Opinion
No. 88 Civ. 5714 (RWS).
October 16, 1989
MEMORANDUM OPINION
Plaintiffs B.A.M. Brokerage Corporation and some one hundred other individuals and corporations licensed to sell insurance in New York (the "Brokers") have moved pursuant to Local Rule 3(j) and Rules 59 and 60 (b), Fed.R.Civ.P., for an order granting reargument of the court's August 4, 1989 opinion, 718 F. Supp. 1195, (the "Opinion") and, upon reargument, denying the defendants' motion for summary judgment. Familiarity with the Opinion is assumed.
A court should grant a motion to reargue under Local Rule 3(j) only if the moving party presents matters or controlling decisions the court overlooked that might materially have influenced the earlier decision. See Gibson v. American Broadcasting Cos., Inc., 700 F. Supp. 707, 708 (S.D.N.Y. 1988); Ruiz v. Commissioner of DOT, 687 F. Supp. 888, 890 (S.D.N.Y.), aff'd, 858 F.2d 898 (2d Cir. 1988). The rule's purpose is to "dissuade repetitive arguments on issues that have already been considered fully by the court." Caleb Co. v. E.I. DuPont De Nemours Co., 624 F. Supp. 747, 748 (S.D.N.Y. 1985). A party should not treat a motion to reargue as a substitute for appealing from a final judgment. See Korwek v. Hunt, 649 F. Supp. 1547, 1548 (S.D.N.Y. 1986), aff'd, 827 F.2d 874 (2d Cir. 1987).
The Brokers' argue that this court overlooked section 2110 of the New York Insurance law when it issued the Opinion. In an affirmation submitted in support of the motion for reargument, the Brokers stated:
2. A copy of [the Opinion] . . . is annexed hereto as Exhibit "A." At page 20 this Court states:
The Brokers argue that Corcoran's practice of adopting the Hearing Officers recommendations without reviewing the transcript or exhibits establish bias. However, nothing in the statute governing Hearing Officers and their reports requires the Superintendent to review the record underlying a Hearing Officer's report. [Citing N.Y. Ins. Law Section 304(a)(b).]
3. However, the statute relied upon and quoted verbatim by the Court only deals with the Superintendent's authority to appoint Hearing Officers, for such persons to report to the Superintendent and the Superintendent's authority to use the report as the basis for the Superintendent's determination. However, N.Y. Ins. Law Section 2110 provides for the Superintendent to make the determinations to revoke licenses and/or suspend the same. The statute requires such determination to be made by the Superintendent, not the Hearing Officer. Thus, while the Superintendent may under Section 304 appoint Hearing Officers and they may make recommendations and reports to him, the duty is still the Superintendent's to make the determination.
Weg Aff. ¶¶ 2-3.
In fact, the Opinion cited section 2110 at page 1197, stating: "Any person who violates section 2117 is subject to a $500 per month forfeiture, [N.Y.Ind. Law § 2117(g) (McKinney 1985)], and a Licensee who violates the Insurance Law is subject to license suspension, revocation and/or civil penalty. See id. at §§ 109, 2110." (Emphasis added).
Moreover, the Brokers' interpretation of section 2110 finds no support in the statute. That section provides that the Superintendent "may refuse to renew, revoke or may suspend for a period he determines the license of any insurance agent [or] insurance broker . . . if, after notice and hearing, he determines that the licensee . . . has [violated the Insurance Law]." (Emphasis added). Section 304(a) provides for a hearing before the Superintendent or "any designated salaried employee of the department authorized by the superintendent for such purpose." Section 304(b) requires the hearing officer to "report his findings, orally or in writing, to the superintendent with or without recommendation" and provides that "[s]uch report, if adopted by the superintendent or by his authority may be the basis of any determination made by the superintendent or by his authority." (Emphasis added). The statute does not require the superintendent to review any portion of the record of a disciplinary hearing. Indeed, it expressly authorizes the superintendent to "adopt" the hearing officer's report — even an oral report — as the basis of his "determination."
The Brokers also argue that the court overlooked relevant case law when it issued the Opinion. However, the New York Insurance Law governs the Superintendent's duties in revoking licenses. The cases the Brokers cite arise under other statutes and thus are irrelevant.
Because the Brokers can point to no matters or controlling authority the court overlooked that would have materially affected the Opinion, the motion for reargument is denied.
The defendants have moved for reasonable costs and attorney's fees under Rule 11, Fed.R.Civ.P. The Brokers' argument attributing a gloss to Section 2110 — although unmerited — is sufficient to avoid sanctions.
The clerk is directed to enter judgment dismissing the complaint with costs to the defendants.
It is so ordered.