Starker v. Adamovych

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DOCUMENT

ELECTRONICALLY FILED

DOC #:

Se □□ se

Oscar Starker,

Plaintiff,

15-cv-3691 (AJN)

~ MEMORANDUM

Nataliya Adamovych, et al., OPINION & ORDER

Defendants.

ALISON J. NATHAN, District Judge:

Plaintiff Oscar Starker brought this action against Defendants Nataliya Adamovych, the

City of New York, the New York Police Department, and Detective Lodato, seeking

compensatory damages from Adamovych for malicious prosecution, false arrest, violations of 42

U.S.C. § 1983, libel per se, slander per se, and intentional infliction of emotional distress, and

seeking compensatory damages from City Defendants for violations of 18 U.S.C. § 1983 and for

intentional infliction of emotional distress. On September 30, 2019, the Court issued a

Memorandum Opinion & Order granting Defendants’ motions to dismiss the Complaint without

prejudice. Dkt. No. 118 (“Op.”). The Order stated that if the Defendant wished to file a second

amended complaint, he must do so within 30 days of the September 30, 2019 Order or his

Complaint would be dismissed with prejudice. /d. at 13. Now before the Court are Plaintiff's

motions to vacate the Court’s judgment, for reconsideration of the Court’s September 30, 2019

Order, and to file a second amended complaint. Dkt. Nos. 122, 123. For the reasons set forth

below, Plaintiff’?s motions are DENIED.

I. Background

The Court assumes familiarity with this matter, the factual background of which was

described at length in the Court’s September 30, 2019 Order. See Dkt. No. 118.

II. Legal Standard1

“A motion for reconsideration should be granted only when the [moving party] identifies

an intervening change of controlling law, the availability of new evidence, or the need to correct

a clear error or prevent manifest injustice.” Kolel Beth Yechiel Mechil of Tartikov, Inc. v. YLL

Irrevocable Tr., 729 F.3d 99, 104 (2d Cir. 2013) (internal quotation marks omitted).

Accordingly, unless the moving party points to “matters . . . that might reasonably be expected to

alter the conclusion reached by the court,” reconsideration should generally be denied. Shrader

v. CSX Tranp., Inc., 70 F.3d 255, 257 (2d Cir. 1995). This standard is exigent because

“reconsideration of a previous order is an extraordinary remedy to be employed sparingly in the

interests of finality and conservation of scarce judicial resources.” In re Health Mgmt. Sys., Inc.

Sec. Litig., 113 F. Supp. 2d 613, 614 (S.D.N.Y. 2000) (internal quotation marks omitted). In

addition, “[t]o be successful on a motion for reconsideration, the movant must present matters or

controlling decisions the court overlooked that might materially have influenced its earlier

decision.” Lopez v. Colvin, No. 13-CV-03465 (ALC), 2014 WL 5040285, at *1 (S.D.N.Y. Sept.

1 Plaintiff cites Federal Rules of Civil Procedure 59(e) and 60(b), along with Local Rule 6.3, in his notices of the

motions for reconsideration and to vacate the judgment. See Dkt. No. 122 at 4; No. 123 at 1. In the Southern

District of New York, Local Rule 6.3 provides the standard for a motion for reconsideration. Furthermore, the

standards for a motion pursuant to rule 59(e) and Local Civil Rule 6.3 are identical. See Sigmon v. Goldman Sachs

Mortg. Co., 229 F. Supp. 3d 254, 256 (S.D.N.Y. 2017). Similarly, “[t]he standards governing motions under Local

Rule 6.3 . . . and [Federal Rule of Civil Procedure] 60(b) are the same.” In re Facebook, Inc., IPO Sec. &

Derivative Litig., 43 F. Supp. 3d 369, 373 (S.D.N.Y. 2014), aff’d sub nom. Lowinger v. Morgan Stanley & Co. LLC,

841 F.3d 122 (2d Cir. 2016). Thus, the Court construes Plaintiff’s motions for reconsideration and/or to vacate the

judgment as a motion pursuant to Local Rule 6.3. The Court notes that Plaintiff’s motions are untimely under Local

Rule 6.3, which provides that “a notice of motion for reconsideration or reargument of a court order determining a

motion shall be served within fourteen (14) days after the entry of the Court’s determination of the original motion,

or in the case of a court order resulting in a judgment, within fourteen (14) days after the entry of the judgment.”

See S. & E.D. N.Y.R. 6.3. The motions’ untimeliness provides an additional basis for denial.

28, 2014) (internal quotation marks omitted). A district court “has broad discretion in

determining whether to grant a motion” for reconsideration. Baker v. Dorfman, 239 F.3d 415,

427 (2d Cir. 2000); see also Farez-Espinoza v. Napolitano, No. 08-CV-11060 (HB), 2009 WL

1118098, at *3 (S.D.N.Y. Apr. 27, 2009) (“The decision whether to grant a motion for

reconsideration under Local Rule 6.3 and Federal Rule 59(e) or a motion under Rule 60(b) lies in

the sound discretion of the district court.”).

Plaintiff also moves for leave to file a Second Amended Complaint. “It is well

established that ‘[a] party seeking to file an amended complaint post[-]judgment must first have

the judgment vacated or set aside pursuant to Fed. R. Civ. P. 59(e) or 60(b).’” Metzler Inv.

GmbH v. Chipotle Mexican Grill, Inc., 970 F.3d 133, 142 (2d Cir. 2020) (citation omitted). In

addition, when evaluating excusable neglect under Rule 6(b)(1)(B), the following factors should

be considered: “[1] the danger of prejudice to the [non-movant], [2] the length of the delay and

its potential impact on judicial proceedings, [3] the reason for the delay, including whether it was

within the reasonable control of the movant, and [4] whether the movant acted in good faith.”

Silivanch v. Celebrity Cruises, Inc., 333 F.3d 355, 366 (2d Cir. 2003) (citing Pioneer Inv. Servs.,

Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 392 (1993). The Second Circuit focuses on

the third factor, noting that “the equities will rarely if ever favor a party who fails to follow the

clear dictates of a court rule . . . .” Id. (internal citations omitted).

III. Discussion

The Plaintiff’s motions to vacate the judgment and for reconsideration of the Court’s

prior opinion are based on his theory that the Court overlooked key facts and controlling case

law in ruling against him in its prior opinion. With respect to Defendant Adamovych, Plaintiff

argues that the Court overlooked controlling case law and facts in the record by finding that

Adamovych was not a state actor for the purpose of liability under 42 U.S.C. § 1983. See Dkt.

No. 123 at 6–9. With respect to the City Defendants, meanwhile, the Plaintiff argues that the

Court overlooked facts favorable to him and erred by failing to grant him the opportunity to

conduct discovery before granting qualified immunity to Detective Lodato. See id. at 12–25.

The Plaintiff further argues that the Court overlooked controlling case law that he believes makes

clear that Detective Lodato had neither actual nor arguable probable cause in arresting the

Plaintiff after being notified by a prosecutor that the prosecutor’s office would not move forward

with charges against Plaintiff. See id. at 9–12. In addition, the Plaintiff argues that the Court

erred in dismissing a municipal liability claim against the City on the grounds that the Plaintiff

failed to adequately plead a violation of his constitutional rights; he argues that a finding by the

Court that Detective Lodato was entitled to qualified immunity does not equate to a finding that

Detective Lodato violated Plaintiff’s constitutional right. See id. at 3–5. And finally, the

Plaintiff argues that the Court erred by failing to address municipal liability arising from an

arrest of Plaintiff on May 25, 2014 by Detective Kolenda. See id. at 5–6.

Having considered Plaintiff’s claims and found them to be without merit, the Court

concludes that Plaintiff does not advance convincing grounds for reconsideration. Accordingly,

his motion is denied.

A. The Court Did Not Err in Dismissing Plaintiff’s 42 U.S.C. § 1983 Claim

Against Defendant Adamovych.

Plaintiff first argues that the Court, in dismissing his claim against Defendant

Adamovych for violations of 42 U.S.C. § 1983 by finding that Adamovych was not a state actor,

overlooked authority cited by Plaintiff—Lugar v. Edmondson Oil Co., 457 U.S. 922 (1982) —

asserting the “joint action” test for state actors. See Dkt. No. 123 at 6–9. Plaintiff also argues

that the Court required that conspiracy between Adamovych and state officials be alleged, thus

overlooking other tests for state action. See id. at 8. His arguments are unconvincing. The

Court reviewed the joint participation test for state action under § 1983, see Op. at 12 (citing

Ciambriello v. Cty. of Nassau, 292 F.3d 307, 323-25 (2d Cir. 2002) (discussing and applying the

joint participation/conspiracy test for state action)), after which it determined that liability on this

theory failed because Plaintiff had not alleged that Adamovych was acting in concert with City

Defendants. Id. In doing so, the Court did not hold that the conspiracy theory was the only way

to demonstrate state action; the Court merely referred to conspiracy as one theory of liability.

And contrary to the Plaintiff’s claims, that the Court did not specifically cite Lugar does not in

itself mean that the Court overlooked the controlling case law.

Plaintiff further argues that the Court’s finding that Adamovych “merely suppl[ied]

information to a police officer” overlooks evidence that Adamovych did more than just that. See

Dkt. No. 123 at 7–8. Specifically, Plaintiff asserts that Adamovych fraudulently procured a

temporary order of protection and made more than one false allegation to police, and he argues

that flawed City policies enabled Adamovych. See Dkt. No. 123 at 7-8. However, even in the

Plaintiff’s telling of the facts, Adamovych’s actions in connection with City Defendants simply

consist of supplying information to a police officer; the Plaintiff’s allegations that the

information Adamovych provided to police was false or related to a fraudulently obtained

temporary order of protection do not change this fact. Accordingly, the Court did not overlook

any evidence that would support a contrary conclusion; rather, it reached its conclusion after

analyzing all of the facts and evidence presented to it. The Plaintiff’s allegations as to this claim,

therefore, fail to meet the Second Circuit’s exacting standard for evaluating motions for

reconsideration.

B. The Court Committed No Clear Error in Dismissing Plaintiff’s Claim

Against Detective Lodato for False Arrest or in Dismissing Plaintiff’s

Municipal Liability Claim Against the City.

1. Dismissal of the False Arrest Claim Against Detective Lodato was

Proper.

Plaintiff next argues that the Court erred in dismissing Plaintiff’s § 1983 false arrest

claim against Detective Lodato. In its prior opinion, the Court found that the facts in the record

cited by Plaintiff, viewed in the light most favorable to Plaintiff, established at least arguable

probable cause by Detective Lodato to arrest Plaintiff, thus entitling Detective Lodato to

qualified immunity. See Op. at 8. Indeed, the Court overlooked none of the issues that the

Plaintiff now raises; the Plaintiff’s attempts to relitigate the particular relevance of these facts are

unavailing and provide insufficient grounds for reconsideration.

Plaintiff contends that after Detective Lodato was informed by a prosecutor that Plaintiff

would not be charged due to a “lack of credibility and inconsistencies in [Adamovych’s] story,”

Detective Lodato no longer had even arguable probable cause to arrest Plaintiff. See Dkt. No.

123 at 9–12. In addition, the Plaintiff argues that the Court’s opinion overlooked other facts that

indicated that the complaint by Adamovych was not trustworthy. See id. at 12–18. Plaintiff

points to alleged contradictions in Adamovych’s story on different occasions regarding who the

caller was and what the caller said. See id. at 14–16. And the Plaintiff further claims that he

provided Lodato with exculpatory evidence, including phone records, that indicated

Adamovych’s lack of credibility in prior complaints made to police. See id. at 16–18. But

contrary to the Plaintiff’s assertions, these observations, even if true, do not indicate any error in

the Court’s reasoning and conclusions. On the contrary, for the reasons stated in the Court’s

September 30, 2019 Order and Opinion, and for the reasons discussed below, the facts in the

record cited by Plaintiff, even when viewed in the light most favorable to him, established at

least arguable probable cause by Detective Lodato to arrest Plaintiff, thus entitling Detective

Lodato to qualified immunity. See Dkt. No. 118 at 8.

First, a prosecutor’s pre-arrest determination not to press charges does not eliminate

probable cause to arrest; it merely indicates that the prosecutor did not believe there was proof of

guilt beyond a reasonable doubt. See Rao v. City of New York, No. 14-CV-7422 (RRM) (LB),

2018 WL 1582289, at *5 (E.D.N.Y. Mar. 29, 2018) (“The existence of probable cause turns on

whether there is sufficient evidence that a crime has been committed . . . . An ADA’s decision

not to prosecute, by contrast, does not eliminate the presence of a crime, but rather indicates that

she may need additional evidence to convince a jury beyond a reasonable doubt.”); see also

Quinn v. City of New York, No. 99-CV-7068 (JBW), 2003 WL 1090205 at *4 (E.D.N.Y. Mar.

12, 2003) (“The District Attorney’s failure to prosecute furnishes no support to [plaintiff’s claim

of false arrest]. The validity of an arrest does not depend on a finding of innocence or any other

disposition.”). As the Court has already noted, the prosecutor’s assertion that Adamovych was

not credible in prior complaints was merely one factor to be considered in Detective Lodato’s

probable cause assessment, not a dispositive determination. See Op. at 10. Plaintiff’s reliance

on Simon v. City of New York, meanwhile, which assessed a Fourth Amendment violation where

police detained the plaintiff in contravention to the terms of an arrest warrant, presents a wholly

separate legal issue that does not change the Court’s evaluation of its analysis. See Dkt No. 123

at 10–12; Simon v. City of New York, 893 F.3d 83, 92-96 (2d Cir. 2018).

Furthermore, Plaintiff contends that some inconsistencies in Adamovych’s statements to

police negated probable cause. See Dkt. No. 123 at 14–16. But he overstates the significance of

the inconsistencies in Adamovych’s statements to police, which were not so great as to

substantiate a conclusion that no reasonable officer in Detective Lodato’s position would find

probable cause to arrest. Instead, Detective Lodato’s awareness that Adamovych had a

temporary order of protection against Plaintiff and his subsequent knowledge that Adamovych

made a complaint that Plaintiff violated the order were significant in establishing probable cause.

See Carthew v. Cty. of Suffolk, 709 F. Supp. 2d 188, 197 (E.D.N.Y. 2010). Plaintiff, citing

Florida v. J.L., 529 U.S. 266 (2000), erroneously argues that a tip from an anonymous caller

offering no indicia of reliability in this case is not sufficient to establish probable cause. See Dkt.

No. 123 at 23–24. First, police received a complaint from Adamovych, not from an anonymous

tipster. Second, Adamovych asserted that she received a call from Plaintiff or someone acting on

behalf of Plaintiff, which, if true, would itself lead to a reasonable conclusion that the Plaintiff

had violated the temporary order of protection. Regardless of the Plaintiff’s assessment that the

complaint was false, Detective Lodato acted reasonably in giving weight to Adamovych’s

complaint in determining probable cause. See, e.g., Carthew, 709 F. Supp. 2d at 192 (officer

could reasonably conclude there was probable cause to arrest plaintiff when his wife alleged

plaintiff violated an order of protection and plaintiff entered a building where he knew his wife

would be, despite plaintiff’s explanations to the officer that he did not violate the order).

The Court has also reviewed and addressed Plaintiff’s contentions that Detective Lodato

ignored potentially exculpatory evidence provided to the detective by Plaintiff. See Dkt. No. 118

at 9. As the Court previously explained, Detective Lodato, who already had probable cause to

make the arrest, was not required to investigate “every theoretically plausible claim of innocence

before making an arrest.” Garcia v. Does, 779 F.3d 84, 93 (2d Cir. 2015) (internal quotation

marks omitted). Indeed, as the Second Circuit has made clear, an “officer’s failure to investigate

an arrestee’s protestations of innocence generally does not vitiate probable cause.” Panetta v.

Crowley, 460 F.3d 388, 396 (2d Cir. 2006).

Finally, the Court rejects the Plaintiff’s argument that the Court was obligated to allow

the parties to proceed to discovery. See Dkt No. 123 at 18–25. As the Second Circuit held in

Garcia—on which the Plaintiff primarily relies—“because qualified immunity protects officials

not merely from liability but from litigation, [] the issue should be resolved when possible on a

motion to dismiss, ‘before the commencement of discovery,’ to avoid subjecting public officials

to time consuming and expensive discovery procedures.). Garcia, 779 F.3d at 97 (citing

Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)). The Court’s analysis in its original opinion was

consistent with this general approach. The Plaintiff’s assertion that the Second Circuit in Garcia

“emphasized that attempts to dismiss based on the affirmative defense at the pleading stage

would ‘generally face a difficult road,’” see Dkt. No. 123 at 21, mischaracterizes Garcia’s

holding; Garcia states that the affirmative defense of qualified immunity can be established by

facts alleged in the complaint and should be resolved, if possible, at the motion to dismiss stage

prior to discovery to protect officials from litigation. Garcia, 779 F.3d at 97 (citing Wood v.

Moss, 572 U.S. 744 (2014); Forsythe, 472 U.S. at 526). Here, Detective Lodato knew that

Adamovych had a valid temporary order of protection against Plaintiff and Adamovych

complained to police that Plaintiff or someone acting on his behalf had contacted her in violation

of the order. Accordingly, given the other facts in this case, Detective Lodato had at least

arguable probable cause to arrest Plaintiff. And, as discussed above, that conclusion was in no

way undermined by the Plaintiff’s assertions of his innocence and information from arguably

raised questions about Adamovych’s reliability in past complaints. In sum, the Court again finds

that it properly dismissed the claim against Detective Lodato on grounds of qualified immunity

at the pleading stage.

Finally, Plaintiff argues that the Court overlooked his claim against Detective Lodato for

excessive detention. See Dkt. No. 135 at 7–10. As a preliminary matter, the Plaintiff did not

assert a claim of excessive detention in his amended complaint. See Dkt. No. 34. Even if he

had, however, he alleged no facts to support such a claim. As discussed, Detective Lodato had at

least arguable probable cause to arrest Plaintiff and wait for a formal decision by the assistant

district attorney not to prosecute. Plaintiff alleged that he was held in custody for seven hours

and released without arraignment, and that he later received a letter from the assistant district

attorney stating that his arrest had been dismissed. See Dkt. No. 34 ⁋⁋ 54-55. But detention

prior to arraignment not in excess of 48 hours is “presumptively reasonable” under the Fourth

Amendment; in such cases, the plaintiff bears the burden of showing that delay was

unreasonable. See Case v. City of New York, 233 F. Supp. 3d. 372, 386-87 (S.D.N.Y. 2017).

Thus, the Plaintiff’s seven-hour detention was presumptively reasonable, and Plaintiff did not

assert sufficient facts to support a claim that his detention was unreasonably delayed.

2. There is No Basis to Reconsider the Court’s Dismissal of Plaintiff’s

Municipal Liability Claim Against the City of New York.

Plaintiff also argues that the Court erred in dismissing Plaintiff’s Monell liability claim

for failing to state a claim based on any underlying violation of his constitutional rights.

Specifically, he argues that the Court’s finding that Detective Lodato is entitled to qualified

immunity is not necessarily a finding of probable cause to arrest such that Plaintiff has failed to

state a claim. See Dkt. No. 123 at 3–5. Plaintiff further argues that the Court overlooked his

May 25, 2014 arrest by Detective Kolenda. Id. at 5.

To begin, the Plaintiff correctly argues that while the City cannot be liable under Monell

where Plaintiff is unable to show that the individual tortfeasor committed a federal law tort, “the

entitlement of the individual municipal actors to qualified immunity . . . [is] irrelevant to the

liability of the municipality.” See Askins v. Doe, 727 F.3d 248, 253–54 (2d Cir. 2013). As a

result, finding that Detective Lodato is entitled to qualified immunity does not equate to a finding

that there was no underlying constitutional violation of Plaintiff’s rights for which the City could

be held liable. Here, the Court admittedly declined to evaluate in its September 30, 2019

Opinion whether probable cause actually existed; it only concluded that Detective Lodato was

entitled to qualified immunity because officers of reasonable competence could disagree whether

there was probable cause. Furthermore, with respect to municipal liability arising from

Plaintiff’s May 25, 2014 arrest by Detective Kolenda, Plaintiff is correct that he was under no

obligation to name as parties the individual tortfeasors whose conduct led to a Monell claim

against the City. See Askins, 727 F.3d at 253 (“[T]he plaintiff need not sue the individual

tortfeasors at all, but may proceed solely against the municipality.”). The Court’s September 30,

2019 opinion also did not expressly make any findings as to liability imputed to the City through

the actions of Detective Kolenda.

Nonetheless, reconsideration or vacatur of the judgment is unwarranted because, even if

true, these observations could not “reasonably be expected to alter the conclusion reached by the

court.” Shrader, 70 F.3d at 257. Crucially, Plaintiff’s Monell claim failed because Plaintiff did

not allege facts sufficient to establish municipal liability. To state a Monell claim for municipal

liability under Section 1983, a plaintiff must plausibly allege “(1) actions taken under color of

law; (2) deprivation of a constitutional or statutory right; (3) causation; (4) damages; and (5) that

an official policy of the municipality caused the constitutional injury.” Roe v. City of Waterbury,

542 F.3d 31, 36 (2d Cir. 2008). The fifth element requires that the plaintiff plausibly allege both

the existence of a municipal policy and that the policy caused (i.e. was the “moving force”

behind) plaintiff’s injury. Id. at 37–38. To establish the existence of a municipal policy, a

plaintiff may point to an official policy, practice, or custom that caused his injuries, or he may

identify a practice so “persistent and widespread,” or “permanent and well settled[,] as to

constitute a custom or usage with the force of law” and to “imply the constructive acquiescence

of senior policy-making officials.” Sorlucco v. New York City Police Dep’t., 971 F.2d 864, 870–

71 (2d Cir. 1992) (citation omitted). In addition, a municipality’s failure to supervise, train, or

discipline personnel can give rise to Monell liability if the need to act to prevent rights violations

is so obvious that the failure to do so amounts to a policy of “deliberate indifference.” Reynolds

v. Giuliani, 506 F.3d 183, 192 (2d Cir. 2007).

Even crediting the Plaintiff’s pro se status and reading his claims liberally, the Court was

not presented with facts sufficient to substantiate a finding of municipal liability. To begin with,

Plaintiff did not specify any official policy that caused his alleged constitutional violations. He

cursorily points to NYPD Patrol Guide Section 208-36 (“Patrol Guide”) in his Amended

Complaint, but this is insufficient to establish an official policy here for at least two reasons.

First, the Patrol Guide is not a mandatory arrest policy; instead, it requires that officers have

probable cause prior to arresting an individual. As such, the official policy—to the extent one

exists—cannot be read as having caused any deprivation of constitutional rights, insofar as the

policy expressly requires probable cause prior to effectuating an arrest.

Nor does the Plaintiff fare better with any other theory of a municipal policy or practice.

For one, he did not plead any facts to support the existence of a practice so “persistent or

widespread” as to amount to “custom or usage with the force of law.” Sorlucco, 971 F.2d at

870–71. Indeed, he did not point to a single comparable incident, let alone enough to

substantiate a claim that such practices are persistent or widespread. Along similar lines, the

Plaintiff alleged no facts to support a finding that his alleged injuries were the result of the City’s

failure to supervise, train, or discipline personnel in a way that amounted to a policy of

“deliberate indifference.” Reynolds v. Giuliani, 506 F.3d 183, 192 (2d Cir. 2007). Having failed

to allege facts sufficient to establish the existence of “an official policy of the municipality

caused the constitutional injury,” Roe v. City of Waterbury, 542 F.3d 31, 36 (2d Cir. 2008), the

Plaintiff’s arguments regarding the Court’s analysis of Monell liability in its prior opinion are

unavailing, and any reconsideration of the issue would not “alter the conclusion reached by the

Court.” Shrader v. CSX Tranp., Inc., 70 F.3d 255, 257 (2d Cir. 1995). Because the end result—

dismissal of the Plaintiff’s claims—would be the same, the Court denies the Plaintiff’s motion

for reconsideration on this issue, as well.

C. Plaintiff’s Motion to Vacate the Judgment and for Leave to Amend the

Complaint is Denied.

As noted above, to receive leave to amend the complaint after judgment has been entered,

the Plaintiff must first have the judgment vacated or set aside. Because the Court denies

Plaintiff’s motion to set aside or vacate the judgment, Plaintiff’s motion for leave to file a

Second Amended Complaint is DENIED as moot.

Even had the Court granted Plaintiff’s motion for reconsideration, however, his motion

for leave to amend the complaint would still fail because he has failed to establish excusable

neglect under Rule 6(b)(1)(B). In evaluating the existence of excusable neglect, Second Circuit

precedent requires that courts consider the following factors, with the third factor receiving the

greatest attention: “[1] the danger or prejudice to the [non-movant], [2] the length of the delay

and its potential impact on judicial proceedings, [3] the reason for the delay, including whether it

was within the reasonable control of the movant, and [4] whether the movant acted in good

faith.” Silivanch v. Celebrity Cruises, Inc., 333 F.3d 355, 366 (2d Cir. 2003) (citing Pioneer Inv.

Servs. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 392 (1993)). Here, the Plaintiff made a

sworn statement asserting that he did not receive a copy of the Court’s September 30, 2019

decision until after the deadline to file a second amended complaint because he was travelling

out of state. See Dkt. No. 122 at 5. Plaintiff points to a plane ticket in his name that indicates he

left New York City on October 29, 2019, prior to the deadline. Id. Ex. A. He also provides a

plane ticket that indicates he had a flight from Tel Aviv, Israel set to arrive in New York City on

October 1, 2019. See Dkt. No 135, Ex. A. Plaintiff also provides a sworn statement from a

witness who asserts that she stayed at Plaintiff’s house during the month of October and that

Plaintiff was away from his home during the entire month. See id. Ex. C. Even assuming

Plaintiff’s representations were accurate and established that he was away for the entire month,

the fact remains that the Plaintiff had previously consented to receive an electronic service and

was therefore put on constructive notice that the Court had issued its opinion and order. See Dkt.

No. 102. With this in mind, Plaintiff’s arguments that he did not receive the email notices or that

he does not have access to the Court’s electronic filing system, see Dkt. No. 137 at 1, are

unconvincing, and Plaintiff’s argument that he should not be expected to check his email, see id.

at 1–2, is plainly inadequate. Indeed, the Second Circuit has made clear that “parties have an

obligation to monitor the docket sheet to inform themselves of the entry of orders they wish to

appeal.” Stevens v. Miller, 676 F.3d 62, 70 (2d Cir. 2012) (citation omitted). The same principle

holds true for motions for reconsideration. While Plaintiff’s wholly insufficient reasoning for

failing to follow the Court’s order itself weighs heavily against granting Plaintiff leave to amend,

the Court also notes yet another factor: the length of the delay and its potential impact on judicial

proceedings. Plaintiff filed his motion for permission to file a second amended complaint on

December 3, 2019, more than two months after the deadline. See Dkt. No. 122. These

circumstances, whether assessed individually or in conjunction with each other, all serve to

establish the lack of excusable neglect. Thus, even had the Court vacated or set aside its

judgment, the Plaintiff's motion for leave to file a second amended complaint would have been

denied. Though the Court does not accept Plaintiffs argument that he had good reason not to

have received notice of the order until November 2, 2019, even if it did, it would find that the

Plaintiff's delay of more than 30 days after November 2, 2019 to file his motion further cuts

against his claim of excusable neglect. Thus, Plaintiff's motion for leave to amend the

Complaint is denied.

IV. Conclusion

For the above reasons, Plaintiffs motion for reconsideration is DENIED, and Plaintiffs

motion for leave to amend the complaint is DENIED. This Order resolves Dkt. Nos. 122 and

123.

SO ORDERED.

Mi. Q. alto

Dated: October _1 , 2020 JP

New York, New York

ALISON J. NATHAN

United States District Judge

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