Gagliano v. United States of America

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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CHERYL F. GAGLIANO,
Individually and as Fiduciary of the Estate of
Raymond B. Gagliano, Deceased
Plaintiff,
MEMORANDUM
v. 	AND ORDER
24-CV-7930-SJB-JMW
UNITED STATES OF AMERICA,
Defendant.
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BULSARA, United States District Judge:
The Government seeks partial reconsideration of this Court’s decision denying
its motion to dismiss Cheryl F. Gagliano’s complaint. (Def.’s Mem. in Supp. of Mot. for
Partial Recons. (“Def.’s Mot.”), Dkt. No. 38-1). For the reasons below, the motion is
denied.
Reconsideration is “an extraordinary request that is granted only in rare
circumstances, such as where the court failed to consider evidence or binding
authority.” Van Buskirk v. United Grp. of Companies, Inc., 935 F.3d 49, 54 (2d Cir. 2019). It
“is not a vehicle for relitigating old issues, presenting the case under new theories,
securing a rehearing on the merits, or otherwise taking [another] bite at the apple.”
United States ex rel. Five Star Elec. Corp. v. Liberty Mut. Ins. Co., 758 F. App’x 97, 101 (2d
Cir. 2018) (quotation omitted). As such, “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
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conclusion reached by the court.” Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir.
1995). Though the Government contends its motion fits within these exacting
standards, it is nothing more than an attempt to relitigate the issues and make new
arguments after having its case-dismissal motion denied.
The Government argues that Gagliano failed to establish an entitlement to
equitable tolling because 1) in the Second Circuit, equitable tolling is only available
where a plaintiff is unaware of their cause of action, (Def.’s Mot. at 5 (citing Dillman v.
Combustion Eng’g, Inc., 784 F.2d 57, 60 (2d Cir. 1986)); and furthermore, in granting
tolling relief, 2) this Court improperly applied a “fairness” standard, (id. at 5–6).
Neither argument warrants reconsideration, nor does either have any merit.
As to the first point, the Government could have cited Dillman in its motion to
dismiss briefing but did not. New arguments—including new case authority—preclude
reconsideration. E.g., In re Kadoch, 662 F. App’x 26, 29 (2d Cir. 2016) (affirming denial of
reconsideration where the issues “could have been or should have been raised in the
original motion”). But in any event, the Government misconstrues Dillman: it does not
limit tolling only to those circumstances where the plaintiff is ignorant about her claim.
See Dillman, 784 F.2d at 61–62 (“Appellant failed to present any evidence that he was
unaware of his rights or that appellee misled him about his ADEA cause of action. Such
evidence is necessary before a court may equitably toll the EEOC filing deadline.”
(emphasis added)). Indeed, the Second Circuit has approved of tolling in
circumstances, including those involving misleading conduct, where plaintiffs were
well aware of their claims before a statute of limitations lapsed. E.g., Torres v. Barnhart,
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417 F.3d 276, 279–80 (2d Cir. 2005) (finding that tolling may be appropriate where a
diligent litigant was misled, even unintentionally, by counsel whom he believed had
filed his complaint). In fact, that was the premise of the Court’s original decision: the
Government misled Gagliano, causing her to file her lawsuit after the limitations period
expired. Gagliano v. United States, -- F. Supp. 3d --, No. 24-CV-7930, 2025 WL 3019152, at
*4–*5 (E.D.N.Y. Oct. 29, 2025) [hereinafter Gagliano I].
Second, the Government’s complaint that the Court’s opinion was based on
“fairness” is mere carping after having lost its motion; such disagreement cannot give
rise to reconsideration. It also happens to be wrong. The Court’s limited references to
“fairness,” Gagliano I, 2025 WL 3019152, at *3–*4, were not conjured, but direct citations
to binding Second Circuit precedent. See Phillips v. Generations Fam. Health Ctr., 723 F.3d
144, 150 (2d Cir. 2013) (“[W]e have recognized that [equitable tolling] is sometimes
necessary as a matter of fairness.” (quotations omitted)); Schwebel v. Crandall, 967 F.3d
96, 107 (2d Cir. 2020) (“[B]asic notions of fairness must preclude the [g]overnment from
taking advantage of [its error], and . . . a contrary result would work a serious and
manifest injustice.” (quotations omitted)). But nothing demonstrates the frivolous
nature of the Government’s position more than the very case it cites in its
reconsideration motion, (Def.’s Mot. at 5)—Saint-Jean v. Emigrant Mortgage Co.—which
explains that fairness is decidedly part of the equitable tolling inquiry. 129 F.4th 124,
143 (2d Cir. 2025) (“The core inquiry of our equitable tolling analysis is whether there is
unfairness to a plaintiff who is not at fault such that a district court may exercise its
discretion and equitable power to toll the statute of limitations. While the dissent
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criticizes our decision as creating a fairness-based tolling rule, equitable tolling has always
been based on principles of fairness and equity.” (emphasis added; quotations omitted)), cert.
denied, No. 25-229, 2026 WL 79895 (Jan. 12, 2026).
As a final note, the Government invokes the party presentation rule to contend
that the Court cannot cite cases that the parties themselves did not cite in their briefs—
or its doing so is a basis for granting reconsideration. (Def.’s Mot. at 1; Def.’s Reply
dated Dec. 30, 2025, Dkt. No. 40 at 3–4). The Government has, unfortunately, failed to
grasp the import of the doctrine. The party presentation principle applies to arguments
or issues, not cases. See United States v. Graham, 51 F.4th 67, 80 (2d Cir. 2022) (“The
party-presentation rule reflects the principle that courts normally decide only questions
presented by the parties[.]” (quotations omitted)). Plaintiff sought refuge under the
equitable tolling doctrine. The Court was free to cite to the appropriate authorities for
such arguments, even if the parties failed to raise them. “When an issue or claim is
properly before the court, the court . . . retains the independent power to identify and
apply the proper construction of governing law.” Torcivia v. Suffolk Cnty., 17 F.4th 342,
356 n.24 (2d Cir. 2021) (quoting Kamen v. Kemper Fin. Servs., Inc., 500 U.S. 90, 99 (1991)).
The motion for reconsideration is denied.
SO ORDERED.
/s/ Sanket J. Bulsara
SANKET J. BULSARA
United States District Judge
Date: 	January 20, 2026
Central Islip, New York
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