Opinion
Case No. 02-11389 (REG) Jointly Administered
October 15, 2002
Weil, Gotshal Manges, Counsel for Debtors and Debtors in Possession New York, New York., By: Judy G.Z. Liu, Esq.,
Torre, Lentz, Gamell, Gary Rittmaster, Counsel for Hanover Insurance Company, Jericho, New York., By: Steven H. Rittmaster and Leo Weber, P.C., Chicago, Illinois., By: T. Scott Leo
Akin Gump Strauss Hauer Feld, Counsel to the Informal Committee of Senior Secured Noteholders, New York, New York., By: Ira S. Dizengoff
Kramer Levin Naftalis Frankel, Counsel for the Official Committee of Unsecured Creditors, New York, New York, By: Mitchell A. Seider
DECISION AND ORDER ON MOTION FOR REARGUMENT
Hanover Insurance Company ("Hanover") moves, pursuant to Fed.R.Civ.P. 59, F.R.Bankr.P. 9023, and Rule 9023-1 of the Local Rules of this Court, for reargument with respect to this Court's order, entered on August 6, 2002, granting in part and denying in part Hanover's motion for relief from the stay to permit Hanover to cancel a number of surety bonds that Hanover had issued in favor of debtor Adelphia Business Solutions, Inc. ("ABIZ") and ABIZ affiliates.
Local Rule 9023-1 provides, in relevant part:
A motion for reargument . . . shall set forth concisely the matters or controlling decisions which counsel believes the Court has not considered.
To be entitled to reargument, the moving party "must demonstrate that the court overlooked controlling decisions or factual matters `that might materially have influenced its earlier decision.'" In re Stylesite Marketing, Inc., 2001 WL 13212, *1 (Bankr. S.D.N.Y. 2001) (Bernstein, C. J.) (quoting Anglo-American Ins. Group, P.L.C. v. Calfed, Inc., 940 F. Supp. 554, 557 (S.D.N.Y. 1996)). See also Opinion and Order on Motion for Reargument, In re Lang Communications, L.P., No. 97 B 41212 (REG) (ECF #54) (Bankr.S.D.N.Y. Oct. 5, 2000) (denying motion for reargument, as "the Reargument Motion fails to set forth any such facts or other matters, or controlling decisions, of the type that Federal Rules 59 and 60, and Local Rule 9023-1, require"). Likewise, as Judge Garrity of this Court held in In re Jamesway Corp., 203 B.R. 543 (Bankr.S.D.N.Y. 1996):
Chief Judge Bernstein further noted:
The rule permitting reargument must be narrowly construed to avoid repetitive arguments on issues that the court has already fully considered. Further, the parties cannot advance new facts or arguments, and may not submit affidavits or new material.
Id. (citation omitted).
The only proper ground on which a party may move to reargue an unambiguous order is that the court overlooked `matters or controlling decisions' which, had they been considered, might reasonably have altered the result reached by the court.
Id. at 546. Judge Garrity continued that:
This rule is calculated to "insure the finality of decisions and to prevent the practice of a losing party examining a decision and then plugging the gaps of a lost motion with additional matters."
Id. (quoting Carolco Pictures Inc. v. Sirota, 700 F. Supp. 169, 170 (S.D.N.Y. 1988).
Here, while quoting Local Rule 9023-1 (and evidencing its recognition of the requirements of that Rule), Hanover has failed to identify any factual matter or controlling decisions that the Court overlooked. Its motion amounts in substance to an effort to relitigate the matter based on a new, improved, factual record — forbidden under Stylesite and Jamesway, and the cases cited therein — and to request that the Court revisit issues which, after review of the reargument motion, the Court believes that it fully considered. Motions of this character are not appropriate to obtain a "second bite at the apple."
While the Court fully recognizes Hanover's good faith differences with this Court's determination, the remedy for Hanover's concerns, if Hanover is so advised, is appeal.
The motion is denied.