Opinion
02 Civ. 1089(DFE)
November 3, 2003
OPINION AND ORDER
In response to my latest Opinion and Order, Varone v. City of New York, 2003 WL 22232936 (S.D.N.Y. Sept. 26, 2003), the defendants have submitted a motion for reconsideration. Pursuant to Local Civil Rule 6.3, their deadline to serve such a motion was October 10. Instead, they served it by regular mail on Sunday October 12. Moreover, its main argument is one that was not contained in their lengthy brief served on September 14.
It is improper to make new arguments on a motion for reconsideration, although such a motion may be granted to "correct a clear error or prevent manifest injustice." Greenwald v. Orb Communications Marketing, Inc., 2003 WL 660844 (S.D.N.Y. Feb. 27, 2003) (Swain, J., collecting cases). I find that those quoted words do not describe the case at bar. The defendants' new argument runs as follows:
(a) Under New York law, collateral estoppel will not bar reconsideration of an issue if there was an inability to obtain appellate review. See Johnson v. Watkins, 101 F.3d 792, 795 (2d Cir. 1996).
(b) When the New York City Civil Service Commission issued its 1999 order that HRA reinstate Varone within 90 days, HRA had a right to only an "exceedingly limited" appellate review. See N.Y.C. Dept. of Environmental Protection v. N.Y.C. Civil Service Comm., 78 N.Y.2d 318, 323, 574 N.Y.S.2d 664, 666 (Ct.App. 1991).
Subsequent to that 1991 case, two decisions persuade me that, in actual practice, municipal employers have the ability to obtain meaningful, albeit limited, appellate review from orders of reinstatement issued by a municipal Civil Service Commission. In Acevedo v. Brown, 195 A.D.2d 164, 606 N.Y.S.2d 691 (1st Dept. 1994), the New York City Civil Service Commission ordered the City to reinstate Angel Acevedo as a police officer in 1987. The City reinstated him in 1988 but discharged him in 1989. He brought an Article 78 proceeding and Justice Wright ordered reinstatement. The First Department affirmed in 1994, and wrote: "Having charted their procedural course by failing to seek further review of the Civil Service Commission's 1987 decision, the respondents [the City and its Police Commissioner] should not now be heard to complain. . . ." ( 606 N.Y.S.2d at 693.)
In Board of Educ. of Yonkers v. Yonkers Muni. Civil Service Commission, 248 A.D.2d 613, 670 N.Y.S.2d 507 (2d Dept. 1998), the municipal employer successfully obtained review of two reinstatement orders issued by the Yonkers Municipal Civil Service Civil Service Commission. Both times, the municipal employer lost before a Supreme Court justice but persevered and won before the Appellate Division.
In the case at bar, Varone presented evidence of his disability as an affirmative defense before the Administrative Law Judge and before the New York City Civil Service Commission. The Commission implicitly found that Varone had proven his disability. In 1999, by a vote of 3-1, the Commission ordered HRA to reinstate Varone and to "determine a work schedule . . . that takes into account . . . [Varone's] right to a reasonable accommodation per the ADA." HRA was the prevailing party as to back pay, but it was the losing party as to reinstatement and as to Varone's right to a reasonable accommodation. If HRA felt that Varone did not have a disability within the meaning of the disability laws, then it should have moved for reconsideration or rehearing, and, if that failed, brought an Article 78 proceeding. Instead, knowing that Varone was assertive and litigious, HRA delegated Fecci and Bresler to supervise Varone and to comply with the Commission's order.
For the reasons set forth above, I deny the defendants' motion for reconsideration (Docket Item #44) and I adhere to my prior decision. Plaintiff's October 22 papers included 3-cross-mction, but it was operative only if I did not adhere to my prior decision. Hence, I deny the cross-motion (Docket Item #46).
On another topic, my prior decision said: . . . I think the parties should stipulate to the jury that, whenever anyone referred to the ADA, the parties generally understood the reference to include the City Human Rights Law provisions about disability discrimination.2003 WL 22232936, at *1. If any party is unwilling to so stipulate, then that party must serve and file, by November 7, 2003, a statement of its reasons.