Redlich v Stone

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[*1] Redlich v Stone 2016 NY Slip Op 50647(U) Decided on April 21, 2016 Supreme Court, New York County Braun, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on April 21, 2016
Supreme Court, New York County

Warren Redlich, Plaintiff

against

Roger Stone, Michael Caputo, Andrew Miller, Carl Paladino, and Kristin Davis, Defendants.



109005/11



Plaintiff Pro Se: Warren Redlich.

Attorneys for defendant Carl Paladino: Paladino, Cavan, Quinlivan & Pierce, by Shannon M. Heneghan, Esq., 295 Main Street, 210 Ellicott Square, Buffalo, New York 14203 (716) 852-8222.

Attorney for defendants Roger Stone, Michael Caputo, and Kristin Davis: Rupp Baase Pfalzgraf Cunningham LLC, by Jason G. Ulatowski, Esq., 1600 Liberty Building, Buffalo, New York (716) 854-3400.
Richard F. Braun, J.

Politics is too often a "dirty business". The allegations by plaintiff in this action, if true, exemplify that. This is a defamation action seeking a declaration that plaintiff Warren Redlich (Redlich) was libeled particularly by a mailer and in other communications; for compensatory damages for damage to reputation; and for punitive damages for willful, wanton, and malicious conduct. Defendant Carl Paladino (Paladino) moves for summary judgment dismissing plaintiff's complaint. Defendants Roger Stone (Stone), Michael Caputo (Caputo) and Kristin Davis (Davis) together also move for summary judgment dismissing the complaint.

Redlich, a registered Republican, was a candidate for Governor of New York on the Libertarian Party line in 2010. Stone, a well-known political operative, worked for the campaign of Davis, who ran for Governor on her own party line that year. Caputo was the campaign manager for Paladino who ran for Governor as the Republican candidate in 2010. Defendant Andrew Miller was Davis' campaign manager.

Redlich alleges that despite the ostensible political differences between the positions of Paladino and Davis in their respective campaigns, there were numerous overlapping ties between the Paladino and Davis campaign staffs, which were traceable to Stone, who made the recommendation that led to the hiring of Caputo by Paladino as his campaign manager. In April [*2]2010, before the Republican and Libertarian Party primaries, and before the Fall 2010 general election, in an email Stone proposed that Redlich run for Attorney General on the Republican line, or that Redlich run on the Libertarian line for Lieutenant Governor with Davis on that line for Governor. The rational of Stone was not to have plaintiff running for Governor and draw votes away from Paladino or, if running with Davis, to help her draw votes away from the Democratic candidate, Andrew Cuomo, who ultimately won the race for Governor. Redlich released the email to the press and commented that Stone was working for two different gubernatorial candidates.

Redlich asserts that Stone and Caputo hatched a scheme involving the publication and circulation of an anonymous, libelous mailer to harm Redlich's reputation and his candidacy. Redlich alleges that defendants decided to accuse him of being a "sexual predator", a "public danger", and a "sick twisted pervert" in the mailer. Redlich believes that Paladino and Davis approved the mailer, at the direction of Stone and Caputo. In October 2010, the mailer was published by being mailed to numerous homes in New York State (Stone said it was reportedly sent to 150,000 households), including in Redlich's former community, and even his mother received a copy.

One side of the mailer stated in bold type: "Sexual Predator Alert Albany Area". The statement is repeated on the other side. Beneath the header on that side is Redlich's photo with the statement:

This man, WARREN REDLICH who resides at .This man constitutes a public danger.He has exhibited irrational behavior. If you encounter this man proceed with caution.Now this sick twisted pervert is advocating his sick views running as a libertine candidate for governor, openly mocking law enforcement. Redlich hopes to win thousands of votes to endorse his sick alternative lifestyle.

Beneath that text, a photo with plaintiff's name, and the word "PREDATOR" underneath his name, the mailer states: Beware of Warren Redlich!If you see this man near a public school,CALL THE POLICE!If you see this man in your neighborhood,CALL THE POLICE!If you see this man near your family,CALL THE POLICE!

Redlich denies the accusations in the mailer, and defendants provide no proof of the statements about plaintiff. Plaintiff alleges that defendants put out the mailer after he had blogged a comment about the controversy over former Disney actress/singer Miley Cyrus' risqué behavior where he questioned why Miley Cyrus' actions should be controversial given that Shakespeare's Romeo and Juliet were teenagers.

Defendants-movants argue in their replies that plaintiff's affidavit in opposition to both motions is inadequate because it was not properly sworn before a notary public (the court's copy [*3]was sworn before a Florida notary public), and, as plaintiff has moved out of state and the affidavit was not before a New York notary public, he fails to provide a certificate, as required by CPLR 2309 (c), which provides:

An oath or affirmation taken without the state shall be treated as if taken within the state if it is accompanied by such certificate or certificates as would be required to entitle a deed acknowledged without the state to be recorded within the state if such deed had been acknowledged before the officer who administered the oath or affirmation.

First, defendants have not shown that they rejected the affidavit in opposition, and thus they waived their objection thereto, and the court can disregard the defect unless defendants-movants have demonstrated that a substantial right of theirs has been prejudiced (CPLR 2101 [f]; cf. Pion v New York City Hous. Auth., 125 AD3d 462 [1st Dept 2015] ["Defendant waived its objection under CPLR 2101 (b) by failing to reject the notice of claim within 15 days of its receipt (see CPLR 2101 [f]). Moreover, defendant does not argue that the alleged defect in the notice of claim prejudiced a substantial right (id.)."]; Moccia v Carrier Car Rental, Inc., 40 AD3d 504 [1st Dept 2007] [although the plaintiff raised a timely objection, the defect is correctable and was corrected]). Furthermore, CPLR 2001 provides that the court may permit a mistake, omission, defect or irregularity, to be corrected, upon such terms as may be just. Alternatively, CPLR 2001 provides that "if a substantial right of a party is not prejudiced, the mistake, omission, defect or irregularity shall be disregarded ." As no prejudice has been shown by defendants, the court has disregarded the defects and omission.

A party moving for summary judgment must demonstrate that there are no disputed issues of fact and that he, she, or it is entitled to judgment as a matter of law, pursuant to CPLR 3212 (b) (Smalls v AJI Indus., Inc., 10 NY3d 733, 735 [2008]; Pokoik v Pokoik, 115 AD3d 428 [1st Dept 2014]; see Gammons v City of New York, 24 NY3d 562, 569 [2014]). To defeat summary judgment, the party opposing the motion has to show that there is a material question(s) of fact that requires a trial (Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; Kershaw v Hospital for Special Surgery, 114 AD3d 75, 82 [1st Dept 2013]; see Hoover v New Holland N. Am., Inc., 23 NY3d 41, 56 [2014]). In deciding a motion for summary judgment, the court should interpret the evidence in a manner which most favors the opposing party (see Kershaw v Hospital for Special Surgery, 114 AD3d at 82). In this action, a review of the complaint shows that many of plaintiff's allegations are circumstantial, which should be viewed "in the light most favorable to the non-movant" (Gurfein Bros. v Hanover Ins. Co., 248 AD2d 227, 229 [1st Dept 1998]). The court may consider all of the factual record in full, including circumstantial evidence (see Prozeralik v Capital Cities Communications, 82 NY2d 466, 475 [1993]; Treston v Allegretta, 181 AD2d 470, 471 [1st Dept 1992] [summary judgment was denied to the defendants in a products liability action because of circumstantial evidence that was provided by the plaintiff]; cf. Brito v Manhattan & Bronx Surface Tr. Operating Auth., 188 AD2d 253, 254 [1st Dept 1992] ["It has long been recognized that, in circumstantial cases, the possibility that an accident may have been caused by factors other than defendant's negligence does not mandate a conclusion that plaintiff has failed to make out a prima facie case (Ingersoll v Liberty Bank, 278 NY 1, 7). Rather, [i]t is enough that [plaintiff] shows facts and conditions from which the negligence of the defendant and the causation of the accident by that negligence may be reasonably inferred' (supra, at 7; see also, Stein v Palisi, 308 NY 293; Snell v [*4]MVAIC, 34 AD2d 872)."]). Hearsay evidence can be used to defeat summary judgment as long as that evidence is not the only evidence relied upon (Rugova v Davis, 112 AD3d 404 [1st Dept 2013]).

Generally, as the Court in Khan v New York Times Co. (269 AD2d 74, 76-77 [1st Dept 2000]), instructed:

Where plaintiff is a public figure, he must prove, by clear and convincing evidence,' that the published material is false and that defendant published the material with actual malice, i.e., with 'knowledge that it was false or with reckless disregard of whether it was false or not' ' (citation omitted). A reckless disregard' for the truth requires more than a departure from reasonably prudent conduct (citation omitted). There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication' (citation omitted). The standard set forth by the Supreme Court is a subjective one, requiring that there be sufficient evidence to permit the conclusion that the defendant had a high degree of awareness of ... probable falsity' (citation omitted), or must have entertained serious doubts as to the truth of his publication' (citation omitted).

Paladino notes that the mailer identifies People for a Safer New York (PSNY) as the organization that produced the mailer. He swears that he is not affiliated with that organization. Paladino's position is that plaintiff is unable to provide any factual basis or evidence that Paladino was in any way connected to the mailer, and that he was not involved with it in any manner. Paladino further contends that plaintiff has not sufficiently set forth facts related to the time and location of the defamatory statement and specific persons to whom the publication was made (see Murphy v City of New York, 59 AD3d 301 [1st Dept 2009]). To the contrary, plaintiff clearly has shown all that. In addition, plaintiff alleges that Paladino had a relationship with Stone and the other defendants regarding the mailer, and approved it.

Stone, Caputo, and Davis argue that there is no evidence to support plaintiff's claims that Stone, Caputo, and Davis were involved with the mailer. The position of Stone, Caputo, and Davis is that they had nothing to do with the mailer, did not and do not know who did, and had no affiliation with PSNY.

In opposition to the motion by those defendants, plaintiff's focus is more on Stone. Plaintiff avers that Stone admitted to plaintiff on September 10, 2014 that Stone worked with Caputo and Paladino to prepare and send the mailer. He further states that Stone said that Paladino ordered Stone and Caputo to "get that (expletive) (expletive)", referring to plaintiff. Furthermore, Stone supposedly told a Times Union reporter that he saw the mailer, that it was accurate, and that he urged PSNY "to do this". At his deposition, Stone did not remember that specific conversation with the reporter whom Stone said is hostile to him but did not specifically deny that it took place.

As to defendant Caputo, he sent out an email from his internet domain in which he stated that plaintiff "made strange statements about sex with teens", and another email in which he spoke of plaintiff "PROMOTING SEX WITH TEENAGERS", and being "SO OPEN-MINDED ABOUT SEX WITH KIDS". Though plaintiff does not show who they were sent to other than plaintiff himself, the body of the emails were about plaintiff, rather than directed to him, which would seem to indicate that they were sent to people besides plaintiff. Caputo also commented [*5]to the Wall Street Journal that plaintiff was "busy leering at teen girls ."

Although plaintiff unsuccessfully tries to implicate Davis through circumstantial evidence, in his affidavit in opposition plaintiff admits that he has no evidence that Davis participated in the mailer. Summary judgement should be awarded to defendant Davis dismissing the complaint as to her.

Plaintiff states that the information in the mailer was false and defamatory, as were the emails and blog statements, and made with malicious intent. Plaintiff asserts the harm that the mailer has created for him and his family. His mother still sadly and angrily brings it up at times. One of plaintiff's former New York neighbors called the police after seeing the mailer out of concern for living near plaintiff.

As to defendants Paladino, Stone and Caputo, plaintiff has demonstrated that there are questions of fact that defeat summary judgment. If true, their actions were reprehensible, particularly to the extent that any of them were involved with the mailer that was sent to plaintiff's mother and neighbors. It will be for a jury to decide whether those defendants are liable to plaintiff. Therefore, by separate decisions and orders, Paladino's motion was denied, and the motion by Stone, Caputo, and Davis was granted to the extent of awarding summary judgment to Davis dismissing the complaint as to her only.



Dated: April 21, 2016

New York, New York

____________________________________

RICHARD F. BRAUN, J.S.C.