Opinion
98-CV-6347CJS(F)
September 26, 2003
Michael A. Rosenhouse, Esq., Pittsford, New York, for Plaintiff Louanne G. Melvin as Executor
Arthur A. Marapese, III, Esq., Buffalo, NY, for Plaintiff Louanne G. Melvin Individually
Robert T. DiGiulio, Esq. Laurie A. Dorywalsky, Esq., Osborne Reed Burke, LLP, Rochester, New York, for Defendants
DECISION and ORDER
INTRODUCTION
This is a multi-employer pension benefit case in which the Court previously granted partial summary judgment. Decision and Order, entered on March 7, 2002 (# 90), Melvin v. UA Local 13 Pension Plan, 204 F. Supp.2d 564 (W.D.N.Y. 2002) (" Melvin I"). The case is back before the Court on motion (# 109) of plaintiff for entry of a declaratory judgment based on the Court's prior decision and voluntary dismissal of the causes of action left pending after that decision. Also before the Court is defendants' application (# 116), asking the Court to reconsider its prior decision, partially granting plaintiff summary judgment, and denying their motion for summary judgment, based on a change in the controlling law, see Langman v. Laub, 328 F.3d 68 (2d Cir. 2003), and the necessity of preventing manifest injustice. For the reasons stated below, the Court grants, in part, plaintiff's motion, and grants defendants' motion.
BACKGROUND
The full factual background of this case was set forth in the Court's prior decision and order, Melvin I, 204 F. Supp.2d 564, and familiarity with that decision will be presumed. For the purpose of the motions now before the Court, the following facts are relevant.
Plaintiff, who is now deceased, was a member of UA Local 13 and employed within the plumbing and pipefitting industry from 1967 until his retirement in 1998. He was a member of the UA Local 13 Pension Plan ("Plan") for that entire period. For most of this time plaintiff was employed under the terms of a collective bargaining agreement negotiated between UA Local 13 and plaintiff's employers. However, for thirty-nine months, from November 23, 1981 to March 1, 1985, plaintiff worked as a salesman for a plumbing contractor, a position not covered by the collective bargaining agreement.
Upon plaintiff's retirement, the Plan took the position that the thirty-nine month period from November 23, 1981 to March 1, 1985, during which he was employed as a salesman for the plumbing contractor, constituted a break in service for the purpose of determining his accrued pension benefits. In calculating plaintiff's pension benefits, the Plan gave him credit for fourteen years of service at the rate in effect in 1981, i.e., $20.00 per month per year of service, and for eleven years of service at the rate in effect in 1998, i.e., $116.00 per month per year of service. The total monthly benefit to which plaintiff was entitled, according to the Plan, was $1,571.30 per month. Plaintiff, however, contended that his entire monthly benefit should be calculated at the rate of $116.00 per month per year of service, entitling him to a total monthly benefit of $2,915.30.
The Plan calculation uses 11.1319 years at $116.00 and 14 years at $20.00. Plaintiff's calculation is 25.1319 years at $116.00.
The Court granted plaintiff partial summary judgment in its Decision and Order(# 90) of March 7, 2002. Since some causes of action remained pending, no final judgment was entered. For reasons not clear to the Court, plaintiff did not seek the declaratory relief, which is the subject of her current application, until April 16, 2003. Plaintiff's representative (now substituted as plaintiff) moves for dismissal of the pending causes of action to enable entry of judgment based on the Court's prior order. Defendants oppose the motion, and seek reconsideration of the granting of summary judgment to plaintiff based on the Second Circuit's May 6, 2003, holding in a factually-similar case.
In a September 18, 2003, letter to the Court, plaintiff's individual counsel, Arthur A. Marrapese, III, represented to the Court that plaintiff's individual interests and the interests of the estate are not in conflict.
ANALYSIS
A. Summary Judgment StandardThe law on summary judgment is well settled. Summary judgment may only be granted if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). That is, the burden is on the moving party to demonstrate that the evidence creates no genuine issue of material fact. Chipollini v. Spencer Gifts, Inc., 814 F.2d 893 (3rd Cir. 1987) ( en banc). Where the non-moving party will bear the burden of proof at trial, the party moving for summary judgment may meet its burden by showing the "evidentiary materials of record, if reduced to admissible evidence, would be insufficient to carry the non-movant's burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986). Once the moving party has met its initial obligation, the opposing party must produce evidentiary proof in admissible form sufficient to raise a material question of fact to defeat a motion for summary judgment, or in the alternative, demonstrate an acceptable excuse for its failure to meet this requirement. Duplantis v. Shell Off-Shore, Inc., 948 F.2d 187 (5th Cir. 1991); Fed.R.Civ.P. 56(f).
Once the moving party has met its burden, mere conclusions or unsubstantiated allegations or assertions on the part of the opposing party are insufficient to defeat a motion for summary judgment. Knight v. United States Fire Ins. Co., 804 F.2d 9 (2d Cir. 1986). The court, of course, must examine the facts in the light most favorable to the party opposing summary judgment, according the non-moving party every inference which may be drawn from the facts presented. International Raw Materials, Ltd. v. Stauffer Chemical Co., 898 F.2d 946 (3d Cir. 1990). However, the party opposing summary judgment "may not create an issue of fact by submitting an affidavit in opposition to a summary judgment motion that, by omission or addition, contradicts the affiant's previous deposition testimony." Hayes v. New York City, Department of Corrections, 84 F.3d 614, 619 (2d Cir. 1996).
B. Legal Standards
1. Law of the Case Doctrine
The Law of the Case doctrine is one that "`posits that when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case.'" Christianson v. Colt Industries Operating Corp., 486 U.S. 800, 816 (1988) (quoting Arizona v. California, 460 U.S. 605, 618 (1983) (dictum)). "This rule of practice promotes the finality and efficiency of the judicial process by `protecting against the agitation of settled issues.'" Id. (quoting 1B J. Moore, J. Lucas, T. Currier, Moore's Federal Practice P0.404[1], p. 118 (1984)). The doctrine applies to "an issue or issues that have actually been decided explicitly or by necessary implication." 18 MOORE'S FEDERAL PRACTICE, § 134.20[3] (Matthew Bender 3d ed.). In the case of an interlocutory appeal, the Law of the Case doctrine applies as well, but only to matters actually decided. Id., § 134.20[4]. The doctrine does not, however, limit "a court's power to revisit an issue if the court feels such review is necessary," id., § 134.21[3][a], or when a higher court to which the lower court "owes obedience issues an opinion directly on point and irreconcilable with the [lower court's] earlier decision, [then] the [lower] court is to disregard the law of the case and apply the new precedent." Id. § 134.21 [3][b]; see North River Ins. Co. v. Philadelphia Reinsurance Corp., 63 F.3d 160, 162 (2d Cir. 1995).
Though the case is not on appeal before the Court, the situation is analogous.
2. Standard for Reconsideration
The Court's prior Decision and Order did not completely dispose of all pending claims, hence, was not a final, appealable order. See Leddy v. Standard Drywall, Inc., 875 F.2d 383, 386-87 (2d Cir. 1989). Thus, the parties here may ask the Court to reconsider its prior ruling. See, generally, 11 MOORE'S FEDERAL PRACTICE, § 56.30[8][e] (Matthew Bender 3d ed.). The Court must consider the record as it exists at the time of the motion to reconsider, not just the materials before it at the time of the initial summary judgment decision. Id. "However, evidence that was available at the time of the challenged order, but not timely submitted, does not warrant reconsideration on the grounds of newly discovered evidence, although one of the other bases for reconsideration would not be precluded by this failure. . . ." Id.
In addition, "`where litigants have once battled for the court's decision, they should neither be required, nor without good reason permitted, to battle for it again.'" Virgin Atlantic Airways, Ltd. v. National Mediation Bd., 956 F.2d 1245, 1255 (2d Cir. 1992) (quoting Zdanok v. Glidden Co., 327 F.2d 944, 953 (2d Cir. 1964)). The major grounds justifying reconsideration are "an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice." Id. (quoting 18 C. Wright, A. Miller E. Cooper, Federal Practice Procedure § 4478 at 790) (other citation omitted)).
C. Defendants' Motion for Reconsideration
1. Reviewing the Trustees' Decision de novo
The Court previously held that because the relevant 1989 Plan document did not give full discretion to the plan administrator, under Firestone Tire Rubber Co. v. Bruch, 489 U.S. 101 (1989), the Trustees' decision regarding plaintiff's benefits was not entitled to discretionary review, but, instead, would be reviewed de novo. Defendants now argue in their application for reconsideration that, although the terms of the Plan do not specifically give full discretion to the plan administrator, the trust instrument that established the trust did give the Trustees "full authority and exclusive authority to determine all questions of coverage and eligibility. . . ." Restated Agreement and Declaration of Trust (effective December 1, 1975), Art. V, Section 17 (quoted in Defendants' Memorandum of Law (#117) at 23-24).
The Plan Administrator is the Board of Trustees of the UA Local 13 Pension Fund. Plan section 14.1 (1989).
The trust agreement upon which defendants' now rely was before the Court on the initial motion; however, the parties focused on the 1989 Plan. Melvin v. UA Local 13 Pension Plan, 204 F. Supp.2d 564, 566 (W.D.N.Y. 2002) ("Counsel agree that the Plan, as amended on January 1, 1989, is the Plan under consideration in this case"). The Restated Trust Agreement and Declaration of Trust of the U.A. Local 13 Pension Fund, signed on May 6, 1977, contains the following:
Construction and Determinations by Trustees. Subject to the stated purposes of the Fund and the provisions of this Agreement, the Trustees shall have full and exclusive authority to determine all questions of coverage and eligibility, methods of providing or arranging for benefits and all other related matters. They shall have full power to construe the provisions of this Agreement, the terms used herein and the by-laws and regulations issued thereunder. Any such determination and any such construction adopted by the Trustees in good faith shall be binding upon all of the parties hereto and any Beneficiaries hereof.
Restated Trust Agreement and Declaration of Trust of the U. A. Local 13 Pension Fund, (May 6, 1977), Article V, Section 17. The Agreement also directs the Trustees to prepare a pension plan in the following section:
Establishment of Pension Plan. The Trustees shall formulate a Pension Plan for the payment of such retirement pension benefits, permanent disability pension benefits, death benefits, and related benefits, as are feasible. Such Pension Plan shall at all times comply with all applicable federal statutes and regulations into the provisions of this Trust Agreement.
Restated Agreement and Declaration of Trust of the U. A. Local 13 Pension Fund, (May 6, 1977), Article V, Section 22.
The 1989 Plan states in the Preamble, "[e]ffective January 1, 1989, the Plan has been amended and restated in its entirety to read as set forth herein." As previously discussed, the 1989 Plan does not contain the provision quoted above from the 1977 Agreement. Defendants' argument in their application for reconsideration is that the 1977 Agreement remains in effect. The Court agrees. The 1989 Plan refers to the Agreement in the Definitions section as follows:
"Agreement and Declaration of Trust" shall mean the Agreement dated August 1, 1954, which established the U.A. Local 13 Pension Fund, and the Restated Agreement and Declaration of Trust dated May 6, 1977, and as amended from time to time.
Plan § 1.3. If the Agreement and Declaration of Trust gave the trustees the power to create the Plan, as clearly it did, and gave those same trustees full and exclusive authority to interpret the terms for the Agreement and Declaration of Trust, it is illogical to conclude that the Trustees did not have full and exclusive authority to interpret the Plan document they created. The need to correct a clear error or prevent manifest injustice requires that the Court reverse its previous holding that the Trustees' decision was not entitled to review under the arbitrary and capricious standard.
2. The Plan as a Contract
Defendants also invite the Court to revisit its prior Decision and Order finding an apparent conflict between Plan sections 4.4 and 3.3(c). As the Court wrote in its prior decision, during oral argument both counsel agreed that the Plan is a contract. The Court determined that Plan section 3.3(c), which restored an employee's pre-break service, appeared to conflict with section 4.4, which severely limited the restoration. The Court then applied the rule promulgated in Firestone, 489 U.S. at 112, interpreting the Plan to make sense of both section 3.3(c) and section 4.4. By interpreting Plan section 4.4 as applicable only to those who experience a break in service, but whose pre-break years are not restored pursuant to the terms of Plan section 3.3(c), the Court found that any apparent ambiguity was resolved and this interpretation gave meaning to all the terms of the Plan, as required by the standards of law laid out in Firestone.
However, because the Court has now determined that the Trustees, as the Plan Administrator, had discretionary authority to construe and interpret the terms of the Plan. Under ERISA, therefore, the Court is limited to the "arbitrary and capricious" standard of review. Firestone Tire Rubber Co., 489 U.S. at 103. The Court's prior decision to the contrary, that the Plan does not give full discretion to the plan administrator, Melvin I, 204 F. Supp.2d at 569, must be reversed.
Under the deferential arbitrary and capricious standard, the Court "may overturn a decision to deny benefits only if it was without reason, unsupported by substantial evidence or erroneous as a matter of law." Pagan v. NYNEX Pension Plan, 52 F.3d 438 (2d Cir. 1995). As the Second Circuit explained in Pagan, "this scope of review is narrow, thus we are not free to substitute our own judgment for that of the [Plan Administrator] as if we were considering the issue of eligibility anew." Id.; see also Peterson v. Cont'l Cas. Co., 282 F.3d 112, 117 (2d Cir. 2002) ("It is well established that federal courts have a narrow role in reviewing the discretionary acts of ERISA plan administrators"). The Court must, therefore, consider whether the Plan Administrator's "decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment," mindful that the Court is not allowed to "upset a reasonable interpretation by the administrator." Zuckerbrod v. Phoenix Mut. Life Ins. Co., 78 F.3d 46, 49 (2d Cir. 1996) (citation and quotation marks omitted).
Plan section 3.3 discusses a break in service and defines it as any Plan year after July 31, 1976, in which an employee fails to accrue at least eighty-one hours of service. Exceptions are made for an employee on active duty in the armed forces of the United States, or for one serving as a union official. Section 3.3(c) reads in pertinent part as follows:
As amended by Amendment No. 9 (June 9, 1997).
If a Participant incurs a Break in Service on or after August 1, 1976 and, subsequently, becomes an Active Participant and eligible to participate in this Plan as set forth in Article II, his prior service shall be reinstated if (1) the Participant was Vested in his Accrued Benefit when he became a Nonactive Participant, or (2) the Break in Service is less than the Participant's prior service plus one. For Active Participants who have had an hour of service on or after January 1, 1988, and who have had a Break in Service after that date, and subsequently, become an Active Participant and eligible to participate in this Plan as set forth in Article II, his prior service shall be reinstated if he either meets the above conditions or if his Break in Service is (5) years or fewer.
In addition to the break in service provision, the Plan also contains Article IV, Accrued Benefit, section 4.4, which reads as follows:
If an Active Participant has incurred a Break in Service, the Accrued Benefit for any Credited Service earned prior to the Break in Service is equal to the Monthly Unit of Benefit in effect at the time the Break in Service occurred times the Credited Service at that date.
The Trustees' interpretation of these sections is that Mr. Melvin's break in service froze his pre-break benefit level at the rate in effect at that time, multiplied by the number of years of pre-break service. That accrued benefit remains forever frozen at the lower pre-break rate for those pre-break years of service. Though the Court reached a different conclusion when it reviewed the Trustees' decision of novo, applying the deferential standard that it must, the Court cannot conclude that the Trustees' interpretation is without reason, unsupported by substantial evidence, or erroneous as a matter of law. Therefore, the Court reverses its earlier ruling on the issue, Melvin I, 204 F. Supp.2d at 570, and upholds the Trustees' decision on this point.
3. Application of the Second Circuit's Decision in Langman
In it's prior Decision and Order, the Court determined that based on the Trustees' interpretation of the break in service provision of the Plan, the Plan violated the 1331/3 percent backloading test of the Employee Retirement Security Act ("ERISA") § *, 29 U.S.C. § 1054. The Court of Appeals subsequently issued its decision in Langman v. Laub, 328 F.3d 68 (2003). In Langman, the Second Circuit held that the plan at issue did not violate the 133 1/3 percent test when it froze Langman's benefits at a lower accrual rate for years of service prior to a break in service, and applied a higher accrual rate for years of service subsequent to the break in service. Citing the same language from the legislative history relied upon by this Court in its prior decision, the Second Circuit ruled that ERISA's anti-backloading provisions were "irrelevant to across-the-board increases in benefit rates made at some future time on behalf of all current employees regardless of period of service." Id. at 71. In response, however, plaintiff argues that Langman does not require a different decision regarding the 133 1/3 percent test. The Court disagrees and will reconsider that portion of its prior decision.
The Court understood defendants' argument on the summary judgment motions to be that the increases in the benefit rate from August 1, 1954 until December 31, 1981 were gradual and based on "externalities." See Melvin, 204 F. Supp.2d at 573. Defendants have since revised their original argument, and now state that the increases in the benefit rate were applied across the board and were not unfairly weighted against shorter-term employees, thus, did not violate ERISA's 133 1/3 percent anti-backloading provision. The Court agrees with defendants and plaintiff that the Langman decision effectively reverses the Court's prior ruling pertaining to the 1331/3 percent test. Nonetheless, plaintiff argues in his memorandum in opposition, at 21, and supporting affidavit, that viewing the benefit rate applicable to Mr. Melvin conclusively establishes that this Plan nevertheless violates that 1331/3 percent test. This argument is unpersuasive.
ERISA requires a defined benefit plan, such as the one here, to satisfy, inter alia, the following benefit accrual requirement (the 1331/3 percent test):
The two other tests in the statute were not argued by defendants-only the 1331/3 percent test was advanced by them.
(b)(1)(B) A defined benefit plan satisfies the requirements of this paragraph of a particular plan year if under the plan the accrued benefit payable at the normal retirement age is equal to the normal retirement benefit and the annual rate at which any individual who is or could be a participant can accrue the retirement benefits payable at normal retirement age under the plan for any later plan year is not more than 1331/3 percent of the annual rate at which he can accrue benefits for any plan year beginning on or after such particular plan year and before such later plan year. For purposes of this subparagraph —
(i) any amendment to the plan which is in effect for the current year shall be treated as in effect for all other plan years;
(ii) any change in an accrual rate which does not apply to any individual who is or could be a participant in the current year shall be disregarded;
(iii) the fact that benefits under the plan may be payable to certain employees before normal retirement age shall be disregarded; and
(iv) social security benefits and all other relevant factors used to compute benefits shall be treated as remaining constant as of the current year for all years after the current year.29 U.S.C. § 1054(b)(1)(B). Plaintiff has submitted what she entitles a "rough application" showing that Mr. Melvin's actual accrual rate compared to year one was 133.46% in the tenth year after returning from a break in service (and the 24th year of service overall). Rosenhouse aff. (# 124) Ex. A. Plaintiff concludes the chart with an observation that,
"The term `normal retirement age' means the earlier of — (A) the time a plan participant attains normal retirement age under the plan, or (B) the later of — (i) the time a plan participant attains age 65, or (ii) the 5th anniversary of the time a plan participant commenced participation in the plan." 29 U.S.C. § 1002(24).
"The term `normal retirement benefit means the greater of the early retirement benefit under the plan, or the benefit under the plan commencing at normal retirement age. The normal retirement benefit shall be determined without regard to — (A) medical benefits, and (B) disability benefits not in excess of the qualified disability benefit For purposes of this paragraph, a qualified disability benefit is a disability benefit provided by a plan which does not exceed the benefit which would be provided for the participant if he separated from the service at normal retirement age. For purposes of this paragraph, the early retirement benefit under a plan shall be determined without regard to any benefit under the plan which the Secretary of the Treasury finds to be a benefit described in section 204(b)(1)(G) [ 29 USCS § 1054(b)(1)(G)]." 29 U.S.C. § 1002(22).
the plan flunks the 1331/3 percent test for 1985 because the annual rate at which an individual who is a participant can accrue retirement benefits payable at normal retirement age under the plan for a later plan year (here, year 10) is more than 1331/3 percent of the annual rate at which he can accrue benefits in 1985, the year of the test (year 1).Id. Plaintiff's example parallels the argument the Second Circuit rejected in Langman. Plaintiff's chart would show the same "violation" if the nominal benefit rate was increased from $40 per year to $100 per year in year two, yet such an increase, applied across the board to all employees in year two, would not, according to Langman, violate the 1331/3 percent test, notwithstanding that the increase would be approximately 135 percent. Therefore, the Court holds that the Plan here meets the 1331/3 percent test notwithstanding the application of a lower benefit rate to plaintiff's pre-break years of service.
4. Other ERISA Considerations
Defendants argue on their motion for reconsideration that the Trustees did not disregard Mr. Melvin's pre-break years of service and that the break in service provision in Article IV "is used for the narrow purpose of limiting the retroactive aspect of an across the board benefit improvement to post-Break service." Defs.' Reply Mem. of Law in Supp. of their Mot. for Recons. of Interlocutory Order and Decision, at 7 (emphasis in original).
Accrued benefits refer to those normal retirement benefits that an employee has earned at any given time during employment. 29 U.S.C. § 1002(23)(A). Vested benefits are those normal retirement benefits to which an employee has a nonforfeitable right, "in other words, those accrued benefits he is entitled to keep." McDonald v. Pension Plan of the NYSA-ILA Pension Trust Fund, 320 F.3d 151, 156 (2d Cir 2003); 29 U.S.C. § 1002(19). ERISA § 204 sets forth the three tests designed to ensure a plan meets the minimum benefit accrual requirements. As stated above, the Plan here meets the 133 1/3 test. ERISA § 203 sets forth the minimum vesting standards, requiring that each plan "provide that an employee's right to his normal requirement benefit is nonforfeitable upon the attainment of normal retirement age," and, applicable here, makes nonforfeitable an employee's accrued benefit derived from employer contributions when the employee has completed at least five years of service. 29 U.S.C. § 1053.
The Plan at issue satisfies both requirements. The Second Circuit has found ERISA § 204(b) is unambiguous and treats accrued and vested benefits differently. McDonald, 320 F.3d at 159. As its decision in Langman made clear, ERISA does permit a plan to treat pre- and post-break years of service differently for the purposes of benefit accrual. Langman, 328 F.3d 68. The Second Circuit also established in McDonald that Congress intended to treat accrued benefits and vested benefits differently and held that there was no need to rely on secondary sources to interpret the statutes, such as regulations from the Departments of Treasury and Labor. McDonald, 320 F.3d at 159. In view of these decisions, made after this Court's decision in Melvin I, the Court must also reverse its holding that, "Congress intended pre- and post-break service to be accumulated for purposes of both vesting and accrual of benefits." Melvin I, 204 F. Supp.2d at 575.
D. Plaintiff's Motion for a Declaratory Judgment
In her motion (# 109) for entry of final judgment Plaintiff, seeks seven distinct forms of relief: (1) an order directing the Clerk to enter judgment consistent with the Court's prior Decision and Order of March 7, 2002, directing calculation of Mr. Melvin's retirement benefit as the sum of his years of service times the benefit rate in effect at the time of his retirement; (2) equitable relief in the form of a declaratory judgment and injunction requiring defendants to "disgorge to the Executor" income the Plan earned on Mr. Melvin's pension for the two-year period from March 1, 1998 to March 1, 2000, along with pre-judgment interest; (3) a declaratory judgment annulling the Trustees' March 2000 determination that Mr. Melvin had a two-year break in service and awarding plaintiff a pension "reflecting the monthly unit of benefit in effect in March 2000 rather than the unit of benefit in effect in 1998"; (4) an order directing entry of final judgment in plaintiff's favor for $ 190,255.89, plus interest at nine percent from April 30, 2003; (5) that judgment be entered in favor of Louanne Melvin individually; (6) that judgment also be entered in favor of the Executor; (7) that the Court enter an order of voluntary dismissal of the pending causes of action (Fourth, Fifth, Seventh and Ninth) without prejudice to her right to claim attorney's fees for time expended in obtaining all the Plan documents in the context of the present litigation. Pl.'s Notice of Mot. (# 109) at 1-2.
In view of the Court's decision, however, all but the seventh of plaintiff's requests for relief are rendered moot. At oral argument, defendants indicated they did not oppose plaintiff's motion to voluntarily dismiss the Fourth, Fifth, Seventh and Ninth causes of action and the Court granted the motion. Thus, with the Court's decision today awarding summary judgment to defendants on the remaining causes of action, the case is now closed.
CONCLUSION
The Court grants plaintiff's motion [# 109] made in court on August 28, 2003, to dismiss the Fourth, Fifth, Seventh and Ninth causes of action, denies as moot plaintiff's motion (# 109) for a declaratory judgment, and grants defendants' motion (# 116) to reconsider. Having reconsidered its prior decision in light of the Second Circuit cases that were decided following Melvin I, the Court grants defendants' motion (# 49) for summary judgment and denies plaintiff's motion (# 56) for summary judgment.IT IS SO ORDERED.