Opinion
99-CV-975
January 24, 2001
SIEGEL, KELLEHER KAHN STEVEN C. WISEMAN, ESQ. Buffalo, New York Attorneys for Plaintiff.
WALSH, PERLEY WILKINS KEVIN D. WALSH, ESQ. Buffalo, New York Attorneys for Defendant.
ORDER
In this lawsuit, plaintiff alleges that the late defendant Closson caused a substantial diminution in her investment holdings by making certain negligent misrepresentations with intent to deceive regarding her investments, breaching his fiduciary duty and engaging in self dealing, providing negligent financial advice and inflicting intentional emotional distress to plaintiff in his capacity as her insurance agent, financial advisor, financial planner and accountant concerning numerous financial transactions during the ten year period 1987-1996.
Defendant filed an initial motion to dismiss the complaint pursuant to Rule 12(6)(b) of the Fed.R.Civ.P. on February 18, 2000, but it was found to be improper because it was made after defendant had interposed an answer. The Court contemplated considering defendant's motion as one for judgment on the pleadings as set forth in Rule 12(b), however, when the record disclosed that matters outside the pleadings were presented and the Court-decided not to exclude them, the parties were advised, again under Rule 12(b), that the motion would be treated as one for summary judgment and disposed of as provided in Rule 56. The parties were then given appropriate time frames to present any further documentation that they wished the Court to assess in rendering its decision on the summary judgment motion.
Defendant's motion for summary judgment was denied by order of this Court dated August 31, 2000. On September 22, 2000, defendant filed a motion under Northern District of New York Local Rule 7.1(g) for reconsideration of the Court's order. Plaintiff has entered opposition to this motion.
The denial of summary judgment is an interlocutory order and a court issuing such an order has the discretion to reconsider it at any time prior to final judgment. Catone v. Chestnut, 149 F.3d 156, 159 (2d Cir. 1998); John Simmons Company v. Grier Brothers Company, 258 U.S. 82, 88, 42 S.T. 196, 66 L. Ed 475 (1922).
The standard for granting a motion for reconsideration "is strict, and reconsideration will generally be denied unless the moving party can point to controlling decisions or data that the court has overlooked — matters, in other words that might reasonably be expected to alter the conclusion reached by the court." Shrader v. CSX Transportation, Inc., 70 F.3d 255, 256-57 (2d Cir. 1995). The high burden imposed on the moving party has been established "in order to dissuade repetitive arguments on issues that have already been considered by the court" and "discourage litigants from making repetitive arguments on issues that have been thoroughly considered by the court," . . . "to ensure finality and prevent the practice of a losing party examining a decision and then plugging the gaps of the lost motion with additional matters." Ruiz v. Commissioner of the Department of Transportation of the City of New York, 687 F. Supp. 888, 890 (S.D.N.Y. 1988), modified on other grounds 934 F.2d 450 (2d Cir. 1991); Range Road Music, Inc. v. Music Sales Corp., 90 F. Supp.2d 390, 391-92 (S.D.N.Y. 2000).
A "clearly erroneous" standard of review applies to motions for reconsideration. Generally, the prevailing rule in the Northern District "recognizes only three possible grounds upon which a motion for reconsideration may be granted; they are (1) an intervening change in controlling law, (2) the availability or new evidence not previously available, or (3) the need to correct clear error of law to prevent manifest injustice." In re C-TC 9th Avenue Partnership. 183 B.R. 1, 3 (N.D.N.Y. 1995). "[A]ny litigant considering bringing a motion for reconsideration must evaluate whether what may seem to be a clear error of law is in fact simply a point of disagreement between the Court and the litigant." Id.
New York state's continuous treatment doctrine provides that when a professional's wrongful conduct was part of a continuous course of treatment or representation, accrual of a malpractice action is suspended until the professional relationship is terminated. Defendant's counsel argues that the court inappropriately extended the continuous representation doctrine to the late defendant Closson, who was an insurance agent at the time of his dealings with the plaintiff. He asserts that insurance agents and brokers are not professionals within the meaning of New York's professional malpractice statute, CPLR § 214(6), and, therefore, the statute of limitations for a claim against an insurance agent cannot be extended under this doctrine.
Defendant's counsel further contends that plaintiff's action was not timely commenced because the complaint alleged that the last time Howard Closson fraudulently induced her to purchase a life insurance policy by misrepresenting the size of her estate was on May 18, 1992. If this is correct, the statue of limitations for any claims arising from this transaction expired on May 18, 1998, one year before prior to the commencement of her action, and the time limitation could not have been extended by the application of the continuous representation doctrine.
The arguments of defendant's counsel here are the same as those he previously submitted to and ruled upon by the court.
While it true that Howard Closson was plaintiff's insurance broker, the complaint also alleges that he acted as her accountant, financial advisor and planner and seeks to hold him responsible for breaching these duties. The continuing nature of the professional relationship which plaintiff has alleged could well preclude the applicability of the statue of limitations and presents a factual issue that cannot be resolved by a summary judgment motion.
The Court has neither held nor implied that the continuous representation doctrine applied to the facts of the case at bar in its present posture. The Court did find that the record was insufficiently developed to make an informed determination as to whether the doctrine applied or not. Furthermore, despite the fact that defendant's counsel claims that the doctrine does not apply to insurance brokers, a New York court has held that the continuous representation doctrine may be applied in circumstances where, to hold otherwise, would unjustly penalize the insured for relying on the representations made by its insurance broker,Ben Heller. Inc. v. St. Paul Fire Marine Insurance Company, 107 Misc.2d 687, 689 435 N.Y.S.2d 669, 671 (N.Y. Co. Sup.Ct. 1981), and the Second Circuit Court of Appeals has articulated that the continuous representation doctrine is applicable to insurance brokers. T N PLC. v. Fred S. James Company of New York, 29 F.3d 57, 60 (2d Cir. 1994). Whether the doctrine applies in the instant case awaits further development of the record.
Accordingly, defendant's motion for reconsideration is DENIED.