Gusinski v. Genger, No. 1:2010cv04506 - Document 168 (S.D.N.Y. 2013)

Court Description: MEMORANDUM OPINION AND ORDER: Plaintiffs motion for reconsideration and for entry of a new judgment is denied. The Clerk of the Court is directed to close this motion (Dkt. No. 166). (Signed by Judge Shira A. Scheindlin on 1/16/2013) (ft)

Download PDF

'J ! i Ii UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ----------------------------------------------------- )( SAGI GENGER and TPR INVESTMENT ASSOCIATES, INC., on behalf of AG PROPERTIES CO., Third-Party Plaintiffs, - againstGILAD SHARON, Third-Party Defendant. ----------------------------------------------------- )( SHIRA A. SCHEINDLIN, U.S.D.J.: Following a two-and-a-half day bench trial, I issued an Opinion and Order dated December 20,2012 in favor of third-party defendant Gilad Sharon on the ground that no enforceable promissory note with Omniway Limited (the "Omniway Note") ever existed. Plaintiffs now move the Court to reconsider on the ground that the Court's issuance of a sanction against Sharon precluding hiljIl i '''from contesting that he is the alter ego ofOmniway and, as such, is liableifor its acts and obligations'" means that Sharon cannot "invoke Omniway's failur~ I to produce its own corporate records as a basis for his defense."] For the follo~ing Third-Party Plaintiffs' Memorandum of Law in Support ofMo~ion for Reconsideration at 1-2 ("PI. Mem.") (citing Genger v. Sharon, No.1 0 Civ. ~506, j I 1 reasons, the motion is denied. II. LEGAL STANDARD FOR RECONSIDERATION OF A JUDGMENT2 Federal Rule of Civil Procedure 59(a)(2) provides that [a]fter a nonjury trial, the court may, on motion for a new trial, open the judgment if one has been entered, take additional testimony, amend findings of fact and conclusions of law or make new ones, and direct the entry of a new judgment. Motions for reconsideration are governed by Local Rule 6.3 and are committed to the sound discretion of the district court.3 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. 4 Typical grounds for reconsideration include an intervening change of controlling law, the availability 2012 WL 3854883, at *6 (S.D.N.Y. Sept. 5, 2012) ( Sanctions Op. )). 2 Familiarity with the factual and procedural history is presumed and can be found in Genger v. Sharon, No. 10 Civ. 4506, 2012 WL 6628037 (S.D.N.Y. Dec. 20, 2012) ( Trial Op. ). 3 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)). 4 Medisim Ltd. v. BestMed LLC, No. 10 Civ 2463, 2012 WL 1450420, at *1 (S.D.N.Y. Apr. 23, 2012) (quoting In re BDC 56 LLC, 330 F.3d 111, 123 (2d Cir. 2003)). 2 of new evidence, or the need to correct a clear error or prevent manifest injustice. 5 III. DISCUSSION At trial, I admitted into evidence an incomplete copy of the Omniway Note, stating that [p]laintiffs have met their burden of establishing that the original note has been lost and, in fact, have raised the inference that Sharon . . . may be responsible for the absence of the original note. 6 Plaintiffs take issue with my findings that under New York law the burden was on plaintiffs to track down [the Omniway officials] in order to prove that the signature was valid and enforceable and that no resolution on the part of Omniway authorizing the transaction has been produced. 7 They argue that the Court should have drawn an adverse inference that the missing Omniway corporate records, which Mr. Sharon controls but chose not to produce, would have confirmed the validity of the Omniway Note. 8 5 Gucci America, Inc. v. Guess?, Inc., No. 09 Civ. 4373, 2011 WL 6326032, at *1 (S.D.N.Y. Dec. 16, 2011) (quoting Virgin Atl. Airways, Ltd. v. National Mediation Bd., 956 F.2d 1245, 1255 (2d Cir. 1992)). 6 Trial Op., 2012 WL 6628037, at *7. 7 See Pl. Mem. at 1 (quoting Trial Op., 2012 WL 6628037, at *8). 8 Id. at 5. 3 As a preliminary matter, the sanction entered against Sharon precluded him from denying responsibility for any judgment entered against Omniway, but did not include what would have been a case-terminating adverse inference that, because Omniway failed to produce documents, a valid and enforceable promissory note is presumed to have existed.9 Case terminating sanctions are drastic remed[ies] generally to be used only when the district judge has considered lesser alternatives. 10 Even if Sharon s liability for Omniway s failure to produce documents should have altered the burden under New York law for establishing the prima facie validity of the note, I held that even if plaintiffs were entitled to the various rebuttable presumptions of validity [of signatures, et cetera] set forth in the N.Y.U.C.C. there is simply too much evidence that the Omniway Note was never finalized to support a finding that plaintiffs have established the existence of a 9 Plaintiffs requested an order precluding Mr. Sharon from denying his responsibility for the debt underlying the judgment entered in this case against third-party defendant [Omniway]. Sanctions Op., 2012 WL 3854883, at *3. I entered an order precluding Sharon from denying responsibility for any judgment against Omniway, but held that the default judgment against Omniway was unenforceable so that the question of Omniway s liability remained. Id. at *5-6. 10 Southern New England Tel. Co. v. Global NAPs Inc., 624 F.3d 123, 144 (2d Cir. 2010). 4 valid note. 11 In fact, the evidence at trial was sufficient to find that Sharon actually disproved the existence of an enforceable note. I disagree that AG Properties could not have been expected to have a complete copy of the promissory note if one had ever existed. A complete note for Lerner Manor Trusteeships, Ltd., the entity through which Sharon claimed he ultimately invested, was found in the files of AG Properties. Moreover, I was ultimately persuaded by the fact that the evidence at trial demonstrates that during the relevant time period, not a single person involved . . . believed that the Omniway Note had ever been finalized as the vehicle through which Sharon invested in AG Properties. 12 IV. CONCLUSION For the foregoing reasons, plaintiffs motion for reconsideration and for entry of a new judgment is denied. The Clerk of the Court is directed to close this motion (Dkt. No. 166). 11 Trial Op., 2012 WL 6628037, at *8. The testimonial evidence that the Omniway Note was never finalized, and plaintiffs inability to produce any credible testimony to rebut it, is not attributable to Sharon s failure to produce documents or testimony from Omniway. 12 Id. 5 SO ORDERED: Dated: New York, New York January 16,2013 6 -AppearancesFor Third-Party Plaintiffs: John Dellaportas, Esq. Evangelos Michailidis, Esq. Duane Morris, LLP 1540 Broadway New York, New York 10036 (212) 692-1000 For Third-Party Defendant: William B. Wachtel, Esq. Julian D. Schreibman, Esq. Elliot Silverman, Esq. Wachtel Masyr & Missry LLP One Dag Hammarskjold Plaza 885 Second Avenue, 47th Floor New York, New York 10017 (212) 909-9500 7

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.