Byrd v. Dunn Towers I/Apt's et al

Filing 23

ORDER denying 19 Motion for Reconsideration. (Copy of Decision and Order sent by first class mail to Plaintiff.) Signed by Hon. Michael A. Telesca on 3/16/18. (JMC)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
VICKIE DIANNE BYRD,
Plaintiff,

No. 6:16-cv-06785(MAT)
DECISION AND ORDER

-vsDUNN TOWERS I, APT’S, PHILLIPONE
REALTY, INC., DUNN TOWERS I
APARTMENTS,
Defendants.

I.

Background
Proceeding pro se, Vickie Dianne Byrd (“Plaintiff”) instituted

this action against defendants “Dunn Towers I, Apt’s” and “Dunn
Towers I Apartments” (collectively, “Dunn Towers I”) and Phillipone
Realty, Inc. (“Phillipone”) by filing a complaint dated December 1,
2016, alleging that defendants violated the Fair Housing Act, 42
U.S.C. § 3601 et seq. (“FHA”) and generally discriminated against
her on the basis of disability.
On January 16, 2018, the Court issued a Decision and Order
(Doc. 17) denying Plaintiff’s Motion for Summary Judgment; granting
summary judgment in favor of Dunn Towers I on its converted Motion
to Dismiss; granting summary judgment in favor of Phillipone on its
converted

Answer;

and

dismissing

January

23,

2018,

Plaintiff’s

Complaint

with

prejudice.
On

Plaintiff

filed

a

Motion

for

Reconsideration (Doc. 19). On February 6, 2018, Dunn Towers I filed
a Memorandum of Law in Opposition (Doc. 20). Phillipone filed a

Memorandum of Law in Opposition (Doc. No. 21) on February 7, 2018.
The reconsideration motion was submitted without oral argument on
February 21, 2018. For the reasons discussed below, Plaintiff’s
motion is denied.
II.

Legal Standard
Plaintiff asserts that her “motion [is] filed under” Federal

Rule of Civil Procedure (“FRCP” or “Rule”) 60(b) and Federal Rule
of Appellate Procedure (“FRAP”) (4)(A)(iv). (See Doc. 1, p. 1 of
2). FRAP (4)(A)(iv) provides that a timely-file motion to alter or
amend the judgment under FRCP 59 tolls the running of the period to
file a notice of appeal until the FRCP 59 motion is resolved.
Although Plaintiff has referred to FRCP 60(b), the Court presumes
that she intended to bring the motion under FRCP 59(e), since she
specifically cites FRAP 4(A)(iv), which refers to FRCP 59(e)
motions, while FRAP 4(a)(vi) refers to relief under FRCP 60(b).
Moreover, “where a post-judgment motion is timely filed and ‘calls
into question the correctness of that judgment it should be treated
as a motion under FRCP 59(e), however it may be formally styled.’”
Lyell Theatre Corp. v. Loews Corp., 682 F.2d 37, 41 (2d Cir. 1982)
(quoting Dove v.Codesco, 569 F.2d 807, 809 (4th Cir. 1978))
“There are four basic grounds upon which a Rule 59(e) motion
may be granted. First, the movant may demonstrate that the motion
is necessary to correct manifest errors of law or fact upon which
the judgment is based. . . . Second, the motion may be granted so

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that the moving party may present newly discovered or previously
unavailable

evidence.

Third,

the

motion

will

be

granted

if

necessary to prevent manifest injustice. . . . Fourth, a Rule 59(e)
motion may be justified by an intervening change in controlling
law.”

11

Fed.

Prac.

&

Proc.

Civ.,

Grounds

for

Amendment

or

Alteration of Judgment, § 2810.1 (3d ed.) (footnotes omitted).
The Second Circuit has explained that “[t]he standard for
granting

a

[motion

for

reconsideration]

is

strict,

and

reconsideration will generally be denied unless the moving party
can

point

to

controlling

overlooked—matters,

in

decisions

other

words,

or

data

that

that

might

the

court

reasonably

be

expected to alter the conclusion reached by the court.” Shrader v.
CSX

Transp.,

Inc.,

70

F.3d

255,

257

(2d

Cir.

1995)

(citing

Schonberger v. Serchuk, 742 F. Supp. 108, 119 (S.D.N.Y. 1990);
Adams v. United States, 686 F. Supp. 417, 418 (S.D.N.Y. 1988)).
III. Discussion
Plaintiff does not point to controlling decisions or data that
the Court overlooked, or present newly discovered or previously
unavailable evidence, or assert there has been an intervening
change in the controlling law. Instead, she conclusorily asserts
that there was “no lawful reason” for dismissing her case, and
complains she that was not afforded trial or hearing on her claims,
as she requested. Plaintiff mentions “due process” several times in
her two-page motion. The Court therefore construes her motion as

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attempting to assert that reconsideration is necessary to prevent
manifest injustice.
As Defendants argue, Plaintiff continues to labor under the
misapprehension

that

a

litigant

is

entitled

as

a

matter

of

constitutional law to a hearing or a trial on every complaint filed
in

Federal

incorrect,

court,
and

under

Plaintiff

all

circumstances.

cites

no

legal

This

is

authority

simply

for

this

proposition. Indeed, as the Supreme Court recognized in 1986, the
Federal

Rules

of

Civil

Procedure

“have

for

almost

50

years

authorized motions for summary judgment upon proper showings of the
lack of a genuine, triable issue of material fact. Summary judgment
procedure is properly regarded not as a disfavored procedural
shortcut, but rather as an integral part of the Federal Rules as a
whole,

which

are

designed

‘to

secure

the

just,

speedy

and

inexpensive determination of every action.’” Celotex Corp. v.
Catrett, 477 U.S. 317, 327 (1986) (quoting Fed. R. Civ. P. 1;
citation omitted)).
Here,

Defendants

properly

“demonstrate[d]

in

the manner

provided by the Rule [governing summary judgment], prior to trial,
that [Plaintiff’s] claims and defenses have no factual basis.”
Celotex Corp., 477 U.S. at 327. Plaintiff was provided with notice
of the showing she was required to make in order to defeat
Defendants’

motions

for

summary

judgment,

but

she

failed

to

establish the existence of any genuinely disputed material issues

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of fact that would require a trial. The Court therefore adheres to
its conclusion that summary judgment was properly granted.
IV.

Conclusion
For

the

foregoing

reasons,

Plaintiff’s

Motion

Reconsideration is denied.
IT IS SO ORDERED.
S/Michael A. Telesca
______________________________
HON. MICHAEL A. TELESCA
United States District Judge
Dated:

March 16, 2018
Rochester, New York.

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for