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14‐2684

Beare v. Millington

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

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

ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE

OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A

SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE

FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”).  

A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT

REPRESENTED BY COUNSEL.

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

Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley

Square, in the City of New York, on the 3rd day of June, two thousand fifteen.

      

PRESENT: RICHARD C. WESLEY,

    PETER W. HALL,

    RAYMOND J. LOHIER, JR.,

     Circuit Judges.

______________________

LEATRICE HARRIS,  

     Plaintiff,

JENNIFER BEARE, EXECUTRIX OF THE ESTATE OF LEATRICE HARRIS,

RICHARD WRIGHT, ADMINISTRATOR C.T.A. OF THE ESTATE OF

LEATRICE HARRIS,

     Plaintiffs‐Appellants,

     ‐v.‐            No. 14‐2684
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ZSA ZSA MILLINGTON,

     Defendant‐Appellee.

______________________  

FOR APPELLANTS:   PAUL A. SCHNEYER, Paul A. Schneyer PC, New York,

NY.

FOR APPELLEE:    ZSA ZSA MILLINGTON, Bordentown, NH.

Appeal from orders of the United States District Court for the Eastern

District of New York (Melançon, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the orders of the district court are

AFFIRMED

Appellants Jennifer Beare, the executrix of the estate of Leatrice Harris,

and Richard Wright, the administrator c.t.a. of the estate, through counsel,

appeal the district court’s orders granting summary judgment in favor of Zsa Zsa

Millington, and denying their Federal Rule of Civil Procedure 60(b) motion.  

Harris’s suit against Millington raised state law claims arising from a deed and

power of attorney Harris signed in Millington’s favor in 2007.  After Harris’s

death, the Appellants were substituted as plaintiffs.  We assume the parties’
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familiarity with the underlying facts, the procedural history of the case, and the

issues on appeal.

We review orders granting summary judgment de novo and determine

whether the district court properly concluded that there was no genuine issue as

to any material fact and the moving party was entitled to judgment as a matter of

law.  Miller v. Wolpoff & Abramson, LLP, 321 F.3d 292, 300 (2d Cir. 2003).  The

Court is required to resolve all ambiguities and draw all factual inferences in

favor of the nonmovant.  Nationwide Life Ins. Co. v. Bankers Leasing Assoc., Inc., 182

F.3d 157, 160 (2d Cir. 1999).   

Here, the district court properly granted Millington summary judgment on

Appellants’ claims.  We affirm for substantially the reasons stated by the district

court in its thorough March 25, 2014, order.  A few issues warrant brief

discussion.

Most of Appellants’ claims of error are premised on arguments raised for

the first time in the motion for reconsideration.  We do not generally consider

claims that were raised for the first time in a motion for reconsideration, see

Official Comm. of Unsecured Creditors of Color Tile, Inc. v. Coopers & Lybrand, LLP,

322 F.3d 147, 159 (2d Cir. 2003), and there is no reason to do so here.  Each of the
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facts and legal arguments Appellants relied on in the motion for reconsideration

was available to them before the court granted summary judgment.  See Phillips

v. City of New York, 775 F.3d 538, 544 (2d Cir. 2015) (party waived arguments,

which were based on documents they obtained during discovery, when their

arguments were raised for the first time in a motion for reconsideration).   

We reject Appellants’ argument that the complaint and opposition to

summary judgment raised a constructive fraud claim.  Under New York law,

actual fraud and constructive fraud are separate claims.  See Brown v. Lockwood,

76 A.D.2d 721, 730 (2d Dep’t 1980) (“The law recognizes two kinds of fraud—

actual or constructive.”).  Here, Appellant’s opposition to summary judgment

cited the legal standard for actual fraud, and the court applied this same

standard.  Neither the complaint nor the opposition asserted a constructive fraud

claim.   

Turning to the motion for reconsideration, the district court and the parties

considered the motion to have been brought under Rule 60(b), but this Rule

applies only to final orders and judgments.  See Fed. R. Civ. P. 60(b); Fennell v.

TLB Kent Co., 865 F.2d 498, 501 (2d Cir. 1989).  The district court’s entry of

judgment, following its grant of summary judgment, was not final because
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Millington’s counterclaim remained pending, and the court did not direct entry

of a final judgment pursuant to Rule 54(b).   See Fed. R. Civ. P. 54(b).  Rule 60(b)

was therefore inapplicable to the motion, which we construe as having been

brought under the district court’s Local Rule 6.3.  

We review the denial of reconsideration for abuse of discretion.  See

Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995).  A party may not use a

motion for reconsideration to advance theories of relief or facts that were not

previously presented to the court.  See Nat’l Union Fire Ins. Co. of Pittsburgh, PA. v.

Stroh Cos., 265 F.3d 97, 115 (2d Cir. 2001).  Because Appellants’ motion did

exactly this, the court’s denial was not an abuse of discretion.  We agree with the

district court that evidence a witness recanted her deposition testimony was not

new, since it is undisputed that Appellants were aware of the witness’s

admission before the court granted summary judgment.   

We have considered all of Appellants’ remaining arguments and find them

to be without merit.  Accordingly, we AFFIRM the orders of the district court.  

     

       FOR THE COURT:

       Catherine O’Hagan Wolfe, Clerk