he knew of [wife’s] concealment of the family trust before the
commencement of the trial in the underlying matrimonial action” precluding a finding of fraud
required to vacate the final judgment of divorce); Billington v. Billington, 220 Conn. 212, 217,
224-25 (1991) (requiring that “the statement [be] untrue and known to be so by its maker” and
that the parties not be acting in concert to re-open a divorce judgment). Therefore, although he
may have been surprised by Svenningsen’s claims in this action given the settlement agreement
between the two individuals, his surprise at claims lodged by the LLCs is dubious. His
involvement with Ultimate and the LLCs also frustrates the requirement that “the party invoking
the doctrine  do so with clean hands.” Kendall, 1 A.3d at 220.
As was the case for Svenningsen, Chiarella’s decision to mix his marital and managerial
duties impacts this litigation and exemplifies why the LLCs cannot be judicially estopped by
Svenningsen’s actions. Even concluding, as this Court did at summary judgment, that
In this case, the failure of Ultimate’s judicial estoppel argument does not turn on Svenningsen’s
knowledge—or whether she made a mistake during the divorce proceedings. Barton, 326 Conn. 139, at *8 (doctrine
does not apply in the case of “a good faith mistake . . . or an unintentional error”); see, e.g., Cagle v. C & S
Wholesale Grocers Inc., 505 B.R. 534, 540 (E.D. Cal. 2014) (where there was “no question that Plaintiff had
knowledge of the facts giving rise to the lawsuit” but failed to amend bankruptcy schedules, court found “Plaintiff’s
claim of inadvertence or mistake [was] simply not plausible”). Rather, the doctrine is inapplicable because of the
interplay between Chiarella and the LLCs.
Moreover, Ultimate has also failed to present sufficient evidence to warrant summary judgment on the
issue of Svenningsen’s intent when the LLCs were omitted from the affidavits at issue. Ass’n Res., Inc. v. Wall, 298
Conn. 145, 172 (2010) (defendant failed to “point to any evidence contradicting the plaintiff’s assertion that he did
not realize that he was supposed to list this counterclaim as an asset in the bankruptcy proceeding” and failed to
demonstrate prejudice based on the nondisclosure); Sutton v. Licenziato, No. UWYCV126019112S, 2015 WL
6231967, at *5 (Conn. Super. Ct. Sept. 18, 2015) (party presented “absolutely no evidence of any bad faith actions
or intentional deception . . . as  required for judicial estoppel”); see also Conn. Gen. Stat. Ann. § 34-132 (West),
repealed by 2016, P.A. 16-97, § 110 (eff. July 1, 2017) (although notice to a member is generally imputed to an
LLC, that is not true “in the case of a fraud on the limited liability company committed by or with the consent of that
manager[.]”). Plaintiffs’ repeated point that Chiarella has not sought to reopen the divorce judgment despite the
claims now lodged against Ultimate supports this conclusion. (See Pls. Opp’n at 8.)
Svenningsen “came to the conclusion sometime in 2013” that she was owed money as a result of
Ultimate’s alleged deceptive business practices prior to the finalization of Svenningsen and
Chiarella’s divorce in 2014, the Court cannot make the leap that the LLCs, distinct entities in
which both individuals had some role, should be estopped from asserting their distinct claims. In
sum, when Svenningsen waived any claims against Ultimate, she did not do so with respect to
the LLCs, 4 and it would not work an injustice to allow such claims to go forward at this juncture.
See In re First Connecticut Consulting Grp., Inc., 254 F. App’x 64, 67 (2d Cir. 2007) (“the
record fails to demonstrate the requisite clear inconsistency in their positions or risk of
inconsistent results necessary to warrant the application of judicial estoppel to this case”).
The LLCs have Standing to Pursue the Claims
Ultimate’s argument at summary judgment, also asserted in the same footnote arguing for
the extension of judicial estoppel to the Property LLCs, was that the LLCs “do not having
standing to sue because they did not sustain any injury, since all invoices relevant to the
overcharge claims were paid by [Svenningsen].” (Def. S.J. Mem., at 8 n.3 (citing Chiulli v. Zola,
905 A.2d 1236, 1241 (Conn. App. Ct. 2006); Jenkins v. U.S., 386 F.3d 415, 417 (2d Cir. 2004)).)
Ultimate additionally argued:
Plaintiffs  d[id] not allege that the  LLCs were parties to any
contract with Ultimate, or that they had any direct relationship with
Ultimate sufficient to give rise to any causes of action based on
alleged overcharges. Even assuming arguendo that the  LLCs,
were third-party beneficiaries to the Contract that was effective
beginning in 2010, if Christine is barred from enforcing the
Contract, then the  LLCs are also barred.
The LLCs are distinct legal entities and Ultimate has not established—or even tried to demonstrate—that
the LLCs are simply alter egos of Svenningsen. Padawer v. Yur, 66 A.3d 931, 935-36 (Conn. App. Ct. 2013)
(“position as sole member, also, d[id] not provide [plaintiff] with standing to recover individually for harm to the
limited liability company”); cf. In re Weeks Landing, LLC, 439 B.R. 897, 915 (M.D. Fla. 2010) (in reverse situation,
there was “no record evidence” that release entered into between LLCs waived individual claims of member to one
of the LLCs).
(Id.) Ultimate, thus, anchors its lack of standing argument to the proposition that the waiver of
Svenningsen’s claims extended to the LLCs even if they were third-party beneficiaries. But, as
discussed above, the waiver, based on the evidence presented, does not extend to the LLCs. 5
The Property LLC Plaintiffs are free to enforce the contracts—entered into between
Svenningsen and Ultimate for their benefit—as intended third-party beneficiaries. See Byram
Lumber & Supply Co. v. Page, 109 Conn. 256, 146 A. 293, 294 (1929) (“a third party for whose
benefit a provision has been inserted in a contract may sue thereon”); Heyman Assocs. No. 5,
L.P. v. FelCor TRS Guarantor, L.P., 102 A.3d 87, 96 (Conn. App. Ct. 2014) (property owners
had standing to enforce restrictive covenant designed to benefit property, where “[i]t [was]
apparent that the defendant clearly understood who owned the [property]”); see also (Opinion
at 24 (citing Gateway Co. v. DiNoia, 232 Conn. 223, 231 (1995) (a third-party beneficiary to a
contract can enforce its obligations if the contract was intended to create a direct obligation from
one party to that third-party)); id. at 25 (“This leaves the Property LLCs’ claims related to
Ultimate’s provision of grounds-keeping services to the property held by the LLCs.”)).
Plaintiffs correctly argue that “[t]he fact that Svenningsen paid amounts due on the
Ultimate contracts from her personal funds does not deprive [the] LLCs of standing.” (Pls.
Opp’n at 11 (“Svenningsen’s payments were manifestly for the benefit of [the] LLCs pursuant to
contracts to which they were parties.”).) Therefore, the LLCs have standing to pursue their
claims, separate and apart from whatever claims Svenningsen may have had. See Ambrogio v.
Beaver Rd. Assocs., 267 Conn. 148, 155 (2003) (for example, “consequential damages include
any loss that may fairly and reasonably be considered [as] arising naturally, i.e., according to the
As the Court explained in the Opinion, “all of [Svenningsen’s] personal claims against Ultimate were
waived when she signed the Separation Agreement[.]” (Opinion at 24 (emphasis added).)
usual course of things, from [the] breach of contract itself.") (citations omitted); see also Little
Afounlains Enterprises, Inc. v. Groom, 64 A.3d 781, 786 (Conn. App. Ct. 2013) (discussing
damages measures and evidence required); cf Scarfo, 146 A.3d at 1016 (if"harms asserted to
have been suffered directly by a plaintiff are in reality derivative of injuries to a third party, 
injuries are not direct but are indirect,  the plaintiff has no standing to asse1t them").
* * *
Having failed to point to controlling law or data on the issues of judicial estoppel and
standing which this Court overlooked with regard to the Property LLC Plaintiffs' claims, the
Court denies Defendant's motion for reconsideration. Ultimate's attempted "second bite at the
apple," Analytical Surveys, 684 F.3d at 52, does not change the Court's conclusions.
For the foregoing reasons, Defendant Ultimate's motion for reconsideration is DENIED.
The Clerk of the Comt is respectfully directed to terminate the motion at ECF No. 168.
The parties are directed to appear for the previously scheduled pre-trial conference on
July 20, 2017 at 12:00 pm.
July 7,g, 2017
White Plains, New York
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