Barker v Victorious Life Christian Church

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[*1] Barker v Victorious Life Christian Church 2021 NY Slip Op 21181 Decided on June 24, 2021 Supreme Court, Albany County Mackey, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the printed Official Reports.

Decided on June 24, 2021
Supreme Court, Albany County

Abigail Barker, Plaintiff,


Victorious Life Christian Church, MARK RHODES, and DOMINICK BRIGNOLA, Defendants.


Melanie S. Wolk, Esq.

Trevett Cristo

Attorneys for Plaintiff

Two State Street — Suite 1000

Rochester, New York 14614

Carla Varriale-Barker, Esq.

Attorneys for Defendant Victorious Life Christian Church

850 Third Avenue, Suite 1100

New York, New York 10022

Bernadette Weaver-Catalana, Esq.

Austin D. O'Malley, Esq.

Manning Gross & Massenburg, LLP

Attorneys for Defendant Dominick Brignola

14 Wall Street, 28th Floor

New York, New York 10005

Mark John Sacco, Esq.

Law Office of Mark J. Sacco, PLLC

Attorneys for Defendant Mark Rhodes

12 Cornell Road

Latham, New York 12110
L. Michael Mackey, J.

In this action brought pursuant to the New York Child Victims Act, CPLR § 214-g,[FN1] defendant Victorious Life Christian Church ("VLCC") and defendant Dominick Brignola (collectively referred to herein as "defendants") separately move for a "gag" order restraining plaintiff Abigail Barker and her counsel from " communicating with representatives of the media, or with any person or entity whom plaintiff or [her] attorney knows or would have reason to know might disseminate information to the public or media pending the outcome of these proceedings" and an order requiring plaintiff and her counsel "to take all steps necessary to remove from the internet its prior media disclosures, press releases and presentations." Plaintiff opposes.

Plaintiff commenced this action by filing a Summons and Complaint on August 3, 2020 (see NYSCEF Document 24), alleging that defendant Mark Rhodes ("defendant Rhodes") sexually molested her in or about 1998 when she was five years old. The incident allegedly occurred while plaintiff and defendant Rhodes were members of VLCC in Troy, New York. Plaintiff claims, among other things, that the defendants orchestrated a cover-up of the alleged abuse and pressured plaintiff's parents not to pursue an investigation. The day after plaintiff filed her Summons and Complaint, plaintiff's attorney, Trevett Cristo, posted a "press release" on its Facebook page announcing that it was partnering with the Noaker Law Firm, LLC ("Noaker Law") and James, Vernon & Weeks, P.A. ("James, Vernon") for child sex abuse advocacy in New York State.[FN2] The press release contained a hyperlink to a copy of the Summons and Complaint in this action as well as a hyperlink to an article posted on Noaker Law's website titled "Albany Woman Files Sex Abuse Lawsuit Against Victorious Life Christian Church and Pastor; Says 'Now is the Time for Accountability.'" A hyperlink to Trevett Cristo's press release was also posted on Noaker Law's Facebook page. That same day, the Spectrum Local News published an article titled "Child Victims Act Suit Filed Against Troy Church" (see NYSCEF Document 27). The Spectrum Local News article reported on the filing of plaintiff's lawsuit and contained quotes from plaintiff's attorney, Melanie S. Wolk of Trevett Cristo, defendant Brignola, and the plaintiff. Trevett Cristo, Noaker Law, and James, Vernon posted hyperlinks to this article on their respective Facebook pages. The Facebook posts apparently prompted replies and commentary from those who viewed it. On January 3, 2021, the Albany Times Union published an article about plaintiff's lawsuit titled "Child abuse allegations against Troy church divide family, friends, community." The article begins with a quote from VLCC [*2]Pastor Phil Smith's sermon, delivered on the Sunday after plaintiff's complaint was filed, which seems to address the accusations in the complaint (VLCC posted a video of the sermon on its Facebook page). The article also quotes plaintiff describing how the lawsuit has affected her relationships with friends, family, and the church community (see NYSCEF Document 28).

Defendants now move for a "Protective Order/Gag Order" to prevent plaintiff and her counsel from any further contact with the media, any posting of links to other media articles, and an injunction requiring plaintiff's counsel to remove the prior social media posts. VLCC's counsel [FN3] asserts that the publicity brought by this lawsuit "has imposed a deep emotional burden upon its current members , imposes a possibility of some clients of the church's weekly meal, food pantry, counseling programs, or other services withdrawing their participation [and] imposes a possibility of loss of donors " (NYSCEF Document 23, ¶¶35 — 37). Similarly, defendant Brignola's counsel [FN4] asserts that the negative publicity surrounding this lawsuit has hurt Mr. Brignola's law practice and that the topic has been brought up by potential clients. Absent a "gag" order, defendants argue, there may be articles in the press and/or social media that will compromise the ability of the jury to render a fair verdict, untainted by the publicity this case has generated.

"Orders restraining extrajudicial comments by the parties or their attorneys are not generally permitted unless there is a reasonable likelihood of the existence of serious threat to the right to a fair trial." Lowinger v Lowinger, 264 AD2d 763, 763 (2nd Dept. 1999). "It is incumbent upon a trial court to ensure that each of the parties receives a fair trial and, to that end, possesses both the power and responsibility to safeguard their rights. The trial court, in so doing, must bear in mind the fact that prior restraints upon the rights of free speech and publication may only be overcome upon a showing of a clear and present danger of a serious threat to the administration of justice." Ash v Board of Managers of 155 Condominium, 44 AD3d 324, 325 (1st Dept. 2007) (citations and internal quotation marks omitted). The burden is on the party requesting the restraint to demonstrate that plaintiff's or counsel's statements will compromise their right to a fair trial (Ash v Board of Managers of the 155 Condominium, supra).

Here, the defendants have not met their burden of demonstrating entitlement to a gag order. Absent a factual showing of a necessity for prior restraints, imposition of a gag order is constitutionally impermissible (see New York Times Co. v Rothwax, 143 AD2d 592 [1st Dept. 1988]). Although the defendants have asserted, in conclusory fashion, that potential news/social media coverage might taint the jury pool, they have not made a factual showing that the possibility of such coverage presents a "clear and present danger" to the administration of justice. It is worth pointing out that defendant Brignola has made use of the press to advance his own view of this action. Indeed, the Spectrum News article quotes Mr. Brignola as saying that "The legal word games that attempt to create some type of culpability where none exists is sheer nonsense and actually poorly done." In other words, the plaintiff is not alone in making the type of statements to the press about which the defendants now complain.

This notwithstanding, the Court assumes that all counsel will act in a professional manner, not engage in any conduct that is against ethical rules, and not make announcements merely for the purpose of harming their adversary.

Accordingly, it is ORDERED that defendants' motions are denied.



Dated: June 24, 2021

Albany, New York


L. Michael Mackey, JSC

This memorandum constitutes the Decision and Order of the court. The Court has uploaded the original Decision and Order to the case record in this matter maintained on the NYSCEF website, whereupon it is to be entered and filed by the Office of the County Clerk. Counsel is not relieved from the applicable provisions of CPLR 2220 regarding service and notice of entry.

Papers considered: NYSCEF Documents No. 22 — 31 and 34 - 42. Footnotes

Footnote 1:On February 14, 2019, New York State enacted the Child Victims Act which, inter alia, (1) extended the statute of limitations on criminal cases involving certain sex offenses against children under 18 (see CPL § 30.10[f]); (2) extended the time within which civil actions based upon such criminal conduct may be brought to the victim's 55th birthday (see CPLR § 208[b]); and (3) opened a one-year (later extended to two-year) window reviving civil actions on which the statute of limitations had already run (even in cases that were litigated and dismissed on limitations grounds), effective August 14, 2019 (see CPLR § 214-g).

Footnote 2:Trevett Cristo's Facebook post contained the following statement: "Trevett Cristo is proud to partner with James, Vernon & Weeks, P.A. and Noaker Law Firm LLC to advocate for survivors of child sexual abuse in New York State. We look forward to working collectively on behalf of Abbey and countless others who have fallen victim to child sexual abuse" (see Exhibit "C" to Affirmation in Support).

Footnote 3:No officer or employee of VLCC has submitted an affidavit on the motion.

Footnote 4:Mr. Brignola has not submitted an affidavit on the motion.