Zemon v. Papadopoulos (In re Papadopoulos), Case No. 12-13125 (JLG)

• Decision Date: 13 March 2015
• Docket Number: Case No. 12-13125 (JLG),Adversary No. 12-01907 (JLG)
• Parties: In re: GREGORY PAPADOPOULOS, Debtor. RAY ZEMON, Plaintiff, v. GREGORY PAPADOPOULOS, Defendant.
• Court: U.S. Bankruptcy Court — Southern District of New York

In re: GREGORY PAPADOPOULOS, Debtor.RAY ZEMON, Plaintiff, v. GREGORY PAPADOPOULOS, Defendant.

Case No. 12-13125 (JLG)

Adversary No. 12-01907 (JLG)

UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK

March 13, 2015

NOT FOR PUBLICATION

Chapter 7

MEMORANDUM OPINION AND ORDER DENYING THE DEFENDANT'S MOTION FOR RECONSIDERATION

APPEARANCES:

PRESS LAW FIRM PLLC

Attorneys for Plaintiff Ray Zemon

405 Lexington Avenue

7th Floor

New York, New York 10174

By: Matthew J. Press, Esq.

GREGORY PAPADOPOULOS

Debtor/Defendant Pro Se

2520 30th Road

Apt. 5H

Queens, New York 11102

The Honorable James L. Garrity, Jr. United States Bankruptcy Judge

Introduction

Ray Zemon (the "Plaintiff") commenced this adversary proceeding by filing a complaint seeking a judgment denying Gregory Papadopoulos, a pro se debtor (the "Debtor"), a discharge in bankruptcy under sections 727(a)(3) and (a)(4)(A) of the Bankruptcy Code, 11 U.S.C. §§ 727(a)(3) and (a)(4)(A). [ECF Doc. # 1]¹ By motion dated July 15, 2014 (the "Summary Judgment Motion"), the Plaintiff sought summary judgment on his complaint pursuant to Federal Rule of Bankruptcy Procedure ("Fed. R. Bankr. P.") 7056 and Federal Rule of Civil Procedure ("FRCP") 56. [ECF Docs. ## 79, 80, 81, 82] On January 8, 2005, the Court (Grossman, J.)² issued an opinion (the "Opinion") granting the motion and directing entry of judgment against the Debtor.³ The Court assumes familiarity with the Opinion for purposes of the discussion below.

On January 20, 2015, the Debtor timely sought reconsideration of the Opinion pursuant to a Motion for Reconsideration and Adentum [sic] to Motion for Reconsideration (collectively, the "Motion"). [ECF Docs. ## 101, 102] The Debtor contends that he is entitled to relief to correct errors of fact contained in the Opinion and because the Court erroneously relied on Moreo v. Rossi (In re Moreo), 437 B.R. 40 (E.D.N.Y. 2010) ("Moreo") in the Opinion. The Plaintiff opposes the Motion, arguing that it is little more than a rehash of the arguments rejected by the Court in resolving the Summary Judgment Motion and thus not grounds for the relief theDebtor seeks. See Opposition of Creditor Ray Zemon to Motion of Gregory Papadopoulos for Reconsideration at 2-3. [ECF Doc. # 103] The Debtor does not contend that there has been an intervening change of controlling law, and does not point to evidence or other matters overlooked by the Court that would have altered the Opinion. Nor has the Debtor demonstrated a need to correct clear errors of fact or law in the Opinion—even in light of the liberal pleading standards that this Court accords the pro se Debtor.⁴ Accordingly, as explained below, the Motion is DENIED.

Standard of Review

Local Bankruptcy Rule 9023-1(a) provides:

A motion for reargument of a court order determining a motion shall be served within fourteen (14) days after the entry of the Court's order determining 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, and, unless the Court orders otherwise, shall be made returnable within the same amount of time as required for the original motion. The motion shall set forth concisely the matters or controlling decisions which counsel believes the Court has not considered. No oral argument shall be heard unless the Court grants the motion and specifically orders that the matter be reargued orally.

S.D.N.Y. L.B.R. 9023-1(a).⁵

The standard applicable to a motion for reargument or reconsideration is identical to a motion to amend a judgment under FRCP 59(e).⁶ See Lyell Theatre Corp. v. Loews Corp., 682 F.2d 37, 41 (2d Cir. 1982) ("[W]here a post-judgment motion is timely filed and 'calls into question the correctness of that judgment it should be treated as a motion under FRCP 59(e), however it may be formally styled.'" (quoting Dove v. Codesco, 569 F.2d 807, 809 (4th Cir. 1978))); In re Jamesway Corp., 203 B.R. 543, 545 (Bankr. S.D.N.Y. 1996) (A "motion for 'reargument' is properly in the nature of a motion for a new trial or for the amendment of a judgment pursuant to Fed. R. Civ. P. 59"); see also 10 Collier on Bankruptcy ¶ 9023.04 (15th ed. rev. 2008) ("Any motion that draws into question the correctness of the judgment is functionally a motion under Rule 9023, whatever its label. Thus a motion to 'reconsider,' 'for clarification,' to 'vacate,' to 'set aside' or to 'reargue' is a motion under Rule 9023 . . . .").

Under FRCP 59(e), a court can revisit a prior decision based upon an intervening change in the controlling law, the availability of new evidence, to correct manifest errors of law or fact upon which the judgment is based, or to prevent manifest injustice. Official Comm. of Unsecured Creditors of Enron Corp. v. Martin (In re Enron Creditors Recovery Corp.), 378 B.R. 54, 56-57 (Bankr. S.D.N.Y. 2007) (citing Cray v. Nationwide Mut. Ins. Co., 192 F. Supp. 2d 37, 39 (W.D.N.Y. 2001)). "The standard for granting . . . a motion [for reconsideration] is strict, and reconsideration will generally be denied unless the moving party can point to controlling decisions or data that the court overlooked—matters, in other words, that might reasonably beexpected to alter the conclusion reached by the court." Shrader v. CSX Transp., 70 F.3d 255, 256 (2d Cir. 1995) ("Shrader") (citing Schonberger v. Serchuk, 742 F. Supp. 108, 119 (S.D.N.Y. 1990); Adams v. United States, 686 F. Supp. 417, 418 (S.D.N.Y. 1988)). In that way, the rule insures "the finality of decisions and . . . prevent[s] the practice of a losing party examining a decision and then plugging the gaps of a lost motion with additional matters." Carolco Pictures, Inc. v. Sirota, 700 F. Supp. 169, 170 (S.D.N.Y. 1988); see also Park South Tenants Corp. v. 200 Central Park Assocs., L.P., 754 F. Supp. 352, 354 (S.D.N.Y. 1985) ("The standard for granting a motion for reargument is strict in order to dissuade repetitive arguments on issues that have already been considered fully by the court."). It also precludes repetitive arguments on issues that have already been considered by the court. Ruiz v. Comm'r of Dep't of Transp., 687 F. Supp. 888, 890 (S.D.N.Y.), aff'd, 858 F.2d 898 (2d Cir. 1988); see also In re Taub, 421 B.R. 713, 716 (Bankr. E.D.N.Y. 1997) (A motion for reconsideration "is not a proper tool to repackage and relitigate arguments and issues already considered by the Court in deciding the original motion."). A motion for reconsideration is "limited to the record that was before the Court on the original motion." Pereira v. Aetna Cas. & Surety Co. (In re Payroll Exp. Corp.), 216 B.R. 713, 716 (S.D.N.Y. 1997) (quoting Wishner v. Cont'l Airlines, 1997 WL 615401, at *1 (S.D.N.Y. Oct. 6, 1997))).

As noted, the Debtor contends that the Opinion is rife with factual errors and that the Court misplaced its reliance on Moreo. "A motion based on manifest errors of law or fact will not be granted except on a showing of some substantial reason. The burden is on the movant to demonstrate these manifest errors." In re Crozier Bros., Inc., 60 B.R. 683, 688 (Bankr. S.D.N.Y. 1986) (citing Hager v. Paul Revere Life Ins. Co., 489 F. Supp. 317, 321 (E.D. Tenn. 1977), aff'dwithout opinion, 615 F.2d 1360 (6th Cir. 1980); Solar Laboratories v. Cincinnati Adver. Prods. Co., 34 F. Supp. 783, 784 (S.D. Ohio 1940), appeal dismissed, 116 F.2d 497 (6th Cir. 1940).

Analysis

I. Alleged Errors of Fact

The Debtor contends that, in the Opinion, the Court relied on "fraudulent unsworn factual misrepresentations and trickery" by the Plaintiff and ignored or overlooked documents submitted in opposition to the Summary Judgment Motion.⁷ See Motion at 1. Neither contention supports the Debtor's claim for relief under FRCP 59(e). Contrary to the Debtor's assertion, the Court based its findings in the Opinion on evidence in the record—much of it consisting of the Debtor's deposition testimony and responses to the Plaintiff's interrogatories. Moreover, the Debtor does not point to specific facts or legal arguments in the documents that the Courtallegedly overlooked, let alone those that, if considered, would reasonably be expected to alter the Opinion.⁸

Debtor next points to portions of the Opinion that he says contain factual errors warranting FRCP 59(e) relief. Here, as above, Debtor neither demonstrates that the Court's findings are clearly erroneous, nor points to evidence or other matters that, if properly applied, could alter the Opinion. Rather, the Debtor seems intent on relitigating matters already decided by the Court in the Opinion. That is plainly prohibited by FRCP 59(e). See Shrader, 70 F.3d at 257 ("[A] motion to reconsider should not be granted where the moving party seeks solely to relitigate an issue already decided."); Sequa Corp. v. GBJ Corp., 156 F.3d 136, 144 (2d Cir. 1998) ("Sequa Corp.") ("Rule 59 is not a vehicle for relitigating old issues, presenting the case under new theories, securing a rehearing on the merits, or otherwise taking a 'second bite at the apple' . . . ."). The Court considers each of the Debtor's contentions below.

On Page 3 of the Opinion, the Court stated that "[t]he Debtor's assets included . . . a 100% ownership interest in Revcon, Inc./Revcon, LLC, his proprietary trading firm." Opinion at 3. As support for that finding, the Court relied on the Debtor's sworn deposition testimony. Id. (citing Papadopoulos Depo. 162:7-17).⁹ Nonetheless, the Debtor contends that the finding is "false" and is "clearly contradicted" by affidavits dated October 10, 2014 and October 19, 2014,respectively [ECF Docs. ## 98, 99], that the Debtor submitted in opposition to the Summary Judgment Motion.¹⁰ See Motion at 1. Those affidavits provide no support for the Motion because the Debtor is plainly taking a "second bite at the apple" in contravention to FRCP 59(e) and, in any event, the Court properly disregarded the affidavits in rendering the Opinion. See, e.g., Schwimmer v. SONY Corp. of Am., 637 F.2d 41, 45-46 (2d...