Stefanopoulos v. City of New York, (2nd Cir. 2008)

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07-1045-cv

Stefanopoulos v. City of New York

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO SUMMARY ORDERS FILED

AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY THIS COURT'S LOCAL RULE 32.1 AND

FEDERAL RULE OF APPELLATE PROCEDURE 32.1. IN A BRIEF OR OTHER PAPER IN WHICH A LITIGANT

CITES A SUMMARY ORDER, IN EACH PARAGRAPH IN WHICH A CITATION APPEARS, AT LEAST ONE CITATION

MUST EITHER BE TO THE FEDERAL APPENDIX OR BE ACCOMPANIED BY THE NOTATION: "(SUMMARY ORDER)."

UNLESS THE SUMMARY ORDER IS AVAILABLE IN AN ELECTRONIC DATABASE WHICH IS PUBLICLY ACCESSIBLE

WITHOUT PAYMENT OF FEE (SUCH AS THE DATABASE AVAILABLE AT HTTP://WWW.CA2.USCOURTS.GOV), THE

PARTY CITING THE SUMMARY ORDER MUST FILE AND SERVE A COPY OF THAT SUMMARY ORDER TOGETHER

WITH THE PAPER IN WHICH THE SUMMARY ORDER IS CITED. IF NO COPY IS SERVED BY REASON OF THE

AVAILABILITY OF THE ORDER ON SUCH A DATABASE, THE CITATION MUST INCLUDE REFERENCE TO THAT

DATABASE AND THE DOCKET NUMBER OF THE CASE IN WHICH THE ORDER WAS ENTERED.

At a stated term of the United States Court of Appeals for the

Second Circuit, held at the Daniel Patrick Moynihan United States

Courthouse, 500 Pearl Street, in the City of New York, on the

5th day of November, two thousand eight.

PRESENT:

HON. ROBERT D. SACK,

HON. ROBERT A. KATZMANN,

HON. PAUL J. KELLY,1

Circuit Judges.

JIMMY STEFANOPOULOS,

Plaintiff-Appellant,

- v - No. 07-1045-cv

THE CITY OF NEW YORK, DETECTIVE

STUKONIS, AND UNIDENTIFIED NEW YORK

CITY POLICE OFFICER,

Defendants-Appellees.

Appearing for Appellant: Bernard Ouziel, Great Neck, NY.

Appearing for Appellee: Michael A. Cardozo, Corporation Counsel of the City of New York (Larry A. Sonnenshein, Julian L.

Kalkstein, of counsel), New York, NY.

Appeal from the United States District Court for the Eastern District of New York (Sterling Johnson, Jr., Judge).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the judgment of the district court be, and it hereby is, AFFIRMED.

Plaintiff Jimmy Stefanopoulos appeals from the January 16, 2007, order of the United States District Court for the Eastern District of New York denying the plaintiff's motion to be relieved of a judgment pursuant to Federal Rule of Civil Procedure 60(b)(6). We assume the parties' familiarity with the underlying facts and procedural history of the case.

In response to his post-arrest treatment by New York City police officers, on February 10, 2001, the plaintiff filed a complaint under 42U.S.C. § 1983 and New York State tort law in the Eastern District of New York. On September 3, 2004, the defendants filed a motion for summary judgment. The plaintiff, through his counsel, Thomas Sheehan, failed to appear or make a written submission in opposition to the motion. Following the standard for deciding unopposed summary judgment motions, under which "the district court must still assess whether the moving party has fulfilled its burden of demonstrating that there is no genuine issue of material fact and its entitlement to judgment as a matter of law," Vermont Teddy Bear Co., Inc. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir. 2004), the court granted the summary judgment motion by memorandum and order dated February 28, 2005, and the clerk of the court entered judgment against the plaintiff on March 7, 2005. Several months later, the plaintiff's counsel was suspended from practice. He was also arrested and charged with criminal solicitation of a minor. On June 2, 2006, represented by new counsel, the plaintiff sought to be relieved from the judgment against him pursuant to Federal Rule of Civil Procedure 60(b)(6).

The district court denied the motion. It determined, inter alia, that "an attorney's gross negligence is not a basis for relief under Rule 60(b)(6)," and that "there is no indication here that Mr. Sheehan's conduct amounted to 'constructive disappearance.'" "[Rule 60(b)(1)] provides for relief from mistake, inadvertence, surprise, or excusable neglect. Generally this provision has been invoked to remedy the mistake of a party or his representatives." Matter of Emergency Beacon Corp., 666 F.2d 754, 759 (2d Cir. 1981). A motion under Rule 60(b)(1) must, however, be brought no more than one year after the entry of the judgment or order from which relief is sought. See Fed. R. Civ.

P. 60(c)(1). The plaintiff's motion here was brought after that one-year period had elapsed. Apparently for that reason, the plaintiff invoked not Rule 60(b)(1), but Rule 60(b)(6), which permits relief for "any other reason that justifies it." Id.

Such a motion may be brought "within a reasonable time." Fed.

R. Civ. P. 60(c)(1).

Courts have occasionally granted a Rule 60(b)(6) motion to a party where his or her lawyer, by neglecting the case entirely, was guilty of gross negligence. See L.P. Steuart, Inc. v.

Matthews, 329 F.2d 234, 235 (D.C. Cir. 1964), cert. denied 379 U.S. 824 (1964); Boughner v. Secretary of Health, Ed. and Welfare, U.S., 572 F.2d 976, 978 (3d Cir. 1978). We have, however, "consistently indicated a reluctance" to follow the approach of cases like L.P. Steuart. Nemaizer v. Baker, 793 F.2d 58, 63 (2d Cir. 1986); see also U.S. v. Cirami, 535 F.2d 736, 740 (2d Cir. 1976). Based upon that "reluctance," we conclude that the district court did not abuse its discretion in denying the motion. See Matarese v. LeFevre, 801 F.2d 98 (2d Cir. 1986).

For the foregoing reasons, the judgment of the District Court is hereby AFFIRMED.

FOR THE COURT: Catherine O'Hagan Wolfe, Clerk of the Court By:

1 The Honorable Paul J. Kelly of the United States Court of Appeals for the Tenth Circuit, sitting by designation.

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