Azzarmi v. 55 Fulton Market

Background

Pro se plaintiff Aasir Azzarmi moved for reconsideration of two prior orders. A reconsideration motion asks the court to revisit an earlier ruling because it overlooked a matter or controlling legal decision. The first challenged order, dated January 27, 2023, denied Azzarmi’s request under Federal Rule of Civil Procedure 56(d) to suspend briefing on defendants’ pending motion for summary judgment so she could depose Port Authority Police Department Detective Philip Tysowski. Azzarmi also asked the court to exclude Tysowski’s declaration under Rule 37(c), which can allow sanctions for failing to provide required information during discovery.

The second challenged order, dated August 30, 2022, denied Azzarmi’s request to strike defendants’ August 25, 2022 letter. That letter identified Tysowski, described information to which he could testify, and attached an intelligence bulletin stating that Azzarmi was wanted for grand larceny, criminal impersonation, and theft of services.

Court’s Analysis

The court explained that reconsideration must be requested within 14 days and must identify matters the court overlooked. It said reconsideration is not a way to relitigate old issues, present new theories, or obtain another hearing on the merits.

The court held that Azzarmi’s request concerning the August 30, 2022 order was untimely. As to both orders, the court found that Azzarmi had not identified any matter that was before the court earlier but overlooked. The court said the January 27 order had addressed the required initial discovery disclosures and had explained that the August 25 letter provided the information required about Tysowski. Because the letter satisfied the defendants’ obligation to update their disclosures, the court concluded that Azzarmi was not entitled to exclude Tysowski’s evidence or obtain a late deposition on that basis.

The court also rejected Azzarmi’s argument that Tysowski’s testimony concerned an affirmative defense that defendants had not pleaded. It explained that defendants did not need to plead an affirmative defense to offer evidence challenging the truthfulness of Azzarmi’s pleadings and testimony.

The court found that Tysowski’s supplemental reports were not a basis for reconsideration. To the extent those reports showed that Tysowski planned to arrest Azzarmi, they merely confirmed information already disclosed in the August 25 letter and intelligence bulletin. The court said that even if Azzarmi reasonably chose not to seek the deposition because she feared arrest and prosecution, that decision did not qualify for relief under Rule 56(d) or Rule 37(c).

The court called Azzarmi’s theory that the criminal investigation had been fraudulently created by a lawyer involved in unrelated litigation speculation that did not affect this defamation case or the motions at issue. It also rejected Azzarmi’s Confrontation Clause argument because that constitutional protection applies in criminal proceedings and does not prohibit declarations supporting summary-judgment motions in civil cases.

Finally, the court noted that Azzarmi had expressly waived her protection against compelled self-incrimination concerning Tysowski and the August 20, 2021 incident at John F. Kennedy Airport. The court therefore concluded that she no longer needed additional discovery time under Rule 56(d), which can permit discovery when a party cannot otherwise present facts needed to oppose summary judgment. The court deferred deciding whether defendants could resume questioning Azzarmi about matters on which she had previously refused to testify if summary judgment were denied.

Disposition

Judge Moses denied the reconsideration motion at docket entry 138. The court stated that Azzarmi’s opposition to defendants’ summary-judgment motion remained due on February 10, 2023. The opinion does not rule on defendants’ summary-judgment motion itself.