Shervington v. The Village of Piermont et al, No. 1:2009cv04273 - Document 34 (S.D.N.Y. 2010)

Court Description: OPINION #99286: Because the motion was untimely, it is denied. However, as set forth below, a portion of the January 7 Opinion is withdrawn pursuant to Fed. R. Civ. P. 54 (b). The portion of the January 7 Opinion holding that Shervington made inadequate allegations of negligent training, supervision and retention of Angels is withdrawn. (Signed by Judge Robert W. Sweet on 8/9/2010) (jpo) Modified on 8/12/2010 (eef).
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イ@ Shervington v. The Village of Piermont et al I UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK セMZNG GセZM]ャNᄋ Psr)c セ[ZNG\ョ@...),-L. I 1. DOCUIV!ENT .i. j}" -'1 , i セ@ I!:LECTRONICALLY FILED ---x DOC #: DJI:rn ï½ ï½¾ï½ ï¼²ï½ ï½² t j If: (Q Doc. 34 I i JI -'--'-';1 DENESE SHERVINGTON! PIa 09 Civ. 4273 ifC against OPINION THE VILLAGE OF PIERMONT and JOHN ANGELIS, as lding Inspector of the Village of Piermont and Individually, Defendants. -x A P PEA RAN C E S: Attorneys for Plaintiff SCHOEPS & SPECHT 334 S. Middletown Road Nanuet! New York 10954 By: Michael B. Specht! Esq. At for Defendants RUTHERFORD & CHRISTIE, LLP 369 Lexington Avenue! 8 th oor New York! NY 10017 By: Julie Ann Rivera, Esq. Lewis R. Silverman, Esq. Sweet, D.J. The Plaintiff Denese Shervington ("Shervington" or the "Plaintiff") has moved pursuant to Local Rule 6.3 for reconsideration of the Opinion of January 7, 2010 (the "January 7 Opinion"). is denied. Because the motion was unt ly, it However, as set forth below, a portion of the January 7 Opinion is withdrawn pursuant to Fed. R. Civ. P. 54 (b) . The January 7 Opinion held that the PI iff in her Fifth Cause of Action failed to allege adequately that the defendant, negligent in the hi Village of Piermont (the "Village"), was I training, retaining and supervising the defendant John Angelis ("Angelisll) In that connection, the January 7 Opinion referred to letters submitted to the Village alleging unprofessional conduct of Angelis', stating "those letters are dated at issue in the complaint." As set r the events in Shervington's instant motion, fully submitted on March 31, 2010, that statement was factually in error. Shervington filed the instant motion 30 days after the entry of the January 7 Opinion as a result of the ilure of ECF notification to Shervington's after removal of the action from state court. Law office excusable neglect. i See Canf rarely constitutes an ld v. Van Atta Bui Inc., ----------- 127 F.3d 248, 250 51 (2d Cir. 1997). "Attorneys have a duty to be aware of entries on the docket of ir client's cases and are on constructive notice of such entries." Friedman v. SUNY et al., 2006 U.S. LEXIS 72642 at *8 (N.D.N.Y. Oct. 5, 2006). dil st. A failure to ly check the Court's docket does not constitute excusable neglect. Id. at *11. Under Fed. R. Civ. P. 54(b) as well as the inherent power of the court to reconsider a prior decision at any time before the entry judgment, Richman v. W.L. Gore & Assocs., 988 F. Supp. 753, 755 (S.D.N.Y. 1997), ion are an the major grounds justifying recons availability of intervening change of controlling law, new evidence, or the need to correct a clear error or prevent mani st ustice. Virgin Atl. Airways Ltd. v. Nat'l Mediation Bd., 956 F.2d 1245, 1255 (citing 18 C. Wright, A. Miller & E. Practice & Procedure § 4478 at 790). 2 Cir. 1992) , Federal The Court has "discret to consider a motion for reargument notwithstanding the movant's failure to comply with Local Rule [6.3] 's requirements, but it will only exercise this discretion when justice so requires." Int'l v. Time Warner Church of Inc., No. 92 Civ. 3024, 1997 WL 538912 at *4 (S.D.N.Y. August 27, 1997). has the discretion to correct an error in justice, and Court to recti it serves The Court interest of interest of justice for the what appears to be a simple but consequential misreading of the dates of the tters offered as exhibits. The portion of the 7 Opinion Shervington made inadequate all training, supervision and retent ding that ions of negl of Angelis is withdrawn. It is so ordered. New York, NY August 2010 1' ROBERT W. SWEET U.S.D.J. 3