Miran et al v. Cuomo et al

Filing 32

DECISION AND ORDER denying 25 Plaintiffs' Motion for Extension of Time to File; and denying 27 Plaintiffs' Motion to Vacate the Judgment with prejudice. Signed by Hon. Michael A. Telesca on 11/21/18. (Copy of Decision and Order sent by first class mail to Plaintiffs.) (JMC)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
_____________________________________
MICHAEL MIRAN and ESTA MIRAN,
Plaintiffs,

15-CV-6133
DECISION
and ORDER

v.

JERRY SOLOMON AND ERIC T. SCHNEIDERMAN,
Defendants.
________________________________________
I. INTRODUCTION
Michael and Esta Miran (“Plaintiffs” or “the Mirans”), both
doctors, were convicted of crimes related to Medicaid and Medicare
fraud. Their convictions were affirmed on direct appeal by the
Appellate Division, Fourth Department of New York State Supreme Court
(“Fourth
28

(4th

Department”).
Dept.2013),

See

leave

People
denied,

v.
21

Miran,
N.Y.3d

107
1044

A.D.3d
(2013),

reconsideration denied, 22 N.Y.3d 957 (2013) and cert. denied sub
nom., 134 S.Ct. 2312 (2014). Plaintiffs then filed this pro se action
seeking relief under 42 U.S.C. §§ 1983 and other statutes against
numerous defendants. In essence, Plaintiffs sought to have this Court
“void and overturn” the actions of the New York State Attorney
General Medicaid Fraud Control Unit (“MFCU”) and the New York State
Courts.

Plaintiff’s first amended complaint was dismissed by this

Court as frivolous. Their second amended complaint was dismissed on

the basis of res judicata, in light of the Fourth Department’s
decision affirming their convictions.
Plaintiffs now have filed a Motion for Extension of Time to File
a Motion to Vacate Judgment (Docket No. 25) and a Motion for Rule 60
Relief from Judgment (Docket No. 27). Defendants filed Responses in
Opposition (Docket Nos. 26 & 29) to both motions. Plaintiffs filed a
Reply (Docket No. 30). For the reasons discussed below, both motions
are dismissed.
II. DISCUSSION
Rule 60(b) of the Federal Rules of Civil Procedure allows a
party to seek relief from a final judgment on certain enumerated
grounds: mistake, inadvertence, surprise, or excusable neglect; newly
discovered evidence; fraud; the judgment is void; or the judgment has
been satisfied. FED. R. CIV. P. 60(b)(1)-(5). Rule 60(b) also has a socalled “catch-all” provision, subsection (6), which allows vacatur
for “any other reason that justifies relief. . . .” FED. R. CIV. P.
60(b)(6).
Here, Plaintiffs’ motion to vacate the judgment is brought
pursuant to Rule 60(b)(2) on the basis that they have obtained newly
discovered

evidence.

Specifically,

Plaintiffs

assert

they

have

obtained evidence from a Freedom of Information Act (“FOIA”) request
“show[ing] that no NYS agency certified or oversaw the Mirans’
treatment and billing. If this information were available during the
original proceedings, the Mirans’ attorneys could have challenged the

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use of [N.Y. Exec. Law] § 63.3 to authorize prosecution of the
Mirans. New evidence from the FOIA establishes that the Mirans’ case
is entirely HHS/CMS/Medicare and governed by federal law, regulations
and rules.” (Docket No. 27, p. 1 of 2).
Defendants argue, inter alia, that Plaintiffs’ motion to vacate
is untimely because it was filed well beyond the one-year limitations
period applicable to motions made pursuant to subsection (2) of
Rule 60(b). The Court agrees.

Rule 60(c) explicitly provides that

motions under subsections (1), (2), and (3) must “be made within a
reasonable time, and . . . not more than one year after the judgment
. . . .” Fed. R. Civ. P. 60(c)(1). This one-year time limit is
“absolute.” Martha Graham Sch. & Dance Found., Inc. v. Martha Graham
Ctr. of Contemporary Dance, Inc., 466 F.3d 97, 100 (2d Cir. 2006);
see also 11 Fed. Prac. & Proc. Civ. § 2866 (3d ed. 2013) (“The
one-year period represents an extreme limit, and the motion may be
rejected as untimely if not made within a ‘reasonable time’ even
though the one-year period has not expired. . . . The concept of
reasonable time cannot be used to extend the one-year limit. . . .
Nor does the court have any power to enlarge the time limits of the
rule.”).
Here,
complaint

the
was

judgment
entered

dismissing
on

October

Plaintiffs’
27,

2015

second

(Docket

amended

No.

19).

Plaintiffs’ motion to vacate was not filed until nearly three (3)
years later. It is plainly untimely, and the Court “has no power to
enlarge the one-year period.” Nat’l Union Fire Ins. Co. of Pittsburgh
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v. Forman 635 Joint Venture, No. 94 CIV. 1312(LLS), 1996 WL 507317,
at *2 (S.D.N.Y. Sept. 6, 1996) (citing FED. R. CIV. P. 6(b)(2) (“A
court must not extend the time to act under Rules 50(b) and (d),
52(b), 59(b), (d), and (e), and 60(b).”).
Moreover, it is well settled that “[w]hen the reason asserted
for

relief

comes

properly

within

one

of

those

clauses

[i.e.,

subsections (1), (2), and (3)], clause (6) [of Rule 60(b)] may not be
employed to avoid the one-year limitation.” United States v. Cirami,
563 F.2d 26, 32 (2d Cir. 1977). “If clause (6) were not mutually
exclusive of the other clauses, a party’s artful motion practice
could render meaningless the one-year time limitation on clauses (1),
(2), (3).” Freedom, N.Y., Inc. v. United States, 438 F. Supp.2d 457,
464

(S.D.N.Y.

squarely

2006).

within

the

Here,

Plaintiffs’

parameters

of

motion

Rule

to

vacate

60(b)(2).

falls

Plaintiffs

accordingly may not rely on the catch-all clause of subsection (6) to
avoid the one-year limitation. See, e.g., Greenberg v. Chrust, No. 01
Civ. 10080(RWS), 2004 WL 585823, at *3 n.6 (S.D.N.Y. Mar. 25 2004)
(“A party may not depend on the broad ‘any other reason’ provision of
Rule 60(b)(6) where the basis for the Rule 60(b) motion may be
construed under any other clause of Rule 60(b).”).
The Court is without authority to extend the time limit, and
therefore

Plaintiffs’

motion

to

extend

the

time

to

file

for

Rule 60(b) relief must be denied. Plaintiff’s Rule 60(b) motion is
untimely because it was brought well outside the one-year limitations

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period for motions seeking to overturn a judgment based on newly
discovered evidence. Accordingly, the Court lacks jurisdiction to
consider it and need not reach Defendants’ alternative arguments for
dismissal.
III. CONCLUSION
For the foregoing reasons, the Court denies Plaintiffs’ Motion
for an Extension of Time and Motion to Vacate the Judgment with
prejudice.
SO ORDERED.

S/Michael A. Telesca
HON. MICHAEL A. TELESCA
United States District Judge
Dated:

November 21, 2018
Rochester, New York.

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