MEMORANDUM & ORDER Touro Law Center (“Defendant” or “Touro”) moves, pursuant to Local Civil Rule 6.3, for reconsideration (the “Reconsideration Motion”) (ECF No. 48) of that part of the Court’s March 20, 2024 Memorandum & Order (the “March Order”) (ECF No. 47) which denied Touro’s Motion to Dismiss the ADEA claim of James S. Gentile (“Plaintiff”). Alternatively, Touro asks this Court to modify the March Order to include a certification for interlocutory appeal (the “Interlocutory Appeal Request”). For the reasons that follow, Defendant’s Reconsideration Motion is DENIED. Likewise, Touro’s Interlocutory Appeal Request is DENIED. BACKGROUND For a thorough recitation of the factual and procedural background of this case, the Court refers the parties to the March Order, which granted in part and denied in part Touro’s Dismissal Motion. (See March Order at 2-7.)1 The Court recites only those facts necessary to resolve the instant motion. PROCEDURAL HISTORY On March 20, 2024, this Court granted in part and denied in part Touro’s Dismissal Motion. (Id. at 24.) Specifically, the Court granted Touro’s Dismissal Motion as to Plaintiff’s ADA and USERRA Claims but denied Defendant’s Dismissal Motion as to Plaintiff’s ADEA claim. (Id.) In declining to dismiss Plaintiff’s ADEA claim, the Court observed that it could not “adequately evaluate” whether Maligore’s remark during Plaintiff’s interview, that Touro “wanted to hire someone who would ‘stay with the job for many years’”, was a mere stray remark, or whether it bore some more ominous significance, without the benefit of a developed record. (Id. at 8-15.) The Court observed that the speaker of the comment, Maligore, was Plaintiff’s interviewer, and that at the motion to dismiss stage it was fair to infer, as the person conducting Plaintiff’s interview, Maligore could have played an influential role in shaping the Dean’s final hiring decision. (Id. at 14 n.8.) Given that the remark was allegedly made in Plaintiff’s interview, the comment also bore a meaningful nexus to the adverse employment decision of which Plaintiff complained. (Id.) Consequently, the Court concluded that, “while the stray remarks of a decision-maker, without more, cannot prove a claim of employment discrimination” (id. (internal alterations, quotation marks and citation omitted)), Plaintiff’s FAC pled facts “to sufficiently establish a plausible inference that age may have played an improper consideration in Defendants’ decision not to hire Plaintiff.” (Id. at 13.) The Court highlighted it could more fairly assess the probative nature of the Maligore remark if there was a more developed record, where such remark could be considered within the totality of the evidence. (Id. at 14.) On April 3, 2024, Touro filed the instant Motion. ANALYSIS I. Legal Standard A. Motions for Reconsideration “Motions for reconsideration may be brought pursuant to Rules 59(e) and 60(b) of the Federal Rules of Civil Procedure and Local Rule 6.3.” United States v. Real Prop. & Premises Located at 249-20 Cambria Ave., Little Neck, N.Y. 11362, 21 F. Supp. 3d 254, 259 (E.D.N.Y. 2014). A motion for reconsideration is appropriate under Rule 59(e) when the moving party believes the Court overlooked important “matters or controlling decisions” that would have influenced the prior decision. Shamis v. Ambassador Factors Corp., 187 F.R.D. 148, 151 (S.D.N.Y. 1999). Reconsideration is not a proper tool to repackage and re-litigate arguments and issues already considered by the Court in deciding the original motion. See Colon v. N.Y.C. Hous. Auth., No. 16-CV-4540, 2024 WL 714681, at *4 (S.D.N.Y. Feb. 21, 2024) (“A motion for reconsideration is not an invitation to ‘reargue those issues already considered when a party does not like the way the original motion was resolved.’” (quoting Lehmuller v. Inc. Vill. of Sag Harbor, 982 F. Supp. 132, 135 (E.D.N.Y. 1997))). Nor is it proper to raise new arguments and issues. Mikhaylova v. Bloomingdale’s Inc., No. 19-CV-8927, 2022 WL 17986122, at *1 (S.D.N.Y. Dec. 29, 2022) (“A motion for reconsideration is not ‘an occasion for repeating old arguments previously rejected nor an opportunity for making new arguments that could have been previously advanced.’”) (quoting Associated Press v. U.S. Dep’t of Def., 395 F. Supp. 2d 17, 19 (S.D.N.Y. 2005))). Local Rule 6.3 provides that a party moving for reconsideration must “set[] forth concisely the matters or controlling decisions” which the party believes the court has overlooked. Alexander v. JP Morgan Chase Bank, N.A., No. 19-CV-10811, 2024 WL 1193421, at *1 (S.D.N.Y. Mar. 20, 2024) (alteration in original). “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 be expected to alter the conclusion reached by the court.” Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995); see also Medoy v. Warnaco Empls’. Long Term Disability Ins. Plan, No. 97-CV-6612, 2006 WL 355137, at *1 (E.D.N.Y. Feb. 15, 2006) (“The standard…is strict in order to dissuade repetitive arguments on issues that have already been considered fully by the Court.”); Pickering-George v. Atty. Gen. of U.S., No. 10-CV-1103, 2011 WL 52363, at *1 (E.D.N.Y. Jan. 5, 2011) (Seybert, J.) (same); accord Miller v. Smith, No. 21-CV-2949, 2021 WL 5416624, at *1 (E.D.N.Y. Nov. 18, 2021) (Seybert, J.) (same). B. Certification for Interlocutory Review A district court may only “certify an issue for interlocutory review…if it decides that an order ‘involves a controlling question of law as to which there is substantial ground for difference of opinion’” and, additionally, “‘that an immediate appeal…may materially advance the ultimate termination of the litigation.’” Hermès Int’l v. Rothschild, 590 F. Supp. 3d 647, 650 (S.D.N.Y. 2022) (quoting 28 U.S.C. §1292(b)). “[A] ‘”question of law” [is one]…that the reviewing court could decide quickly and cleanly without having to study the record.’” Youngers v. Virtus Inv. Partners, Inc., 228 F. Supp. 3d 295, 298 (S.D.N.Y. 2017) (quoting Capitol Records, LLC v. Vimeo, LLC, 972 F. Supp. 2d 537, 551 (S.D.N.Y. 2013)). A question of law is considered controlling “if reversal of the district court’s order would terminate the action.” Id. (quoting Klinghoffer v. S.N.C. Achille Lauro Ed Altri-Gestione Motonave Achille Lauro in Amministrazione Straordinaria, 921 F.2d 21, 24 (2d Cir. 1990)). “To establish that there is a substantial ‘difference of opinion’ between courts that warrants interlocutory review, litigants must do more than just ‘claim that the court’s ruling was wrong’ or point to modest disagreements between different courts on an issue in dispute.” Hermès Int’l, 590 F. Supp. 3d at 651 (quoting Mills v. Everest Reinsurance Co., 771 F. Supp. 2d 270, 273 (S.D.N.Y. 2009)) see also Bayron-Paz v. Wells Fargo Bank, N.A., No. 22-CV-6122, 2023 WL 4706161, at *1 (S.D.N.Y. July 24, 2023) (“A motion for reconsideration 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.’” (quoting Analytical Surv., Inc. v. Tonga Partners, L.P., 684 F.3d 36, 52 (2d Cir. 2012))). Instead, “[t]his element ‘may be satisfied where the issues are difficult and of first impression…or where the party seeking interlocutory review can point to a substantial split in Second Circuit district court rulings on this issue.’” Lanzillotta v. GEICO Emps. Ins. Co., No. 19-CV-1465, 2021 WL 2381905, at *2 (E.D.N.Y. June 10, 2021) (quoting In re Air Crash at Georgetown, Guy. on July 30, 2011, 33 F. Supp. 3d 139, 155 (E.D.N.Y. 2014)). “Given the general policy of deferring appellate review until after the entry of a final judgment, interlocutory review is granted only in ‘exceptional circumstances.’” Schansman v. Sberbank of Russ. PJSC, No. 19-CV-2985, 2024 WL 1468414, at *2 (S.D.N.Y. Mar. 28, 2024) (quoting In re Flor, 79 F.3d 281, 284 (2d Cir. 1996)). “The party seeking an interlocutory appeal has the burden of showing [these] ‘exceptional circumstances’ to ‘overcome the general aversion to piecemeal litigation.’” Id. (quoting In re Perry H. Koplik & Sons, Inc., 377 B.R. 69, 73 (S.D.N.Y. 2007) (alterations in original)). Whether the party seeking interlocutory appeal has met this burden is “committed to the discretion of the district court.” Harriscom Svenska AB v. Harris Corp., 947 F.2d 627, 629 (2d Cir. 1991). II. Discussion A. Defendant’s Reconsideration Motion is Denied In support of its Reconsideration Motion, in sum, Touro argues the Court erred in concluding that Maligore’s statement to Plaintiff, made during Plaintiff’s interview, sufficed to “establish a plausible prime facie case of age discrimination.” (Reconsideration Motion at 2-5.) Touro characterizes Maligore’s statement as a “stray remark” which cannot constitute a sufficient basis for sustaining Plaintiff’s ADEA claim.2 (Id.) Additionally, Touro reasserts its argument that Gentile cannot plead ADEA, ADA, and USERRA claims in the alternative considering the “but-for” causation requirements to prove these claims. (Id. at 3-4.) The Court finds Touro’s arguments are merely a regurgitation of the theories it previously presented to the Court as part of its Dismissal Motion.3 This is a patently inappropriate basis upon which to file a motion for reconsideration. See Colon, 2024 WL 714681, at *4; see also Babcock v. Comput. Assocs. Int’l, No. 00-CV-1648, 2007 WL 526601, at *3 (E.D.N.Y. Feb. 9, 2007) (“This Court cannot merely consider the same arguments that were previously submitted.”). Indeed, such a motion may only be granted where the Court has overlooked “controlling decisions or data…that might reasonably be expected to alter the conclusions reached by the Court.” Id. Touro’s Reconsideration Motion is premised upon Touro’s belief that the Court erroneously resolved its Dismissal Motion; again, this is improper. See Howard v. Consol. Edison Co. of N.Y., Inc., No. 17-CV-0364, 2022 WL 2541387, at *1 (E.D.N.Y. July 7, 2022) (“A motion for reconsideration is not an opportunity ‘to reargue those issues already considered when a party does not like the way the original motion was resolved’” (quoting In re Houbigant, Inc., 914 F. Supp. 997, 1001 (S.D.N.Y. 1996))). Consequently, finding it to be baseless, Touro’s Reconsideration Motion is DENIED. B. Defendant’s Alternative Request, that the Court Modify the March Order to Include a Certificate of Interlocutory Appeal, is Also Denied In the alternative, Touro requests the Court amend the March Order so as to permit it to pursue an interlocutory appeal. Touro avers: the controlling question of law at issue is whether the existence of an alleged stray remark is sufficient to establish a claim for age discrimination in violation of the ADEA at the Motion to Dismiss Stage. In other words, can an alleged stray remark sufficiently support the ADEA’s but-for causation standard, particularly where the defendant offers alternative explanations for the adverse employment actions. (Reconsideration Motion at 6.) Since the Court previously dismissed all of Plaintiff’s remaining claims, Touro contends an immediate appeal of the Court’s March Order “would materially advance the ultimate termination of the litigation.” Id. The Court finds Touro has failed to demonstrate the existence of exceptional circumstances warranting the certification of an interlocutory appeal. See Meselsohn v. Lerman, No. 06-CV-4115, 2007 WL 9710989, at *5 (E.D.N.Y. Aug. 1, 2007) (denying request for certification of interlocutory appeal after denying defendant’s motion to dismiss since, “[a]t this early stage of the litigation, before the parties have even had the opportunity to engage in discovery, there is no reason to certify an appeal”). Moreover, Touro’s proffered question of law is not one “of first impression”; nor has Touro demonstrated there is a substantial split in the Second Circuit on this issue. First, the Court’s finding that Plaintiff could plead his ADEA, ADA, and USERRA claims in the alternative, notwithstanding the but-for causation standard required of certain claims, is in harmony with Judge Spatt’s decision in Fagan v. U.S. Carpet Installation, Inc. 770 F. Supp. 2d 490 (E.D.N.Y. Mar. 10, 2011).4 Similarly, the Second Circuit has already provided district courts with guidance in determining whether a stray remark can be probative of discriminatory intent. See e.g., Henry v. Wyeth Pharms., Inc., 616 F.3d 134, 149 (2d Cir. 2010). Indeed, the Court cited to, and applied, the relevant holding from Henry in adjudicating Touro’s Dismissal Motion. (See March Order at 12-15; see also supra n.2.) Like its Reconsideration Motion, at base, Touro’s request for interlocutory review is anchored in its contention that the Court’s finding was erroneous; this is improper. See Morris v. Flaig, 511 F. Supp. 2d 282, 318 (E.D.N.Y. 2007) (“A mere claim that a district court’s decision was incorrect does not suffice to establish substantial ground for a difference of opinion.” (quoting In re Citigroup Pension Plan Erisa Litig., No. 05-CV-5296, 2007 WL 1074912, at *2 (S.D.N.Y 2007))); see also In re Anderson, 550 B.R. 228, 238 (S.D.N.Y. 2016) (“Mere conjecture that courts would disagree on the issue or that the court was incorrect in its holding is not enough; ‘[f]or there to be a “substantial ground for difference of opinion” under the law, 28 U.S.C. §1292(b), there must be a “substantial doubt” that the district court’s order was correct.’” (quoting SPL Shipping Ltd. V. Gujarat Cheminex Ltd., No. 06-CV-15375, 2007 WL 1119753, at *2 (S.D.N.Y. Apr. 12, 2007))). Thus, like its Reconsideration Motion, Touro’s Interlocutory Appeal Request is DENIED. CONCLUSION For the stated reasons, IT IS HEREBY ORDERED that Plaintiff’s Motion for Reconsideration and/or Certification of an Interlocutory Appeal (ECF No. 48) is DENIED. SO ORDERED. Dated: April 22, 2024
