16‐1922‐cv
Esposito v. State 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 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 COURTʹS 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
ʺSUMMARY ORDERʺ). 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 20th day of June, two thousand seventeen.
PRESENT: RALPH K. WINTER,
GUIDO CALABRESI,
DENNY CHIN,
Circuit Judges.
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LUISA C. ESPOSITO,
Plaintiff‐Appellant,
v. 16‐1922‐cv
STATE OF NEW YORK, THE OFFICE OF
COURT ADMINISTRATION OF THE
UNIFIED COURT SYSTEM OF THE STATE
OF NEW YORK, THOMAS J. CAHILL, in his
official capacity, in his individual capacity,
FRED DECICCO, NAOMI GOLDSTEIN, in her
official capacity, in her individual capacity,
ALBERT S. BLINDER, in his official capacity,
in his individual capacity, Harvey Gladstein &
Partners LLC, f/k/a Gladstein & Isaac, ALLEN
H. ISAAC, individually, as a partner of Harvey
Gladstein & Partners LLC, f/k/a Gladstein &
Isaac, CITY OF NEW YORK, RAYMOND
KELLY, ROBERT ARBUISO, in his official and
individual capacity, ADAM LAMBOY, in his
official and individual capacity, ARTHUR
POLLACK, CONRAD POLLACK, individually
and as a partner of Pollack, Pollack, Isaac &
DeCicco, LLP, BRIAN J. ISAAC, individually
and as a partner of Pollack, Pollack, Isaac &
DeCicco, LLP, POLLACK, POLLACK, ISAAC
& DECICCO, LLP, GLADSTEIN & ISAAC,
Jane and John Does,
Defendants‐Appellees.
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FOR PLAINTIFF‐APPELLANT: LUISA C. ESPOSITO, pro se, West Hempstead,
New York.
FOR DEFENDANT‐APPELLEES DAVID LAWRENCE III, Assistant Solicitor
STATE OF NEW YORK, OFFICE OF General, Barbara D. Underwood, Solicitor
COURT ADMINISTRATION OF THE General, Steven C. Wu, Deputy Solicitor
UNIFIED COURT SYSTEM OF THE General, for Eric T. Schneiderman, Attorney
STATE OF NEW YORK, THOMAS J. General of the State of New York, New York,
CAHILL, NAOMI GOLDSTEIN, AND New York.
ALBERT S. BLINDER:
FOR DEFENDANT‐APPELLEE JONATHAN L. SHAPIRO, Traycee E. Klein,
HARVEY GLADSTEIN & PARTNERS Epstein Becker & Green, P.C., New York, New
LLC: York.
FOR DEFENDANT‐APPELLEE Kuuku Minnah‐Donkoh, Gordon & Rees LLP,
ALLEN H. ISAAC: New York, New York.
FOR DEFENDANT‐APPELLEES CITY Devin Slack, Antonella Karlin, Assistant
OF NEW YORK, RAYMOND KELLY, Corporation Counsels, for Zachary W. Carter,
ROBERT ARBUISO, ADAM Corporation Counsel of the City of New York,
LAMBOY: New York, New York.
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FOR DEFENDANT‐APPELLEES Erin A. OʹLeary, Morgan Melhuish Abrutyn,
POLLACK, POLLACK, ISAAC & New York, New York.
DECECCO, LLP, ARTHUR
POLLACK, CONRAD POLLACK,
BRIAN J. ISAAC:
Appeal from orders of the United States District Court for the Southern District
of New York (Cote, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the orders of the district court are AFFIRMED.
Luisa C. Esposito, pro se, appeals from the district courtʹs May 12, 2016 order,
denying as untimely her third motion pursuant to Federal Rule of Civil Procedure 60 to
reopen her 2008 case (the ʺRule 60 motionʺ) in which she asserted 42 U.S.C. § 1983 and
state law claims based on allegations that her former attorney, Allen H. Isaac, sexually
assaulted and harassed her and that others conspired to protect him from civil
penalties. She also appeals from the district courtʹs June 9, 2016 order, denying her
motion for reconsideration of the denial of her Rule 60 motion. We assume the partiesʹ
familiarity with the underlying facts, the procedural history, and the issues on appeal.
In August 2008, the district court dismissed Espositoʹs underlying complaint on
the grounds that, inter alia, her § 1983 claims were not cognizable in federal court. We
affirmed that dismissal on December 8, 2009. See Esposito v. New York, 355 F. Appʹx 511
(2d Cir. 2009) (summary order). Esposito filed motions to reopen her case in 2010 and
2012, and both motions were denied. Esposito appealed the denial of her 2010 motion
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and we affirmed. Esposito v. New York, 453 F. Appʹx 37 (2d Cir. 2011) (summary order).
She did not appeal the denial of the 2012 motion. In the Rule 60 motion that is the
subject of this appeal, Esposito averred that she obtained newly discovered evidence
that corroborated the factual allegations underlying her complaint and that certain
defendants had perpetrated a fraud on the district court. The district court denied
Espositoʹs Rule 60 motion and a subsequent motion to reconsider on grounds that
Espositoʹs request for relief was untimely.
We review the denial of a Rule 60 motion and a motion to reconsider for abuse of
discretion. Simon v. City of New York, 727 F.3d 167, 171 (2d Cir. 2013); Stevens v. Miller,
676 F.3d 62, 67 (2d Cir. 2012). A district court abuses its discretion ʺwhen (1) its decision
rests on an error of law (such as application of the wrong legal principle) or a clearly
erroneous factual finding, or (2) its decision ‐‐ though not necessarily the product of a
legal error or a clearly erroneous factual finding ‐‐ cannot be located within the range of
permissible decisions.ʺ Zervos v. Verizon N.Y., Inc., 252 F.3d 163, 169 (2d Cir. 2001).
We identify no abuse of discretion here. The district court correctly declined to
treat Espositoʹs Rule 60 motion as one seeking relief for fraud on the court under Rule
60(d)(3), which is not subject to a time limitation, because the motion largely described
ʺnewly discovered evidence,ʺ and, in any event, the alleged misconduct on the part of
certain defendants did not constitute ʺfraud on the court.ʺ See Hadges v. Yonkers Racing
Corp., 48 F.3d 1320, 1325 (2d Cir. 1995) (noting that fraud on the court ʺis limited to fraud
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which seriously affects the integrity of the normal process of adjudicationʺ); Gleason v.
Jandrucko, 860 F.2d 556, 559‐60 (2d Cir. 1988) (noting that even ʺ[a]fter‐discovered
evidence of alleged perjury by a witnessʺ and ʺallegations of nondisclosure during
pretrial discoveryʺ are insufficient to establish fraud on the court).1 Moreover, because
Espositoʹs Rule 60 motion was based on newly discovered evidence, the district court
correctly treated it as one brought under Rule 60(b)(2), allowing relief from the judgment
based on newly discovered evidence, and not Rule 60(b)(6), allowing relief from the
judgment for ʺany other reason that justifies relief.ʺ See United States v. Intʹl Bhd. of
Teamsters, 247 F.3d 370, 391‐92 (2d Cir. 2001) (ʺ[I]f the reasons offered for relief from
judgment can be considered in one of the more specific clauses of Rule 60(b), such
reasons will not justify relief under Rule 60(b)(6).ʺ). Accordingly, as the district court
concluded, Espositoʹs motion should have been brought within a year of the entry of
judgment. Fed. R. Civ. P. 60(c)(1). The motion, however, was filed more than seven
years after entry of the judgment in 2008, and was therefore untimely. For the same
reasons, the district court correctly denied Espositoʹs motion to reconsider.
. . .
We have considered Espositoʹs remaining arguments and conclude they are
without merit. As we advised Esposito at oral argument, the power of the federal
1 Espositoʹs argument on appeal that her motion should have been considered an
ʺindependent actionʺ under Rule 60(d)(1) is waived because she did not raise it in the district
court. See Universal Church v. Geltzer, 463 F.3d 218, 228 (2d Cir. 2006).
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courts is limited and there is not a federal remedy for every wrong. Notwithstanding
the serious harm Esposito seems to have suffered, it appears that there is no federal
remedy to redress her injury. Furthermore, we note that this is Espositoʹs third appeal
and that she has unsuccessfully moved to reopen her case in the district court three
times. All of these efforts have been rejected. Yet, Esposito suggested at oral
argument that she will continue to file motions to reopen the case. If she does so
without a proper basis, the district court may wish to consider implementing a filing
restriction and advising Esposito that she may face sanctions if she continues to file
meritless motions.
Accordingly, we AFFIRM the orders of the district court.
FOR THE COURT:
Catherine OʹHagan Wolfe, Clerk
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