Opinion
No. 96 Civ. 8281 (LTS)(MHD)
June 19, 2003
MEMORANDUM AND ORDER
Eric Weiss ("Plaintiff") brought this action pro se against the City of New York ("Defendant"), asserting violations of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12111, et seq., namely to accommodate Plaintiff's disability when Plaintiff was employed by Defendant, and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. By Opinion and Order dated March 31, 2003, the Court granted in its entirety Defendant's motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. By letter dated April 11, 2003, Plaintiff sought reconsideration (and, presumably, vacatur) of the March 31, 2003 Opinion and Order. On May 5, 2003, Plaintiff filed a notice of appeal with the United States Court of Appeals for the Second Circuit.
Motions for reconsideration are governed by S.D.N.Y. Local Civil Rule 6.3. Because Plaintiff's application (construed as a request for vacatur of the grant of summary judgment in Defendant's favor), if granted, would constitute an alteration of the Court's ruling, Plaintiff's Rule 6.3 application will be construed as a motion pursuant Rule 59(e) of the Federal Rules of Civil Procedure. See United States ex rel. McAllan v. City of New York, 248 F.3d 48, 52 (2d Cir. 2001) (a postjudgment motion requesting alteration or amendment of the judgment but denominated as something other than a motion under Rule governing amendment of judgments is generally treated as having been made under that Rule). A motion for reconsideration can be granted if there is an intervening change of controlling law, new evidence becomes available, or there is a need to correct a clear error or prevent manifest injustice. Virgin Atlantic Airways v. Nat'l Mediation Bd., 956 F.2d 1245, 1255 (2d Cir. 1992) (citation omitted). The standard for granting a Rule 59(e) motion is strict and reconsideration is generally denied as a Rule 59(e) motion is not a vehicle for reargument or "`asserting arguments that could and should have been made before judgment issued.'" Katz v. Berisford Int'l PLC, No. 96 Civ. 8695, 2000 WL 1760965, at *5 (S.D.N.Y. Nov. 30, 2000) (citation omitted).
Though Plaintiff has filed a notice of appeal while the motion for reconsideration is pending, the Court is not deprived of jurisdiction. See Woodward v. Hardenfelder, 845 F. Supp. 960, 965 (E.D.N.Y. 1994) (Rule 59(e) motion served in keeping with rule's time requirement comes under district court's jurisdiction, even though appeal is pending in Second Circuit).
Here, none of the grounds raised in Plaintiff's letter provides any appropriate basis for reconsideration. Plaintiff is not entitled to a jury trial because, as explained in the March 31, 2003 Opinion and Order, there is no dispute as to any material fact and Defendant is entitled to judgment as a matter of law. Defendant served a Notice to Pro Se Litigants in connection with the summary judgment motion as required by the Local Rules of this Court, warning Plaintiff of the need to submit evidence in opposition to the motion. Plaintiff's complaints of Defendant's failure to make discovery and his proffer of unspecified additional documentation are untimely. Plaintiff's references to the Civil Service Law and the "Federal Rights Job Act" are inapposite to the claims asserted in his complaint, which are based on the ADA and Title VII. Plaintiff's arguments that he "should have been given restrictive duty or been allowed to retire under the injury" and that "[t]he City never paid any medical bills that they were supposed to under [his] employment" go to relief. Plaintiff, however, has failed to proffer any appropriate basis for reconsideration, much less for alteration of the Court's determination that he is not entitled to relief on the claims raised in his complaint. Finally, Plaintiff has not demonstrated that reconsideration is necessary to prevent manifest injustice.
Accordingly, it is hereby ordered that Plaintiff's motion for reconsideration is denied in its entirety.
SO ORDERED.