Free Memorandum in Opposition to Motion - District Court of Connecticut - Connecticut

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LEXSEE 1998 U.S. DIST LEXIS 20102 JUNE DeBARI, ARTHUR DeBARI, GERARD DeBARI and LAWRENCE DeBARI, Plaintiffs,--against--TOWN OF MIDDLETON, NEW YORK; VILLAGE OF MARGARETVILLE, NEW YORK; JOHN MATHIESEN; WALTON HELEY, JR. and CARL WALLMAN, Defendants. 97--CV--1422 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF NEW YORK 1998 U.S. Dist. LEXIS 20102 December 22, 1998, Decided December 23, 1998, Filed DISPOSITION: [*1] Defendants' motions for reconsideration DENIED. LexisNexis (TM) HEADNOTES-- Core Concepts: COUNSEL: MICHAEL A. JACOBS, ESQ., JACOBS & JACOBS, Stamford, New York, for plaintiffs. D. SCOTT BASSINSON, ESQ., WHITEMAN, OSTERMAN & HANNA, Albany, New York, for Town of Middleton, Mathiesen, Heley and Wallman, defendants. DAVID L. POSNER, ESQ., MCCABE AND MACK, LLP, Poughkeepsie, New York, for Village of Margetville, defendant. JUDGES: Hon. Thomas J. McAvoy, Chief U.S. District Judge. OPINIONBY: Thomas J. McAvoy OPINION: DECISION & ORDER McAVOY, CHIEF JUDGE: This action, brought pursuant to 42 U.S.C. § 1983, arises from the demolition by defendants n1 of plaintiffs' building. Plaintiffs claim a number of constitutional violations. n1 The individual defendants have been sued in their official capacities only. Defendants now seek reconsideration of certain aspects of the Court's Memorandum--Decision and Order of May 22, 1998, which granted in part and denied in part defendants' motions for summary judgment. Specifically, defendants seek reconsideration of that [*2] part of the decision denying their motion seeking dismissal of plaintiffs' claims of procedural due process and a Fourth Amendment seizure. A motion for reconsideration is addressed to the sound discretion of the district court, and is generally limited to those circumstances in which the movant shows either (1) an intervening change of controlling law; (2) the availability of new evidence; and/or (3) the need to correct a clear error or prevent manifest injustice. See, e.g., Virgin Atlantic Airways Ltd. v. National Mediation Bd., 956 F.2d 1245, 1255 (2d Cir. 1992). In the present case, the defendants rely on the third factor--- clear error of law- -as the basis for reconsidera-a -tion. Specifically, defendants assert that the Court erred in relying upon several affidavits submitted by plaintiffs in opposition to summary judgment, which the Court found created issues of material fact that prevented the granting of summary judgment with respect to plaintiffs' claims of procedural due process and a Fourth Amendment seizure. Specifically, defendants assert that the affidavits did not satisfy FED. R. CIV. P. 56(e) because "the affidavits do not state that they are based upon personal [*3] knowledge, make conclusory allegations without factual support, and state opinions and conclusions without demonstrating that the affiants are competent to testify as to such matters." See Defendants' Memorandum of Law, at 8. Rule 56(e) of the Federal Rules of Civil Procedure requires that "supporting and opposing affidavits . . . be made on personal knowledge, . . . set forth such facts as would be admissible in evidence, and . . . show af-

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1998 U.S. Dist. LEXIS 20102, *3

firmatively that the affiant is competent to testify to the matters stated therein. See also Rexnord Holdings, Inc. v. Bidermann, 21 F.3d 522, 526 (2d Cir. 1994); Union Ins. Society of Canton, Ltd. v. William Gluckin & Co., 353 F.2d 946, 952 (2d Cir. 1965); Christopher--Ketchum v. Agway Energy Products, 988 F. Supp. 610, 615 (N.D.N.Y. 1997). In this case, plaintiffs submitted in opposition to summary judgment the affidavits of Damon Stewart and Richard Fairburn. Stewart opines that for the past twenty years, he has performed site excavation work and has torn down many buildings. Steward states that as a result of the flood, "the Debari building was picked up by water and was moved around." Stewart Aff., P 4. Steward continues that [*4] in his opinion, "the DeBari building was structurally sound." Id., P 6. Fairburn opines that he has been in the construction business for the past forty years. He continues that he salvaged several buildings in Margaretville. He states that "the DeBari building had no wallboard damage and there was no outside damage that amounted to anything. That the only thing required on the DeBari building was foun-

dation repair." Fairburn Aff., P 5- Thus, he concludes -6. that the DeBari building was not in danger of collapse. After consideration, the Court holds that it did not make a clear error of law in relying upon the Stewart and Fairburn affidavits in denying summary judgment. The affidavits are based upon personal knowledge, set forth admissible evidence, and show affirmatively that the affiants are competent to testify to the matters at issue. Although admittedly neither affidavit is a paragon of clarity and substance, both, nonetheless, satisfy the requirements of Rule 56(e). For the reasons stated, defendants' motions for reconsideration are DENIED IT IS SO ORDERED. Dated December 22, 1998 at Binghamton, New York Hon. Thomas J. McAvoy Chief U.S. District Judge [*5]