1

09-2634-cv Aponte v. City of N.Y. Dep’t of Corr.



### UNITE D STATES COURT OFAPPEALS FOR T HE SE COND CIRCU IT



# SUM MARY ORDE R

R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT

. C ITATION TO A SUMMARY ORDER FILED
ON OR AFTER J

ANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL R ULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT ’ S L OC AL R ULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
DOCUMENT FILED WITH THIS COURT , A PARTY MUST CITE EITHER THE FEDERAL APPENDI X 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

.



### 1 At a stated term of the United States Court of Appeals 

### 2 for the Second Circuit, held at the Daniel Patrick Moynihan 

### 3 United States Courthouse, 500 Pearl Street, in the City of 

### 4 New York, on the 17 day of May, two thousand ten. th 

### 5 6 PRESENT: DENNIS JACOBS, 

### 7 Chief Judge, 

### 8 RALPH K. WINTER, 

### 9 JOSEPH M. McLAUGHLIN, 

### 10 Circuit Judges. 

### 11 12 - - - - - - - - - - - - - - - - - - - -X Daniel Aponte, 

### 13 Plaintiff-Appellant, 

### 14 15 16 -v.- 09-2634-cv 

### 17 18 City of New York Department of 

### 19 Corrections et al., 

### 20 Defendants-Appellees. 

### 21 - - - - - - - - - - - - - - - - - - - -X 

### 22 FOR APPELLANT: Daniel Aponte, pro se, Effort, PA. 

### 23 24 25 FOR APPELLEE: Larry A. Sonnenshein, The City of 

### 26 New York, Law Department, New York, 

### 27 NY. 

### 282 

### 1 UPON DUE CONSIDERATION , IT IS HEREBY ORDERED , ADJUDGED 

### 2 AND DECREED that the order of the district court be 

### 3 AFFIRMED , and the motion to recall our mandate in the appeal 

### 4 docketed under 98-9067-cv be DENIED

.



### 5 Plaintiff-Appellant Daniel Aponte, pro se, appeals from 

### 6 the order of the United States District Court for the 

### 7 Southern District of New York (Rakoff, J.), denying 

### 8 Appellant’s motion for reconsideration, pursuant to Fed. R. 

### 9 Civ. P. 60(b). We assume the parties’ familiarity with the 

### 10 facts and procedural history.



### 11 Rule 60(b)(2) provides, in relevant part, that a motion 

### 12 for relief from a judgment or order may be granted based on 

### 13 “newly discovered evidence that, with reasonable diligence, 

### 14 could not have been discovered in time to move for a new 

### 15 trial under Rule 59(b).” We review a district court order 

### 16 denying a Rule 60(b) motion for abuse of discretion. See 

### 17 Transaero, Inc. v. La Fuerza Aerea Boliviana, 162 F.3d 724, 

### 18 729 (2d Cir. 1998). Relief pursuant to Rule 60(b) is 

### 19 available only in “exceptional circumstances.” Ruotolo v. 

### 20 City of New York, 514 F.3d 184, 191 (2d Cir. 2008) (internal 

### 21 quotation marks omitted). “A district court would 

### 22 necessarily abuse its discretion if it based its ruling on 

### 23 an erroneous view of the law or on a clearly erroneous 

### 24 assessment of the evidence.” Transaero, 162 F.3d at 729 

### 25 (internal quotation marks omitted). The district court did 

### 26 not abuse its discretion by denying Appellant’s Rule 60(b) 

### 27 motion for reconsideration because it was premised on the 

### 28 legal malpractice of counsel and not the merits of the 

### 29 underlying litigation. Likewise, the additional evidence 

### 30 referenced by Appellant was in support of his claim of legal 

### 31 malpractice. See Boule v. Hutton, 328 F.3d 84, 95 (2d Cir. 

### 32 2003) (“Rule 60(b)(2) provides relief when the movant 

### 33 presents newly discovered evidence that could not have been 

### 34 discovered earlier and that is relevant to the merits of the 

### 35 litigation.”); see also Fed. R. Civ. P. 60(c)(1) (a motion 

### 36 for Rule 60(b)(2) relief must be made “no more than a year 

### 37 after the entry of judgment”).



### 38 Appellant requests that we “reopen” his appeal docketed 

### 39 under 98-9067-cv. We construe this request as a motion to 

### 40 recall our mandate and to reinstate his appeal. Our “power 

### 41 to recall a mandate is unquestioned.” Sargent v. Columbia 

### 42 Forest Prods., Inc., 75 F.3d 86, 89 (2d Cir. 1996). 

### 43 “However, this power is to be exercised sparingly . . . and 

### 44 reserved for exceptional circumstances.” Id. (citations and3 

### 1 internal quotation marks omitted). “‘The sparing use of the 

### 2 power demonstrates it is one of last resort, to be held in 

### 3 reserve against grave, unforeseen contingencies.’” British 

### 4 Int’l Ins. Co. v. Seguros la Republica, S.A., 354 F.3d 120, 

### 5 123 (2d Cir. 2003) (quoting Calderon v. Thompson, 523 U.S. 

### 6 538, 549–50 (1998)). Appellant fails to make any such 

### 7 showing. The only explanation he offers for waiting almost 

### 8 ten years to raise these claims is that he only “recently” 

### 9 received this Court’s decision in an “anonymous package,” 

### 10 but concedes later in his brief that, in 2000, his counsel 

### 11 had informed him that his appeal, docketed under 09-9067-cv, 

### 12 had been decided. No argument is made as to why this Court 

### 13 should recall the mandate other than to request that we 

### 14 reopen the appeal so he can add a legal malpractice claim. 

### 15 See Singleton v. Wulff, 428 U.S. 106, 120 (1976) (“It is the 

### 16 general rule . . . that a federal appellate court does not 

### 17 consider an issue not passed upon below.”). Accordingly, we 

### 18 find no manifest injustice would result from not recalling 

### 19 the mandate because any appeal would be meritless.



### 20 For the reasons stated above, the order of the district 

### 21 court is AFFIRMED , and the motion to recall our mandate in 

### 22 the appeal docketed under 98-9067-cv is DENIED

.



### 23 24 25 FOR THE COURT: 

### 26 CATHERINE O’HAGAN WOLFE, CLERK 

### 27