Opinion
07 Civ. 11426 (SAS).
July 13, 2010
For Petitioner: Jonathan Sack, Esq., Eric Robert Stem, Esq., Sacks Sacks, LLP, New York, NY.
Plaintiff (Pro Se): Jean P. Simon, New York, NY.
MEMORANDUM OPINION AND ORDER
I. INTRODUCTION
By an Opinion and Order dated June 23, 2010 I awarded Jonathan Sack attorneys' fees and prejudgment interest against Dr. Jean P. Simon in the amount of $102,394.76. Simon — an obstetrician/gynecologist — was the plaintiff in an action before this Court in which he sought residual disability payments from defendant insurance companies due to an injury that allegedly limited his ability to perform professional services. Sack was counsel of record for Simon in that action for approximately thirteen months until he was dismissed on October 28, 2008. Following substitution of counsel and further motion practice, the action was concluded with a settlement in Simon's favor. Simon now moves for reconsideration of this Court's grant of attorneys' fees and prejudgment interest.
See Simon v. Unum, No. 07 Civ. 11426, 2010 WL 2541145 (S.D.N.Y. June 23, 2010).
See 3/11/10 Stipulation of Dismissal with Prejudice.
See 10/28/08 Notice of Substitution of Counsel.
See Simon v. Unum Group, No. 07 Civ. 11426, 2009 WL 2596618 (S.D.N.Y. Aug. 21, 2009); Simon v. Unum Group, No. 07 Civ. 11426, 2009 WL 857635 (S.D.N.Y. Mar. 30, 2009).
See 10/30/09 Order of Discontinuance. The action was subsequently dismissed with prejudice after settlement was finalized. See 3/13/10 Stipulation of Dismissal with Prejudice.
II. APPLICABLE LAW
Motions for reconsideration are governed by Local Rule 6.3 and are committed to the sound discretion of the district court. A motion for reconsideration is appropriate where "the moving party can point to controlling decisions or data that the court overlooked — matters, in other words, that might reasonably be expected to alter the conclusion reached by the court." A motion for reconsideration may also be granted to "`correct a clear error or prevent manifest injustice.'"
See Patterson v. United States, No. 04 Civ. 3140, 2006 WL 2067036, at *1 (S.D.N.Y. July 26, 2006) ("The decision to grant or deny a motion for reconsideration is within the sound discretion of the district court.") (citing McCarthy v. Manson, 714 F.2d 234, 237 (2d Cir. 1983)).
In re BDC 56 LLC, 330 F.3d 111, 123 (2d Cir. 2003) (quotation marks and citation omitted).
RST (2005) Inc. v. Research in Motion Ltd., No. 07 Civ. 3737, 2009 WL 274467, at *1 (S.D.N.Y. Feb. 4, 2009) (quoting Virgin Atl. Airways, Ltd. v. National Mediation Bd., 956 F.2d 1245, 1255 (2d Cir. 1992)).
The purpose of Local Rule 6.3 is to "`ensure the finality of decisions and to prevent the practice of a losing party examining a decision and then plugging the gaps of a lost motion with additional matters.'" Local Rule 6.3 must be "narrowly construed and strictly applied so as to avoid repetitive arguments on issues that have been considered fully by the Court." Courts have repeatedly been forced to warn counsel that such motions should not be made reflexively to reargue "`those issues already considered when a party does not like the way the original motion was resolved.'" A motion for reconsideration is not an "opportunity for making new arguments that could have been previously advanced," nor is it a substitute for appeal.
Grand Crossing, L.P. v. United States Underwriters Ins. Co., No. 03 Civ. 5429, 2008 WL 4525400, at *3 (S.D.N.Y. Oct. 6, 2008) (quoting S.E.C. v. Ashbury Capital Partners, No. 00 Civ. 7898, 2001 WL 604044, at *1 (S.D.N.Y. May 31, 2001)). Accord Commerce Funding Corp. v. Comprehensive Habilitation Servs., Inc., 233 F.R.D. 355, 361 (S.D.N.Y. 2005) ("[A] movant may not raise on a motion for reconsideration any matter that it did not raise previously to the court on the underlying motion sought to be reconsidered.").
United States v. Treacy, No. 08 CR 366, 2009 WL 47496, at *1 (S.D.N.Y. Jan. 8, 2009) (quotation marks omitted). Accord Shrader v. CSX Transp. Inc., 70 F.3d 255, 257 (2d Cir. 1995) (holding that a court will deny the motion when the movant "seeks solely to relitigate an issue already decided").
Makas v. Orlando, No. 06 Civ. 14305, 2008 WL 2139131, at *1 (S.D.N.Y. May 19, 2008) (quoting In re Houbigant, Inc., 914 F. Supp. 997, 1001 (S.D.N.Y. 1996)).
Associated Press v. United States Dep't of Defense, 395 F. Supp. 2d 17, 19 (S.D.N.Y. 2005).
See Grand Crossing, 2008 WL 4525400, at *3.
III. DISCUSSION
Simon raises three issues on this motion for reconsideration. First, he argues that Sack is not entitled to attorneys' fees because he did not comply with New York's letter of engagement rule — which "requires attorneys to provide all clients with a written letter of engagement explaining the scope of legal services, the fees to be charged, billing practices to be followed, and the right to arbitrate a dispute under Rules of the Chief Administrator of the Courts. . . ." This issue was dealt with in the June 23 Opinion and Simon has not submitted any controlling decisions that would require this Court to vacate its determination that a failure to comply with the letter of engagement rule "does not prevent an attorney from recovering fees in quantum meruit provided that the other requirements for such recovery are satisfied."
Seth Rubenstein, P.C. v. Ganea, 833 N.Y. S.2d 566, 570 (2d Dep't 2007) (citing 22 NYCRR 1215.1).
Simon, 2010 WL 2541145, at *3 (citing Miller v. Nadler, 875 N.Y.S.2d 461, 462 (1st Dep't 2009); Chase v. Bowen, 853 N.Y.S.2d 819, 819 (4th Dep't 2008); Seth Rubenstein, P.C., 833 N.Y.S.2d at 572).
The only two New York cases cited by Simon are trial court decisions that predate the appellate court decisions cited in the June 23 Opinion. The first, Altman v. Myers, is a New York Supreme Court case wherein the court specifically notes that it was "aware of no appellate authority on the issue of whether the failure to comply [with the letter of engagement rule] prevents recovery." Since that decision, several appellate courts have held that an attorney's failure to comply with the letter of engagement rule does not bar recovery in quantum meruit. The second, Beech v. Lefcourt, is a New York City Civil Court case with which the Second Department Appellate Division has explicitly disagreed. Second, Simon argues that Sack is not entitled to attorneys' fees because he was discharged for cause. Simon is correct that an attorney is not entitled to legal fees if he or she is discharged for cause. However, this issue was already dealt with in the July 23 Opinion and Simon has not submitted "any controlling decisions or data that the court overlooked. . . ." Simon has simply regurgitated several arguments that have already been considered and rejected by this Court.
No. 05 Civ. 604401, 2006 N.Y. Misc. LEXIS 4418, at *16 (Sup. Ct. N.Y. Co. Sept. 18, 2006).
See, e.g., Miller, 875 N.Y.S.2d at 46.
820 N.Y.S.2d 841 (Civ. Ct. N.Y. Co. 2006),
Seth Rubenstein, P.C., 833 N.Y.S.2d at 572.
See Universal Acupuncture Pain Servs. v. Quadrino Schwartz, P.C., 370 F.3d 259, 263 (2d Cir. 2004) (citing Teichner by Teichner v. W J Holsteins, Inc., 64 N.Y. 2d 977, 979 (1985)).
See Simon, 2010 WL 2541145, at *3.
In re BDC, 330 F.3d at 123 (quotation marks and citation omitted).
Third, Simon argues that prejudgment interest on the attorneys' fees award should have been calculated from the date of settlement rather than the date of discharge. Simon cites Klein v. Eubank in support of that proposition. I respectfully disagree with this decision — which is not controlling. "Under New York law, a lawyer's right to recover in quantum meruit accrues immediately upon discharge" and interest is "computed from the earliest date the cause of action [for attorneys' fees] existed." Accordingly, interest properly accrues from the date of discharge.
693 N.Y.S.2d 541, 541 (1st Dep't 1999).
Universal Acupuncture Pain Servs., 370 F.3d at 263 (citing Cohen v. Grainger, Tesoriero Bell, 602 N.Y.S.2d 788, 789 (1993)) (other citations omitted).
New York Civil Practice Law and Rules § 5001.
See D'Jamoos v. Griffith, 340 Fed. Appx. 737, 742 (2d Cir. 2009) ("Moreover, the district court's decision to award prejudgment interest at New York's statutory rate from the date on which [the attorney] was discharged was also appropriate."); Olgetree, Deakins, Nash, Smoak Stewart P. C. v. Albany Steel Inc., 663 N.Y.S.2d 313, 315-16 (3d Dep't 1997) (stating that interest on attorneys' fees recovered in quantum meruit should be calculated from the date of the final bill — which was the date when the law firm "completed all of its legal services for defendant").
IV. CONCLUSION
For the reasons stated in this Opinion, Simon's motion for reconsideration is denied. The Clerk of Court is directed to close this motion (Docket No. 89).
SO ORDERED: