SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ORANGE

--------------------------------------------------------------------X BONNIE C. BRENNAN,

Plaintiff;

-against-

TOWN OF NEW WINDSOR, REPUBLICAN COMMITTEE, CARMEN R, DUBALDJ, JR., JACK D'ANGELO, CARL E. DUBOIS, ORANGE COUNTY SHERIFF

Defendants. --------------------------------------------------------------------X

Index No. 201317434

Assigned to the Honorable Gretchen Walsh, J.S.C.

MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANTS MOTIONS FOR SUMMARY JUDGMENT

SUSSMAN & WATKINS Attorneysji!r Plaint!fl Michael H. Sussman, Esq. P.O. Box !005 I Railroad A venue, Stc. 3 Goshen, NY 10924

B. DuBois breached his statutory duty under Section 160.50 oftbe Criminal Procedure Law to ensure Brennan's photo was sealed and not released.... 26

C. DuBois' release of Brennan's mugshot was an indispensable step in the New Windsor Defendants' use of same for advertising purposes, in violation of Brennan's privacy rights under Sections 50 and 51 of the Civil Rights Lavv...... ... . . . . . . . . . .. . . . . . . .. . . . . . . . . . . . . . . .. . . . . . . ... . . . . . .. ...... 30

D. The record amply establishes DuBois' personal liability..................... 33

E. Brennan's failure to serve the County with a notice of claim does not preclude her claims against DuBois in his individual capacity............. 33

CONCLUSION.......................................................................................... 36

II

Hutchinson v Proxmit:~. 443 us 111 (1979)................................................. .................................... 18

hnmuno AG v. J. Moor-Jankowski, 77N.Y.2d235(1991) ................................................................................... 13

James v. Gannett Co .. Inc., 40N.Y.2d415(1976) ................................................................................... 10

Juric v. Bergstraesser, 44 A.D.1186 (3d Dep 't. 2007)........................................................... .... .. .. .. . .. . 25

Knutt v. Metro lnt'L S.A., 91 A.D.3d 915 (2d Dep't. 2012)................. .... .... ..... .... .... .. ...... .... ................ 9, 10

Lino v. City of New York, 101 A.D.3d 552 (1st Dep't. 2012) ............................................................ 25, 26,27

Loder v. Nied, 89A.D.3d 1197(3dDep't.2011) ......................................................... 9.11, 12,13

Martin v. Cohoes, 37N.Y.2d 162 (1975) .................................................................................... 8

Martin v. Curran, 303 N.Y.276(1951) .................................................................................... 23

Nekos v. Kraus, 62 A.D.3d 1144 (3d Dep't. 2009)............ ........... .......... .................. .................. 14

New York Times Co. v. Sullivan, 376 u.s. 254 (1964)......................................................................... .......... 14

Ocean State Seafood. Inc. v. Capital Newspaper. Division of the Hearst Corp., 112 A.D.2d 662 (3d Dep't. 1985)................................................................ 20,21

People' v. Patterson, 78 N.Y.2d 711 (1991).............................................................................. ..... 27

Polak v. City of Schenectady, 181 A.D.2d 233 (3dDep't. 1992) ..................................................................... 35

prozeralik v. Capital Cities Comms., Inc._, 82N.Y.2d466(1993) ................................................................................... 14

iv

Ramanathan v. Ahm·on, 109 A.D.3d 529 (2d Dep't. 2013) ...................................................... 9, 10, 12, 25,34

Rausman v. Baugh, 248 A.D.2d 8 (2d Dep't. 1998)................................. .... .... .. .. .. . .... .. .. .. ...... .. .. .. .. 22

Romero v. State of New York, 33 Misc.3d 599 (Ct.CI. Jun. 2L 201 1)........................................................... 25.26

Roth v. United Fed'n. of Teachers, 5 Misc.3d 888 (Sup.C:t. Kings Cnty. 2004)......................................................... 23

Silsdorf v. Levine,, 59 N.Y.2d 8 (1983)... ... .. .... .... ........... ...... ....... ..... ......... .......... ..... ............ .... 11

St. Amant v Thompson, 390 us 727 (1968).. .... .. .. .. .. . .. .. . .. .. .. .. .. .. .. .. ...... .. .. .. .. .... .... .... .. .. .. .. .. .... .. .... .... 18

Stewardv. World-Wide Automobiles Corp., 20 Misc.2d 188 (Sup.O. N.Y. Cnty. 1959)......................................................... 16

Suozzi v. Parente, 202 A.D.2d 94 (2d Dcp't. 1994)...................................................................... 19

Sweenev v. Prisoners' Le_gal Scrvs. ofN.Y., 146 A.D.2d 1 (3d Dcp't. 1989)........................................................................ 12

Tiano v. Lane, 260 A.D.2d 908 (3d Dep't I 999).................... .... .. .. .. .. .... .. .. .. .. .. .. .. .. .... .............. 8

Vega v. Restani Const. Corp., 18N.Y.3d499(2012) ................................................................................... 8

Zuckennm1 v. Citv of New York, 49 N.Y.2d 557 (I 980)... ... ...... .... ... ..... ......... ... ..... .......... ......... .................. ..... 8

Statutes

N.Y. C.P.L.R. § 3026... ... .. .... .. . ... .. .. .. .. . . .. . .. . .. .. . . .. . .. .. .. .. .. .. .. .. .. .... .. .. .. . .. .... .............. 25

N.Y. C.P.L.R. § 3212(b)......................................................................................... 8

N.Y. Civ. Pro. L. § !60.50 ............................................................................. 24, 25,26

N.Y. Civ. Pro. L. § 160.50(1).............................................................................. 27,28

v

N.Y. Civ. Pro. L. § 160.55................................................................................. 25,26

N.Y. Civ. Rights L. §50 .. , ................................................................................. 24,30

N.Y. Civ. Rights L. §51.................................................................................... 24,30

N.Y. Civ. Rights L. § 74. .......................... ... ............ ..................... .................. ........ 20

N.Y. Gen. Municipal L. § 50-e(l)(b)...... ........... .............. .... ......................... ............... 34

N.Y. Penal L. §215.50(3).... .... .. .. .. .. .. .. .. .. .. .. .. . .. .. .. . .. . .. . .. .. .................. ... .. ............ 16, 19

N.Y. Pub. Officers L. § 18(1) ................................................................................... 34

N.Y. Pub. Otlicers L. § 18(4) ................................................................................... 34

N.Y.l'ub. Officers L. § 87(2)(e) ................................................................................ 29

VI

PRELIMINARY STATEMENT

This case is about the unapologetic delnming of a candidate for public office and the

impermissible and insensitive invasion of her privacy that fncilitated this.

Tn 2012, PlaintiJl'Bonnie C. Brennan ran for a seat on the Town Council of the Town of

New Windsor, New York. Over the prior six years, she had been the victim of domestic violence

and, as such, was involved in numerous contacts with the local police agency. After one such

incident in 2008, she was arrested, but the charges were dismissed and, by operation of law. the

files relating to that arrest sealed.

In the weeks leading up to the 2012 election, on behalf defendant .lack D'Angelo, a short­

term incumbent who Brennan was challenging for a seat on the Town of New Windsor Town

Board, defendant Carmen Dubaldi, Jr., then the chair of the defendant New Windsor Republican

Committee ("NWRC"), sought from the Orange County SheriJTs Ot11ce a copy of Brennan's mug

shot from her 2008 arrest for use in D'Angelo's political advertisements. 1 Despite the required

sealing of these records .. under policies promulgated by defendant Orange County Sheriff Carl

DuBois and at his direction, the Sheriff's Office released Brennan's mug shot to Duhaldi. Acting

as D'Angelo's agent, Dubaldi then used the mug shot in a paid political advertisement and political

mailer, both of which falsely represented to the public that Brennan had a criminal record.

On September 5, 2013, Brennan commenced this action against the New Windsor

Defendants and Sheriff DuBois. Her complaint alleged that the New Windsor defendants defamed

her by falsely imputing criminality to her through their political advertisement and mailer. She

also alleged that, by permitting the wrongli.il release of her sealed mug shot for use in advertising

D'Angelo's candidacy and soliciting voters to procure his election to a paid position, DuBois

1 Defendants D'Angelo, Dubaldi and NWRC are collectively rctCrred tons the "New Windsor Defendants" herein_

breached his statutory duty under Section J 60.5 of the New York Criminal Procedure Law to keep

her records sealed and participated in the violation of her right to privacy under Sections 50 and

5 J of the New York Civil Rights Law2

In May 2014, this Court denied the defendants • motions to dismiss the complaint and, in

doing so. resolved in Brennan's favor many of the same legal issues now raised in the defendants'

respective summary judgment motions. Specifically, by denying defendants' motions, the court

held as a matter of law (either explicitly or implicitly) that (I) the alleged de!~unatory statements

are susceptible of a defamatory meaning; (2) the alleged defamatory statements are not non-

actionable opinion; (3) the complaint amply states causes of action against DuBois for violating

Brennan's rights under Section 160.5 of the New York Criminal Procedure Law and Sections 50

and 51 of the New York Civil Rights Law; (4) the use of Brennan's mug shot was for "advertising

purposes," as that term is defined by Sections 50 and 51 of the New York Civil Rights Law and

(5) Brennan's claim against DuBois is not precluded by her failure to serve a notice of claim upon

the County of Orange. These holdings provide the law of the case for purposes of deciding these

summary judgment motions.

Discovery has now been completed, and the defendants have moved tor summary

judgment. But a review of the record taken in the light most J[worable 10 Brennan dictates that the

defendants' motions should be denied. As explained in greater detail herein, a reasonable jury

could conclude from the record evidence that the New Windsor Defendants' published false and

defamatory statements about Brennan with reckless disregard for the truth and that DuBois

breached a statutory duty to keep Brennan's mugshot sealed and allowed the release of that photo

1 As discussed in greater detail herein, although Brennan's complaim docs not explicitly reference these statutory provision, the tacts aileged therein, especially when amplified by Brennan's Bill of Particulars, sutliciently state these causes of action, and this court has already acknowledged this thct in denying DuBois' motion to dismiss the complaint.

2

for advertising purposes, thus wrongfully invading her pnvacy. Consequently, defendants'

motions should be denied and Brennan's claims tried to a jury.

STATEMENT OF FACTS

Bonnie Brennan has resided in the Town of New Windsor since 2006. See Ex. I a 4, 143

She is an associate appellate attorney with the Legal Aid Society, Criminal Appeals Bureau in

New York City and an adjunct professor in New York University's International Relations

program.ld. at 8-9. In the spring of2012, she decided to run for an open seat on the New Windsor

Town CounciL !d. at 19-20.

Brennan opposed incumbent defendant .lack D'Angelo. He had been appointed to the

Town Council earlier that year to fill the seat of a Councilwoman who had passed away. See Ex.

2 at I 0-ll. His brother, a former police officer who worked as a court officer in the local Town

Court and, through this work, was friendly with the Town Supervisor, George Green (also a former

police officer), recommended him to Green for this appointment. !d. at 11-14,26. Based on this

recommendation, Green approached D'Angelo to see if he was interested in filling the vacancy,

and D'Angelo accepted. !d. at 11-27. Prior to, and in preparation for his appointment, D'Angelo

joined the NWRC and began attending meetings regularly. Jd. He then assumed office l(w the

remainder of the year, and commenced his campaign to win a new term and retain the seat. Jd.

D'Angelo did not directly manage or fund his own campaign. !d. at 28. Instead, he

employed defendant Carmen Dubaldi, Jr. for these tasks. jd.: Ex. 3 at 35-36. Dubaldi, a twenty-

plus year employee of Orange County, has been intimately involved with the NWRC and County

politics since the late-l980s. See Ex. 3 at 9-l 0, 15-18. Over the years, and through his role with

the NWRC, Dubaldi has managed the campaigns of a number of Republican candidates and office-

:-Citations to numbered Exhibits refer to the exhibits annexed to the Afflrmation of Michael H. Sussmnn, Esq. in Opposition to DetCndants' Motions for Summary Judgment, sworn to April 14, 20!6.

3

holders, including State Senator William Larkin, former-State Assemblywoman and current

County Clerk Annie Rabbit and all New Windsor Republican orticials, including Green. Jd. at 18-

25. He has also otherwise been involved with the campaigns of many others, including the past

three County Executives and defendant Sheri11' Carl DuBois and his predecessor Frank Bigger. !d.

Perhaps not so ironically, Dubaldi has now plead guilty to Grand Larceny for stealing monies from

those campaigns. See hlm.:f.['cvww.rec91:!:l9nline&Q!.l1/n~',YJi[20 !6Q1J)/dubalc!i.::pkads-guiltY-to­

stealing-I20k-fl:om-dian<;t~larkin-rabbitt-campaigiJ::;!££Ol!Jlt~ (last visited Apr. 14, 2016).

In running D'Angelo's campaign, pursuant to NWRC practice, Dubaldi received

unanimous authorization Ji·om the NWRC membership to expend funds on behalf of D'Angelo.

He used these Jhnds, among other things, to produce and distribute palm cards, advertisements and

mailers on behalf ofD' Angelo. See Ex. 3 at 39-42.

At some point during the campaign cycle. and before October 2012, Dubaldi learned that

the local police had visited Brennan's home on numerous occasions. See Ex. 3 at 68-69. These

visits primarily related to incidents of domestic violence and abuse, of which Brennan has been

victim since the beginning of her marriage in or about 2006. Sec Cardoso AlT., Ex . .J. passim.

So informed, Dubaldi submitted a request to the New Windsor Town Clerk's Office under

the New York State freedom oflnfonnation Law ("FOIL") seeking all "police incident rep011 [sic]

and police arrest reports pertaining to Bonnie C. Brennan since January l, 2008." See Lagitch Ali,

Ex. J. The Town complied with the request and provided Dubaldi with responsive documents. See

Cardoso Ali, lox . .J. Aller reviewing the reports provided, Dubaldi understood that a number of

them involved Brennan's claim that her husband had physically violated her. See Ex. 3. At 72.

Through this research, and likely also through his political relationships with Green (a

former police officer who was !l·iendly with and direct contact with local police and court ofllcials)

4

and DuBois, Dubaldi discovered that, on December 29, 2008, Brennan had been arrested atler a

domestic incident and charged with Criminal Contempt in the Second Degree for allegedly

violating an order of protection in favor of her husband. ld. at 72-75. As a result of this arrest

Brennan was remanded to the custody of the Orange County Sheritf's Office, where she was

processed, booked and detained in the Orange County Correctional Facility until her husband

bailed her out. See Cardoso Aff.. Ex. J. at 99- J 00. The charge was quickly resolved with the Town

of New Windsor Justice Court, on or about January 8, 2009, accepting an Adjournment in

Contemplation of Dismissal ("ACD"). See At11davit of Stephanie Heft, swornt to February 23,

2016,1,14-5. On or about January 8, 2010, in accordance with the terms of the ACD, the charge

was formally dismissed and, in accordance with Section 160.50 of the New York State Criminal

Procedure Law, Brennan's records relating to this arrest and charge were sealed. !d.

Dubaldi claims he was not aware or the disposition of this charge or of the fact that the

records related thereto had been sealed. Sec Ex. 3 at 76-78. He claims he did no research to

detem1inc the status or disposition of the charge. I d. Instead, on or about October 22, 2012,

Dubaldi contacted the Orange County Sheriffs OHice seeking copies of Brenan's mug shot. See

Ex. 4 at 14- J 5. At the time he made this request, he intended to use any photo received in political

advertisements on behalf of D'Angelo. See Ex. 3 at 64-66.

Dubaldi iirst contacted Sheriff DuBois, a political ally, directly, who, in turn, relayed

Dubaldi's request to then Captain (now ChieJ) Dennis 13aJTy. Se(,' Ex. 4 at 14. At the time, Bany

was the Sheriffs Office's FOIL officer and, as part of his duties, typically handled FOIL requests

for booking photos. !d. at !5. As such, DuBois directed Barry to follow up with Dubaldi and

process his request .[sh at J 4-!5, Barry complied with this directive, which he interpreted as an

order by the Sheriff to assist Dubaldi. ld. at 27.

5

Barry called Dubalcli and advised thaL to process the request, Dubalcli needed to provide a

written FOIL request and a check for payment of the applicable twenty-Jive cent reproduction fee.

lei. at 16, 18-21. Dubaldi later hand-delivered the required document and check and, upon receipt,

Barry contacted the records oftice in the correctional facility and directed that unit to provide an

electronic copy of Brennan's booking photo.ld. at 21-26; ~ee Lagitch AfC, Ex. L. By emaiL he

then forwarded the booking photo to Dubaldi. See Lagitch AfT., Ex. L.

The booking photo Barry released to Dubaldi, under DuBois· direction and pursuant to his

policies, was part of the record relating to Brennan's December 2008 arrest, the tile of which had

been ordered scaled almost three years earlier in January 2010. Barry claims that, at the time he

released the photo, he did not know whether or not the case had been sealed and made no effort to

lind out its status. See Ex. 4 at 25, 28. He acknowledged at deposition that the Sheriffs Office's

file containing the mug shot is presently sealed and that department policy prohibits the release of

any material contained in a sealed l'ile. I d. at 24-25, 29.

After receiving a copy of Brennan's mugshot, Dubaldi brought a copy of the photo to a

NWRC meeting, at which Brennan's arrest and the numerous police reports were discussed. See

Ex. 2 at 52-58. While discussing the police incidents. Dubaldi made clear that some of these

involved Brennan's allegations of domestic violence. LcL. at 57. Brennan's mugshot was also

passed around to those who wanted to see it. !d. at 52-58. The picture was on the leJl side of a

page beside a large question mark to its right, and below it were the words "O.C.S.O. File Photo."

lfL at 59-61. At this meeting, the members discussed using this picture/layout in an advertisement.

!d. at 53,59-61,64. Whatever reservations he claims to have had, D'Angelo did not explicitly

disapprove of using the picture in an advertisement promoting his candidacy. lei. at 53-54, 62.

6

On November 2, 20 l 2, the picture/layout that was passed around and discussed at the

NWRC meeting appeared in the Town of New Windsor's official newspaper, 7he Sentinel. See fd.

at 64; Cardoso All, Ex. L. The mugshot, beside the question mark and above the words "O.CS.O.

File Photo," was placed directly below an ad promoting D'Angelo and also contained the caption

"A paid political announcement." See Cardoso Aff., Ex. L. When he saw the ad in the paper,

D'Angelo took no action. See Ex. 4 at61-62.

On the heels of the ad published in The Sentinel, again on behalf of D'Angelo, Dubaldi,

composed and distributed a political mailer attacking Brennan. The mailer was double-sided and

contained Brenan·s mugshot on both sides. On one side, the mailer stated that Brennan had been

the subject of 46 police incident reports since 2008 and had been arrested for Criminal Contempt

in the Second Degree. See Cardoso AlL Ex. K. ·rhe image of a police car is in the background

and the headline reads: "DEMOCRAT COUNCIL CANDIDATE BRENNAN SEEMS TO

ALWAYS BE ON THE WRONG SIDE OF THE LAW." !d. The opposite side. again bearing

Brennan's booking photo, reads: "CANDIDATES SHOULD BE RUNNING ON THEIR

RECORD ... NOT HAVE A RECORD." M, (ellipsis in original).

On September 5. 2013, Brennan commenced this action against the New Windsor

Defendants and Sheriff DuBois. See Cardoso AtT. Ex. A. She claims that the New Windsor

Defendants defamed her by falsely imputing criminality to her through their publications ofthe ad

in T'l1e Sentinel and the distribution of the political mailer. lei. She also alleged that DuBois

wrongfully released a scaled booking photo and violated her right to privacy. ld.

In or about November 2013, defendants moved to dismiss Brennan's complaint on various

substantive and procedural grounds. fu:-'" Exs. 5-8; Lagitch AtT., Exs. C, E-F. By Decision and

Order dated May I 4, 2014, this court denied the defendants' motions in their entirety. lcL Ex. G.

7

STANDARDS OF REVIEW

A. Summary judgment.

Summary judgment is a "drastic remedy,"' §.CC Vega v. Restani COlJ§.L..QotJ1, !8 N.Y.3d

499, 503 (20 !2), which should be granted only if "upon all the papers and proof submit1ed, the

cause of action or defense shall be established sufticiently to warrant the court as a matter of law

in directing judgment in favor of any party," CPLR 32l2(b); see also, Veua, 18 N.Y.3d at 503. In

deciding a motion for summary judgment, the court must construe all facts "in the light most

favorable to the non-moving party'' Sec Vega, 18 N. Y.3d at 503 (internal quotations and citations

omitted). Ultimately, the court's function is to determine whether any genuine issues of material

fact exist, but it must not resolve these issues by making factual findings or credibility

determinations .. See !d. at 505.

The moving party bears the initial burden of demonstrating the absence of any material

issues of fact and its resulting entitlement to judgment as a matter of law. See lei. If it fails to do

so, "the motion must be denied, regardless of the sufliciency of the opposing papers." See Iiano

v. Lanso, 260 A.D.2d 908 (3d Dep't 1999) (quotations & citations omitted). If the moving party

meets its burden, the non-moving party may still defeat summary judgment by submitting

su11icient evidence establishing an issue of fact requiring trial or that the law does not warrant

summary judgment. Sc~ !d.; Zuckerman v. City of New York, 49 N.Y.2d 557,562 (1980).

B. Law of the case.

ln resolving legal questions raised by delendants' motions, this court is bound by its earlier

resolution thereof as the law of the case. The Jaw of the case doctrine "is a rule of practice, an

mticulation of sound policy that, when an issue is once judicially determined, that should be the

end of the matter as far as Judges and cowts ofco-ordinatejurisdietion are concerned'' Martin v.

8

Col~, 37 N. Y.2d 162, 165 (1 975). This doctrine "applies only to legal determinations that were

necessarily resolved on the merits in a prior decision ... , and to the same questions presented in

the same ease." Ramanathatl.~Aharon, 109 A.D.3d 529,530 (2d Dep't. 2013) (citations omitted).

And the rule has been cited as "essential to an orderly and seemly administration of justice in a

court composed of several judges." Carbon Capital MgL LLC v. American Express Co., 88

A.D.3d 933,936 (2d Dep't. 2011).

ARGUMENT

Point I

The New Windsor Defendants' motion fot· summary judgment should be denied because the recot·d contains sufficient evidence from which a reasonable jury could conclude that each of these defendants defamed Ht·cnnan with actual malice.

To establish a claim ti:.>r defamation in New York, a public figure must demonstrate that

the defendant(s) published a false and detamatory statement about her with actual malice. See

Loder v. Nied, 89 A.D.3d 1197, 1198 (3d Dep't. 2011 ). Brennan has established these elements

here.

A. Tfte Sentinel ad and political mailer are defamatory per se.

"A defamatory statement is one which tends to expose a person to hatred, contempt or

aversion, or to induce an evil or unsavory opinion of him in the minds of a substantial number of

the community." Knutt v. Metro lnt'l.. S.A., 91 A.D.3d 915, 916 (2d Dep't. 2012). It is well-

settled that statements imputing criminality to the plaintiff constitute defamation per se. See Geraci

v. Probst, 15 N.Y.3d 336,344-45 (2010); Knutt, 91 A.D.3d at 916.

Whether a particular statement is reasonably susceptible of a defamatory meaning is, in the

tirst instance, a question of law to be determined by the court. Sec Knutt, 91 A.D.3d at 916. If the

court determines that the statement is "reasonably susceptible of a detamatory connotation, then it

9

becomes the jury's function to say whether thai was the sense in which the words were likely to

be understood by the ordinary and average reader." James v, Gannett Co .. Inc., 40 N.Y.2d 415,

491 (1976); Knutt, 91 A.D.3d at916.

Here, both I'l1e Senrinel ad and the political mailer are reasonably susceptible to being

inteqxeted as asserting that Brennan has a criminal record- i.e., that she has been convicted of

multiple crimes. Indeed, in denying the New Windsor Defendants' motion to dismiss, this court

has already resolved this legal issue in Brennan's tavor. On that motion, the New Windsor

defendants argued, as they do here, that neither "111e Sentinel ad nor the political mailer is capable

of a defamatory meaning. See Ex. 5. Thus, in denying that motion in its entirety, this cotn1

necessarily concluded that a reasonable jury could conclude otherwise and, as such, the court is

now bound by this holding as law of the case. See Ramanathan, I 09 A.D.3d at 530.

In any event, even if the law of the case did not bind the court, it should nevertheless reach

the same conclusion because, in !;let a reasonable jury could conclude that the statements

published in The Sentinel and the political mailer arc de1amatory. In James. our Court of Appeals

articulated the standards by which the court should make this threshold determination:

The court will not pick out and isolate particular phrases but will consider the publication as a whole. The language will be given a lair reading and the cou1i will not strain to place a particular interpretation on the published words. The statement complained of will be read against the background of its issuance with respect to the circumstances of its publicillion. It is the duty of the court, in an action for libel, to understand the publication in the same manner that others would naturally do. The construction which it behooves a court of justice to put on a publication which is alleged to be libelous is to be derived as wc!lli·om the expressions used as Ji·om the whole scope and apparent object of the writer.

James, 40 N. Y .2d at 419-20 (internal quotations and citations omitted).

10

Here, The Sentinel ad consisted of Brennan's mug shot next to a large question mark with

the caption "O,CS,O, tile photo," which defendants concede stands for "Orange County Sheriffs

Office." The political mailer contained the same mugshot on both sides and read, on one side

(with a picture of a police car in the background) that, "DEMOCRAT COUNCIL CANDIDATE

SEEMS TO ALWAYS BE ON THE WRONG SIDE FO THE LAW," and on the other that,

"CANDIDATES SHOULD BE RUNNING ON THEIR RECORD, NOT HAVE A RECORD."

See Cardoso AlT., Ex. K. ln publishing these ads, the New Windsor Defendants acted for the

express purpose of publically humiliating and embarrassing Brennan so as to gain advantage

against her in the campaign.

These statements are defamatory per se because, when viewed in context and in their

entirety, they purport to represent, as a factual predicate, that Brennan has been convicted of

multiple crimes and has a criminal record. Indeed, an average reader considering each publication

as a whole and in the context of one political candidate purporting to communicate .facts about his

opposition to discredit her- especially when viewing the political mailer as a follow up to answer

the "question" raised by 7/w Sentinel ad, as was the intended purpose of the sequence of these

messages, see Ex. 3 at 63-66 -·could reasonably conclude that the text accompanying Brennan's

picture in both The Sentinel ad and the political mailer were intended to answer the mysterious

question by suggesting that Brennan had been convicted of crimes. Sec Silsdorf v. Levine, 59

N.Y.2d 8 (1983) (holding that an open letter written by a political association opposing mayoral

candidate's re-election could reasonably be construed by average reader as imputing criminal

conduct and, thus, candidate adequately stated defamation claim); Loger, 89 A.D.3d at 1200

("[W]e agree ... that these statements are susceptible to a defamatory meaning, inasmuch as they

convey, at a minimum, serious impropriety and, at worst, criminal behavior.").

II

To the extent the New Windsor Defendants contend that the statements are not defamatory

or otherwise not actionable because they express mere opinions, the court is also bound by the law

the case as to its earlier resolution of this legal issue. Again, these defendants raised this same

argument when previously seeking dismissal of the complaint and, by denying that motion in its

entirety, this court necessarily concluded that the statements are not opinions and, otherwise, are

actionable. Sec Ramanathan, 109 A.D.3d at 530. And, again, even if the court were to decline to

apply the law of the case doctrine, an independent legal analysis should yield the same conclusion

previously reached.

In determining whether a statement is an assertion of fact or non-actionable expression of

opinion. courts should consider the following factors:

(I) whether the specific language in issue has a precise meaning which is readily understood; (2) whether the statements are capable of being proven true or false; and (3) whether either the li.tll context of the communication in which the statement appears or the broader social context and surrounding circun1stances arc such as to signal readers or listeners that what is being read or heard is likely to be opinion. not fact.

Brian v. Richardson. 87 N. Y.2d 46, 51 ( 1995) (quotations and citations omitted) (alterations

accepted). Moreover, "[s]tatements of opinion may nonetheless be actionable where they are

'mixed opinion' implying a basis in undisclosed fact." See Loder, 89 A.D.3d at 1199. And "even

a statement of 'pure opinion" that accuses the plaintiff of engaging in criminal conduct may be

actionable." J.<i; Se£ also, Sweeney v. Prison£!:§~ Legal Servs. ofN.Y., 146 A.D.2d 1, 5 (3d Dep't.

I 989).

Here, as already noted, the New Windsor Defendants' statements are reasonably

interpreted as accusing Brennan of criminal conduct. Thus, even if expressions of pure opinion,

they arc actionable in a suit for defamation. See ld,

12

Furthermore, to the extent these purported "opinions" are asserted in a context that includes

a police mug shot and statements representing that Brennan has "a record" and "seems to always

be on the wrong side of the law," a reasonable reader would conclude that the statements are "based

upon certain facts known to the speaker that are undisclosed to the [reader], render[ing] them

actionable mixed opinion.'' Sec Loder, 89 A.D.3d at 1200. And, the undisclosed "fact"·- that

Brennan has been convicted of multiple crimes-- is not only capable of being proving true or false,

but was veritiably false and delrunatory. Thus, the privilege otherwise aJTordcd opinions in

unavailable.

Finally, the contexts of these messages signal to the average reader that they are intended

to convey fact, not opinion. Indeed. contrary to the New Windsor Defendants' assertion that a

"reasonable reader would not view mailers sent by an opposition party to be stating objective fact

about an opponent," Sec NW Def. Mem. at 12, that is precise(v what a reasonable reader would

expect or so a jury could rightfully conclude. lndeed. unlike the letter to the editor in lmmuno

AG v . .1. Moor-Jankows~i, 77 N.Y.2d 235 (1991) and the op-ed piece involved in Brian v.

Richardson, 87 N. Y.2d 46 (1995), the political advertisements here were not intended as mere

commentary as part of broad public discussion, but, rather, tactically designed to persuade voters

to make a decision about Brennan based upon allegedjhc/s asserted about her.

Nor is Cook v. Relin, 280 A.D.2d 897 (4'11 Dep't. 2001) availing to the New Windsor

Defendants. As an initial matter, it is critical to note that the exact language of the alleged

defamatory statements at issue in that case, as opposed to the court's characterizations thereof, are

not cited in the Fourth Department's opinion, nnd so it is not possible to make an appropriate

comparison. Indeed, contrary to the New Windsor Defendants' characterization of the statements

as accusing the plaintitf of being "a drunk, a liar, and a hypocrite," sec NW Dcf. Mem. at 13, the

13

Fomih Department does not recite the actual challenged statements and, instead, notes only that

dctcndant's statements "portrayed the plaintiff as dishonest and hypocritical,'' ~ Cook, 280

A.D.2d at 898 (emphasis added).

And, to the extent the challenged communication there claimed the plaintitfwas "a drunk,"

the court did not reject the defamation claim on the ground that this was a non-actionable opinion,

but rather, on the ground that accusing someone of drunkenness absent "some aggravating factor

not present here'' is simply not de!i1matory. !d. By contrast here, accusing a practicing lawyer

running for public oflice of having a criminal record in an effort to dissuade voters Jrom electing

her is plainly defamatory. Moreover. unlike the serious tone of the newspaper ad and political

mailer here, essentially warning the public to not elect a criminal, the tone of the communication

in Cook was "ironic sarcastic and caustic." ld. To the extent the court finds the facts of Cook

sufficiently analogous, we submit that the dissenting opinion in that case-got it right and this court,

not being bound by the Fourth Department's m~ority opinion, is free to follow the better reasoning

of the dissenting Justice. See ld, at 899 (Hayes, J. dissenting).

B. The intended messages of 1/te Sentinel ad and political mailc1· arc false,

The New Windsor Defendants contend that Y'l1e Sentinel ad is substantially true because

the mug shot depicted there, in fi1ct, is an Orange County Sherin's OJlice tile photo as indicated.

Sec NW Def Mem. at 5. And they contend that the political mailer is substantially true because

the facts demonstrate that Brennan (I) had been involved in forty-six police incident repot1s as

stated; (2) had in fact violated a lawful order of protection and lost a legal challenge to the Beaver

Dam Lake water system, thus placing her on the "wrong side of the law"; and (3) had been arrested

for Criminal Contempt in the Second Degree, as stated, and thus had a "record,'' as stated. See ld,

at 9-12. But these arguments are unavailing and must be rejected.

14

As noted, this court has already concluded that the clear import and plain meaning of these

publications is that Brennan, in fact, had been convicted of crimes and had a criminal record.

Defendants' disaggregation and isolation of certain components of this message, imbued with

semantics, does not alter this fact and does not render the underlying message true. To the contrary,

the plain and intended meaning of these publications is undisputedly and demonstrably lhlse­

Brennan had never been convicted of any crime and, thus, did not have a criminal record.

Defendants' rel'ercncc to Brennan's legal challenge to the Beaver Dam Lake project is a

red herring and, in any event, not substantially true. It is clear that by "wrong side of the law," the

political mailer referred to the criminal law, not a civil lawsuit involving a challenge to the

municipal water project. One need only view the mug shot, police car and references to police

reports, arrests and Brennan's so-called "record" to so conclude. And, in any event. the statement

thai Brennan "participated in two failed legal attempts to deny Beaver Dame Lake residents new

water system upgrades" is false. As Brennan explained, she was only involved in one legal

challenge, and that lawsuit did not seek to stop the upgrades, but only to ensure that they were

made in compliance with relevant zoning law. See Ex. l at 79-83. Thus, as is in line with the

totality of the mailer, this statement is false and misleading.

Likewise, the contention that Brennan was "on the wrong side of the Jaw" because,

according to a police report, she was in the vicinity of her husband in violation of a la\\1'ul order

of protection, is misplaced. First, the statement at issue is that Brennan is "alw'U'S on the wrong

side of the law." See Cardoso Aff., Ex. K. (emphasis added). Thus, even if Brennan did once

violate the order of protection, this does not establish the pattern of criminality asse1ied by the

mailer. And, the mere existence of the order of protection and Brennan's presence at her husband's

address do not, in themselves, constitute criminal contempt in the second degree, as defendants

15

suggest. Indeed, to establish that offense, a showing of intentional or willful disobedience of the

order is required. See N.Y. Penal L. §215.50(3). From the contents of the police report, there are

insufficient facts to establish that Brennan had willfully violated any lawftll order and, in fact, the

contents of that report suggest she was operating under a mental illness and not out a volition to

violate an order. See Cardoso AfL Ex. J. at 99-100. Thus, contrary to defendants' assc1iion, the

facts known to Dubaldi at that time do not place Brennan "square on the 'wrong side of the law."'

And, in fact, this charge against her was dismissed.

But, more critically, by "wrong side of the law," the defendants did not meant that Brennan

engaged in conduct that contravened the law, but that she had been adjudicated a criminal lor doing

so. This is evident by its use of her mugshot and references to 46 police incident reports and

Brennan's "record." Thus, the literal meaning defendants intended to convey is not substantially

true, but demonstrably false.

Defendants' reference to the dictionary deJinition of the word "record" is of no avail

because all it does is create a question of fact for the jury, which cannot be resolved on summary

judgment. The meaning ofthe word "record" in this context should be determined by the l>lctlinder

and, when viewed in the light most favorably to Brennan, as it must on this motion, the term means

criminal record and, thus, is false.

The cases the defendants rely upon are also unavailing. Jn Steward v. World-Wide

Automobiles Corp., 20 Mise.2d 188 (Sup.C:t. N.Y. Cnty_ 1959), the court did not hold, as

defendants suggest, that the defendant's reference to the plaintiffs "police record as long as your

ann" did not refer to a convictions. Rather, it held only that the crimes about which the defendant

was referring, irrespective of conviction, were not the types of crimes involving moral turpitude

16

or infamous punishment that would make the statement slander per se and, instead, would require

a showing of special damages caused by the statements. See JiL at 191.

Nekos v. Kraus, 62 A.D.3d 1144 (3d Dep't. 2009), upon which the defendants heavily rely,

is also inapposite. There, the defendant stated that the plaintif1: whose criminal conviction had

been reversed on appeal on procedural grounds, escaped criminal charges '·solely on technicalities

... [which] doesn't mean the underlying facts aren't true.,. !d. at l 144. The plaint itT argued that

the statement insinuated that he was actually guilty of the charges, which was not true, and thus

the statement was false and de!iunatory. See ld. at 1145_ The court rejected this argument because

the statement at issue was literally true - the conviction had been reversed on technical, not

substantive grounds, and such a reversal did not acljudicate the merits of the underlying charges.

lit at 1!45-46. By contrast, here, defendants' assertion that Brennan has a criminal record--- a

meaning which derived not by innuendo or implication, but rather by reasonable interpretation of

the mailer in full context- was literally and demonstrably tl1lse.

C. Dubaldi published the statements with actual malice.

A defendant acts with actual (or "constitutional") malice when he publishes his statement

about the plaintiff "with knowledge of its J'alsity or with reckless disregard for the truth." See !d.

at 421 (1976) (citing New York Times Co. v. Sullivan, 3 76 U.S. 254 ( 1964 )). Under this standard,

the defendant must act "with a high degree of awareness of probable l'alsity or must have

entertained serious doubts as to the truth of his publication." Sec Prozeralik v. _Capital Cities

Comms .. lnc .. , 82 N.Y.2d 466,474 (1993).

As the Supreme Court explained:

The defendant in a det'amation action brought by a public o!lkial cannot, however, automatically insure a l'avorable verdict by testifying that he published with a belief that the statements were true. The finder ofiact must determine whether the publication was

17

indeed made in good faith. Professions of good faith will be unlikely to prove persuasive, for example, where a story is fabricated by the defendant, is the product of his imagination, or is based wholly on an unverified anonymous telephone calL Nor will they be likely to prevail when the publisher's allegations are so inherently improbable that only a reckless man would have put them in circulation. Likewise, recklessness may be found where there are obvious reasons to doubt the veracity of the informant or the accuracy of his reports.

St. Amant v Thompson, 390 US 727. 732 (1968).

Moreover, wbik~ "failure to investigate will not alone support a finding of actual malice.,

. , the purposeful avoidance of the truth is in a different category. Harle-Hapks Communications v

Connaughton, 491 US 657, 692 (1989). In the end, "proof of 'actual malice' calls a cletenclan!'s

state of mind into question ... , and does not readily lend itself to summary disposition. Hutchinson

v Proxmire, 443 US Ill, 120 n. 9 (1979) (citations omilled).

The record here demonstrates Dubaldi's reckless disregard for the truth of his accusations

that Brennen had repeatedly been adjudicated a criminaL For starters, he testified that, at the time

he distributed these ads, he did not know the disposition of Brennan's charge and took no actions

to discover it See Ex. 3 at 73-78. A reasonable jury could conclude that his Jailure to inquire was

purposeful and intended to avoid the truth. Indeed, had he bothered to check, he would have

discovered that Brennan had not been convicted, thus lessening the blow of his message- don't

elect a convicted criminaL A reasonable jury could also conclude that Dubaldi's decision to

publish such a charged accusation without a basis in tact to support it is reckless.

The record also contains evidence suggesting that Dubaldi had reason to know that his

accusation was probably false. For instance, it was widely known that Brennan was then a

practicing attorney, and had been tor years. Had she been convicted of a crime"" especially one

18

for criminal contempt- this most likely would have a!lected her ability to practice. Yet. she had

continued to practice without issue.

ln addition, the police incident reports Dubaldi received and reviewed belie the accusation

that she had been convicted of criminal contempt. !?s.s Cardoso Aff., Ex. J. passim Indeed, as

already, noted, a conviction for criminal contempt in the second degree requires a showing that

the defendant willfully and intentionally violated the order, se~ N.Y. Penal L. § 215.50(3);

however, the !acts of police repmi Dubaldi reviewed do not suggest such willfulness on the part

of Brennan.

Moreover, the incident reports, which Dubaldi admits to reviewing, demonstrate that, over

the ensuing weeks and months following her atTest Brennan was repeatedly in the vicinity of her

husband and home. This suggests that there was no basis ft1r the initial arrest In addition, had she

been convicted, there is no doubt the order or protection she was alleged to have violated would

have remained in place or a new one issued. Yet, despite her continued and repeated presence

with her husband, she was not again arrest for alleged violations of any court order.

D. The statements were not pl'ivilcgcd,

The New Windsor DeJCndants assert both the qualified political campaign privilege and

the privilege provided by Section 74 of the New York Civil Rights Law tor "fair and true reports"

ofjudieial and other official proceedings. Sec NW DeC Mem. at 15-17. But neither privilege

applies here.

First, the so-called "political campaign privilege" is just another way of saying that, since

the political candidate plaintifT is a public figure, the First Amendment requires a demonstration

of actual malice on the part of the defendant. ;>ee Suozzi v. Parente, 202 A.D.2d 94, 101 (2d Dep't.

1994) (discussing qualified privilege in terms of actual malice standard). Thus, lor the reasons

19

discussed above demonstrating the existence of actual malice, the defendants' political campaign

privilege fails.

Nor does Section 74 of the New York Civil Rights Law avail the defendants. That section

provides, in full:

A civil action cannot be maintained against any person, firm or corporation, for the publication of a trtir and true report of any .fudicial proceeding, legislative proceeding or other official proceeding, or for any heading of the rep011 which is a fair and true headnote of the statement published.

This section does not apply to a libel contained in any other matter added by any person concerned in the publication; or in the report of anything said or done at the time and place of such a proceeding which was not a part thereof.

N.Y. Civ. Rights L. § 74.

A publication is "lair and true" under Civil Rights Law § 74, and thus privileged, if it is

substantially accurate. Sec Daniel Goldreycr. Ltd. V. Van de Watering, 217 A.D.2d 434, 435 ( l st

Dep 't. !995 ). "If the pLtblished account, along with the rest of the article. suggest more serious

conduct than that actually suggested in the o11icial proceeding, then the privilege docs not attach,

as a matter of law." [d. Moreover, this privilege "does not apply when the ... account ... is

combined with other facts or opinions to imply wrongdoing.'' See Ocean State Seafood. Inc. v.

Capi(,~l Newspaper. Division of the Hearst Corp" 1!2 A.D.2d 662,666 (3d Dep't. 1985).

Here, the New Windsor Defendants claim that their publications are a Jnir and true report

of Brennan's "arrest" record. But this argument is unavailing. As already explained, the

juxtaposition of Brennan's photo with the copy of both the newspaper ad and political mailer are

reasonably understood by the average reader as reporting, as a matter of fact, that Brennan has

been convicted of crimes (not just anested), a meaning the New Windsor Defendants intended to

convey. lndeed, to say that Brennan, as a candidate, should "not have a record,'' when read in the

20

overall context of the mailer, suggests that "record" means "criminal record," not merely "arrest

record," and, since Brennan has no such criminal record, the statement is not a true or fair report

of anything.

The same reasoning applies to the "O.C.S.O. file photo'' and the statement that Brennan

"seems to always be on the wrong side of the law." Indeed, even if it is true that Brennan was

arrested, an anest is merely an allegation of wrongdoing, not evidence of wrongdoing in fact.

Thus, an arrestee who is acquitted or has her charges dismissed is not on the "wrong side'' of the

law. And, just as evidence of one arrest does not prove wrongdoing in h1ct on a single occasion,

it certainly docs not support an observation of a/w(ws being on the wrong side of the law, which

implies a recurring pattern of criminality. Here, Brennan has never been convicted of any crime,

let alone many, which defendants' publications, as intended, suggest.

Based on the toregoing, even if Brennan was arrested, the challenged publications plainly

"suggest[] more serious conduct [e.g., conviction] than that actually suggested in the official

proceeding [e.g., arrest]," See Daniel Goldrever, 217 A.D.2d at 435, and arc "combined with other

ti1cts or opinions to imply wrongdoing." S~ Ocean State Seafood, 1 12 A.D.2d at 666. Thus, the

privilege under Civil Rights Law § 74 is unavailable to the New Windsor Defendants as a matter

of law, or, at the very least, the issue presents a question of fact for a jury that cannot be addressed

on this motion for summary judgment. §ee Daniel Goldrever, 21 7 A.D.2d at 425; Ocean State

{?.s;,afood, 112 A.D.2d at 666.

K Dubaldi and D'Angelo are liable for defamation.

The New Windsor Detendants do not dispute that Dubaldi wrote and published the political

mailer and, thus, may be held liable for defamation as regards the statements therein. But, based

upon his self-serving denial, they claim he did not have anything to do with 1l1e 5'cnlinel ad and,

21

thus, cannot be held liable for that publication. See NW Def Br. at 5. But a reasonable jury could

conclude otherwise. Indeed, D'Angelo testi11ed that, during an NWRC meeting held at some point

after Dubaldi received the mugshot fi·om the Sheriffs office on October 22,2012 and the date The

Sentinel ad appeared on November 2, 2012, Dubaldi passed around the exact layout o[The Semine/

ad, including the juxtaposition oft he mugshot next to the question mark and the caption "O.C .S.O.

File Photo.'' See Ex. 3 at 52-66. He also testified that he understood from that meeting that this

layout was likely going to be used in an ad on behalf of his campaign. !d.

Despite Dubaldi's self-serving denial, a reasonable jury could find from his possession of

the exact layout published in 77w Sentinel and distribution of the same at NWRC meeting, during

which its use in an advertisement was discussed, especially in light of his admitted undertaking to

actively campaign on D'Angelo's behalf~ that Dubaldi played a wrote in creating and causing the

publication of this ad.

The N cw Windsor Defendants next contend that D'Angelo cannot be held liable for

deHunation because be did not write or publish 77Je Sentinel ad or the political mailer. Se~ NW

Def. Br. at 6. But a reasonable jury could conclude otherwise ti·om this record.

Indeed, D'Angelo testified that he delegated all advertising and campaigning to Dubaldi,

entrusting him with these sensitive tasks critical to any campaign. Sec Ex. 2 at 28-29. In this

regard, Dubaldi was acting as D'Angelo's agent and even if D'Angelo was not specifically made

aware of the ads bcfi.ll'e publication, he may be held liable therei(Jr. See Rausman v. Baugh, 248

A.D.2d 8, II (2d Dep'L 1998) (noting the application of vicarious liability in defamation cases).

Moreover, with respect to l11e Sentinel ad, the record demonstrates that D'Angelo was directly

involved in authorizing its publication. He testified that he snw the layout of the ad at an NWRC

meeting prior to its publication and did not explicitly disapprove of it.

22

Thus, D'Angelo is just as culpable as Dubaldi.

F. The NWHC is liable for defamation.

The New Windsor Defendants contend that the NWRC cannot be held liable tor defaming

Brennan because the record docs not establish the liability of each member. See NW DeC Br. at 6-

8. To be sure, under Section 13 of the New York General Associations Law, a suit against an

unincorporated association may succeed only if the liability of every member may be established.

Sec Martin v. Curran, 303 N.Y. 276,282 (1951). Thus, to succeed on her claim, Brennan must

establish that the NWRC's membership authorized or ratiJied Dubaldi's publication of the

defamatory ads. See Roth v. United Fed'n. of Teachers, 5 Mise .3d 888, 896 (Snp.Ct. Kings Cnty.

2004).

Here, Dubaldi admitted that he campaigned tor D'Angelo under the auspices of the NWRC

and did so using NWRC funds. See Ex. 3 at 35-36. Ile also admined that he used NWRC funds

for this and that, in doing so, he received, at the very least broad authorization and, at most, line-

item authorization, from the NWRC membership lor such expenditures. !d. at 39-42. Moreover,

D'Angelo testified that the layout of The Sentinel ad was passed around and discussed an NWEC

meeting prior to its publication. Moreover, the record contains no evidence indicating that. after

the ad and the mailer were published, any member oft he committee took any action to disavow or

mitigate the statements. A reasonable jury could Jind fl·om the foregoing facts that NWRC's

membership approved of or authorized Dubaldi 's defamatory publications, or both.

Point II

Sheriff DuBois' motion fot· summary Judgment should be denied because the record contnins sufficient evidence from which a reasonable jury could find thllt he ordered the w.-ongfnl t·clcasc of Brennan's scaled photo and that his actions facilitated the use of such photo for advertising purposes without Brennan's consent, thus violating her statutory rights.

A. tkennan has amply asserted causes of action against DuBois for violations of Section 160.50 of the New York Criminal P1·ocedure Law and Sections 50 and 51 of the New Yot·k Civil Rights Law.

As an initial matter, DuBois asserts that the sole cause of action Brennan alleged against

him in her complaint is for the violation of her common law right of privacy, a right not recognized

in New York State. He contends that the complaint does not explicitly state causes of action for

violation of Brennan's statutory rights under Section 160.50 of the New York State Criminal

Procure l ,aw or Sections 50 and 5 J of the New York State Civil Rights Law and that, since there

is no common law right of privacy in New York, summary judgment is warranted. But contrary

to this argument, Brennan has amply asserted her statutory claims against DuBois.

Indeed, DuBois asserted this very same argument in support of his motion to dismiss the

complaint and, in doing so, explicitly addressed Sections 50 and 51 of the Civil Rights Law. See

Ex. 8; Lagitch Aff, Ex. C. In response, Brennan argued that, under New York's liberal pleading

standard, the complaint adequately alleged DuBois' violations of her statutory rights, including

those provision DuBois had addressed in his opening memo of law. See Lagitch AtT. Ex. E.

This court denied DuBois like motion and, in its decision, provided a lengthy (and accurate)

description of the standard of reviewing the adequacy of a complaint on a motion to dismiss. Sec

)Ji, Ex. G. Had the court then agreed with DuBois position and disagreed with Brennan's, it

necessarily would have dismissed the complaint. Its refusal tn do so demonstrates its agreement

with Brennan-- that her complaint amply states these causes of action against DuBois. And such

24

is the law of the case, which hinds this court when evaluating DuBois motion for summary

judgment. Sec Ramanathan, I 09 A.D.3d at 530.

If the court were to evaluate this issue anew, its analysis should yield the same result. In

reviewing the suniciency of a complaint on a motion to dismiss, "the fundamental criterion is

whether the proponent of the pleading has a cause of action, not whether he [or she] has stated

one." h1ric v. Bcrgstraesser, 44 A.D. J 186, 1 J 87 (3d Dep't. 2007). Here, Brennan"s complaint sets

forth enough facts under the CPLR's liberal pleading requirements, sec CPLR § 3026, to satisfy

this court's standard of review as to her implied statutory right under Section 160.5 and her express

statutory rights under Section 50 and 51, the latter of which Dubois had already gleaned fi·om the

complaint. See Dunn v. Gelardi, 59 A.D.3d 385, 386 (2d Dep"L 2009) (plaintiff must he a!Torded

every favorable inference logically !lowing fi·om the facts alleged in her complaint); Condon v,

Associated Hospital Service 9fNew York, 287 N.Y. 411, 414 ( 1942) (complaint must be "deemed

to allege whatever can be imputed from its statements by fair and reasonable intendment.'').

Indeed, although not technically styled a "right to privacy" as Brennan alleges in her

complaint, it is clear that the relevant statutory scheme mandating sealing of records and

destruction or return of photographs is designed, at least in part, to protect an accused person's

privacy interests. Sec CPl.§§ 160.50 and 160.55; Lino, 101 A.D.3d at 556 ("It is undisputed that

the legislature enacted CPL 160.50 and 160.55 to remove any stigma related to accusations of

criminal conduct." (emphasis in original)); lZomero, 33 Misc.3d at 602-03 ("The purpose of CPL

J 60.50's record sealing provision is to protect accused individuals t]·om the unauthorized use of

their records ... and to remove any sigma !lowing ti·om an accusation of criminal conduct

terminated in favor of the accused." (quotations and citations omitted)).

25

In any event having fully briefed these issues in submitting his motion to dismiss as well

as in support of his instant summary judgment, and in light of the amplification of the complaint

by Brennan's response to DuBois' Demand for a Bill of Particulars, DuBois cannot possibly claim

to be prejudiced.

B, DuBois breached his statuto1-y duty under Section 160.50 of the Criminall'roccdurc Law to cnsm·c ]kennan's photo was scaled and not released.

New York law requires th<tl, when a criminal action or proceeding is terminated in fhvor

of the accused, the entire record of that proceeding shall be sealed. Se~ N.Y. Crim. Proc. L.

("CPL") § I 60.50. There is a substantially similar rule with respect to convictions for non-criminal

offenses. !d. § 160.55.

These mandatory statutory provisions provide implied private rights of action to enforce

their terms and seek damages for violations thereof. See Lino v. Citv of New York, 101 A.D.3d

552, 556-57 (I st Dep't. 2012) (holding "CPL I 60.50 and 160.55 create private rights of action,

which allow plaintiffs to seck enforcement of the statute" and reversing grant of motion to dismiss

class action lor injunctive relief seeking enforcement of the sealing provision and an individual

plaintiffs damages action for, inter alia, violation of section 160.50); Romero v. State of New

York, 33 Misc. 3d 599, 603-04 (Ct.Cl. Jun. 2 J, 2011) (holding "CPL implicitly creates a private

right of action," but finding, after bench triaL that plaintiff tailed to establish defendant breached

its duty or that any alleged breach caused plaintiff's injury).

It is undisputed that, here, Brennan's criminal charge was dismissed and, thus terminated

in her favor, prompting the mandatory sealing of all records related to this proceeding. It is also

undisputed that the law provides Brennan an implied private right of action to redress any

violations thcrcoC But DuBois contends that the record establishes no violation here on his part

because ( 1) at the time his office released the photo to Dubaldi, he bad no notice of the disposition

26

of Brennan's case or of the sealing order issued by the Town Justice Court and (2) in any event,

he was not personally involved in releasing the photo. which was provided to Dubaldi by then

Captain Barry. Both arguments should be rejected in this context.

First, DuBois' employs an overly-constrained construction of Section J 60.50, especially in

light of the context of the disclosure here, which was made in response to a FOIL request. As an

initial matter, irrespective of the statutory language regarding the duty of the court clerk to notify

DCJS and all appropriate law enHwcement agencies of the scaling and the obligations of those

receiving such notice, the statute, in the first instance speaks in mandatory terms - "Upon the

fitvorable termination of a criminal action or proceeding ... the record of such action or proceeding

shall be sealed .... " N.Y. CPL § 160.50(1) (emphasis added). Thus. the only statutory predicate

to sealing is the favorable termination of the charge, which occurred here.

To be sure. while the mandate of the statute occurs by operation of law, as a practical

matter, entities in possession of materials subject to the seal other than the court issuing the

resulting sealing order need to obtain notice of the disposition so as to take the proper precautions

as to those files. Hence, the statutory provisions requiring notice be provided by the clerk and to

such other entities and the corresponding duties ti.)l!owing such notification.

But this does not end the analysis. Clearly, the statute is rooted in privacy concerns and

intended to protect those accused, but not convicted of criminal conduct from the stigma and other

myriad negative consequences related thereto. See Lino, I 0 I A.D.3d at 556 (citing People v.

Patterson, 78 N. Y .2d 711, 716 (J 991 )). Thus, the requirements of the statute should not be taken

lightly and certainly must not eviscerate at the whim of a negligent court clerk, like the Town of

New Windsor Justice Court Clerk here. Sec Affidavit of Stephanie Heft sworn to February 23,

2016 [admitting that, in direct contravention of Section I 60.50, she failed to report the order

27

sealing Brennan's records to any agency other than the arresting agency]. Rather, all those in

possession of such files and charged with their protection should be deemed to be on inquiry notice

of the status of the disposition of the charges related thereto, especially when a request for such

records are made under FOIL

In other words, when a law enforcement agency receives a request for tiles relating to once

pending criminal charges, before publically releasing such records, the spirit of Section I 60.50

requires that agency to make inquiry as to the disposition of the charges and whether or not a

sealing order is in place. Indeed, not only docs the spirit of the statute support this duty, but so

does the language-· notably, alter stating that the clerk is required to provide notification to other

agencies, the statute provides that, "[u]pon receipt of notification of such termination and sealing"

the attending obligations must be met. N.Y. CPL § 160.50(1 ).

The position of the word "such" in the foregoing sen\encc is criticaL If the legislature

intended to require the sealing obligations to anend only after the clerk notifies the agencies, the

word "such" would occur between the words ''of' and "notification" so as to read "upon receipt of

such notification:' the "such" re[e!Ting to the clerk's notification. But it does not read this way;

instead it refers to any notification. Case Jaw supports this interpretation as well. See Brown v.

]!as~idomo, 127 Misc.2d 700, 703-04 (Sup.Ct. Erie Cnty. 1985) (rejecting argument that since

agency did not receive sealing order :from court clerk, it had not duty under section I 60.50 where

agency was served copy of sealing Ol'cler by petitioner's attorney).

The spirit and common sense of FOIL also supports this interpretation. That statute

provides a number of Jaw enforcement exceptions to disclosing public records, where disclosure

would "(i) interfere with law enforcement investigations or judicial proceedings; (ii) deprive a

person of a right to a lair trial or impartial adjudication; (iii) identify a confidential source or

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disclose confidential information relating to a criminal investigation; or (iv) reveal criminal

investigative techniques or procedures, except routine techniques and procedures." N.Y. Pub.

O!Ticers L. § 87(2)(e). Though these exceptions to disclosure are permissive, it would not strain

credulity to believe that a reasonable law enforcement agency responding to a request for records

(or otherwise contemplating releasing records) would not inquire as to the disposition of a matter

so as to determine whether or not disclosure would result in any of enumerated outcomes. And

completing such due diligence in most cases would be as simple as a making a brief phone call or

sending a quick email to a court clerk, hardly a burdensome task.

In short, a police agency should not be allowed to shirk its obligations and avoid

responsibility to retain the conlldentiality of sealed Jiles simply by sticking its head in the sand.

The policy underlying Section 160.50 requires more than that and the statutory language supports

imposing a heightened duty.

In light of the foregoing, DuBois, as head of this law enforcement agency and as the person

who directed the release of the records here, had a duty to ensure that inquiry be made as the

existence of a sealing order befure release of any records relating to criminal charges. The record

reveals that, when he directed DuBois to respond to Dubaldi's FOIL request and provide what was

asked, he did not direct that inquiry be made as to the disposition of whatever matter Dubaldi was

inquiring of or qualify his order with words to the eJl'cct, "if possible''. In addition, as DuBois

claims that his agents responded to the FOJL request pursuant to the policies of the Sheriffs

Department, and as those policies did not include a duty to inquire outside of the agency's own

tiles as to whether a matter had been scaled, DuBois' policies were plainly deficient. As such, by

directing the release of the photo without first requiring an inquiry of the court as to disposition

and sealing, and by promulgating policies which lack any mandate to make such inquiry, DuBois

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caused breached his duty of care under Section 160.50, thereby causing the release of Brennan's

photo, its foreseeable use by the New Windsor Dcfendanrs and the ensuing damages to Brennan.

C. DuBois' •·clease of Brennan's mugs hot was an indispensable step in the New Windsor Defendants' use of same for advertising purposes, in violation of Brennan's privacy rights under Sections 50 and 51 of the Civil Rights Law.

The record here contains sufJicient evidence liOtn which a reasonable jury could find that

DuBois violated Brennan's express statutory privacy riglns under Sections 50 and 51 of the New

York State Civil Rights Law. These provisions prohibits the unconsentecl use of a person's "name,

portrait or picture for purposes of advertising or trade purposes and provides a party aggrieved by

such wrongful use a private right of action to "sue and recover damages for any injuries sustained

by reason of such use." N.Y. Civ. Rights L §§ 50 & 51. In general, a photo "is used 'for

advertising purposes' if it appears in a publication which, taken in its entirety, was distributed tor

use in, or as part of, an advertisemem or solicitation lor patronage of a particular product or

service'" See Beverley_ v. Choices Women's Medical Center. Inc., 78 N.Y.2cl 745, 751 {1991).

Importantly, the phrase ''used tor advertising purposes" is construed liberally. £:iee lei.

DuBois challenges liability under this swtutory scheme on the grounds that (l) he did not

use Brennan's photo at all, but rather the New Windsor Defendants, who obtained the photo from

his otlice, were responsible for its use, and (2) in any event, the use of the photo here- i.e., in a

political advertisement by an opposition candidate- does not constitute "advertising purposes" as

a matter oflaw.

Addressing DuBois' second argument lirst, it is first critical to note that, whether or not a

use is for advertising purposes under the statute is a legal question. Thus. when the court denied

DuBois' motion to dismiss, which explicitly argued that the use here did not constitute "advertising,

purposes" under the statute, it necessarily. even if implicitly, rejected DuBois argument. As such,

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this holding is the law of the case and dictates rejection of DuBois identical argument on his instant

motion and the conclusion that the use here, as a matter of Jaw, constitutes "advertising purposes

under the statute.

In any event, analysis under the applicable legal standard continues to dictate this

conclusion. To be sure, "advertising purposes" typically refers to commercial contexts and elected

officials serve the public and not commercial interests. But to the candidates themselves, politics

is a trade-· it is a job and career and provides a means of earning income and bcne11ts like health

insurance. Thus, when a candidate for publishes an advertisement solely to attack his opponent

on personal matters and not to raise awareness of substantive issues related to the office or the

election, such advertisement should be construed as motivated by and serving that candidate's

commercial interests in advancing in his trade.

Applying this rationale. D'Angelo plainly had a commercial interest in his Town Board

seat, a paid position, which permitted him to exert political influence over myriad commercial and

economic matters and advance his own political agenda and career. And by publishing the

statements here, which did not raise any substantive issue, but instead defamed by liJisely imputing

criminality to her, the New Windsor Defendants used the photo for advertising purposes as that

term is defined by statute.

DuBois' reliance upon Davis v. Durvctt, 99 Misc.2d 933 (Sup.Ct. N.Y. Cnty. 1979) is

unavailing because that case is distinguishable. There, the plaintiff was a convicted felon awaiting

trial on murder charges lor having allegedly killed two police oflicer. See lQ, at 934. The defendant

was a candidate lor the oftice of Governor whose opponent had previously pardoned the plaintiff;

who now stood accused of new crimes allcr having been released. See L\t As part of his campaign,

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the defendant candidate published a television ad attacking his opponent and, in doing so,

broadcast an image of a New York Daizy News article containing the plaintiJTs picture. !d.

The New York County Supreme Court rejected the plaintiffs claim under Sections 50 and

51. ln doing so, it recognized the constitutional significance of the need for candidates for public

office to debate critical substantive issues such as the incumbent Governor's stance on crime. Sec

!d. at 936-40. Notably, there was no claim that the contents of that political ad were false. See !d.

By contrast, here, the challenged political ads had no bearing on any political issue of

significance to the local community. And, critically, they maliciously advanced J1llse assertions

about Brennan's criminal history. To use a person's likeness without their consent in this context

for the purpose of advancing one's career bespeaks of commercial exploitation of the kind

proscribed by the relevant statutes here.

DuBois' fi.rst argument - that he did not use the photo at all -- is easily dispensed with.

Indeed, his wrongful release of the photo, without Brennan's knowledge or consent, was "an

indispensable step" in the New Windsor Defendants' illegal dehunatory use of the same. Cf.

Brink lev v. Casablaneas, 80 A.D.428, 442 (1" Dep't. 1981) (noting that one defendant's delivery

to another defendant of plaintiffs photograph "was an indispensable step" in the latter defendant's

wrongtlll use of the photo, but holding termer defendant not liable lor statutory privacy violation

because plaintiff provided limited consent for such delivery; no such consent is averred or present

here). Thus, he may be held liable lor the damages caused by such wrongful use.

Accordingly, Brennan's complaint amply states a cause of action against DuBois for

violating her express statutory privacy rights under Civil Service Law§§ 50 and 51.

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D. The reconlamply establishes DuBois' personal liability.

DuBois contends that he cannot be held liable for the release of Brennan's mugshot because

it was Barry, not he, who gave the photo to Dubaldi. Thus, he claims that any such liability would

be vicarious and that Section 54 of the New York State County Law precludes the imposition of

vicarious liability against the head of a county depmiment or agency for his employee's tortious

acts committed in the scope of their employment. ,See Dubois Mem. at 11-12. But this argument

is unavailing because, as already discussed, the record contains ample evidence from which a

reasonable jury could conclude that DuBois was involved in releasing the booking photo, thus

making his liability direct, not vicarious.

Spcciiically, and critically, DuBois directed Barry to provide Dubalcli with the requested

photo. See Ex. 4 at 14-15, 27. And even ifhe had not done so, its release was facilitated by policies

and procedures DuBois personally promulgated, thus making his inadequate policy-making a

direct cause of the wrongl~rl release. See Lagitch AtT., Ex. P. [Sealing Records policy]; Allidavit

of Lieutenant Arthur Conklin, sworn to March 11, 2016 (discussing clue diligence in accordance

with Sheriffs Office policy). As such, he made held personally liable for his involvement causing

the release of the Brennan's booking photo.

E. Bt·ennan's failm·e to serve the County with n notice of claim docs not preclude her claims against DuBois in his individual capacity.

DuBois contends that Brennan's failure to serve a notice of claim upon the County

precludes her claim against him in his individual capacity.!?.~ DuBois Mcm. at 12-14. But this

argun1ent is unavailing.

As an initial matter, this court has already rejected this exact legal argument when it denied

DuBois' earlier motion to dismiss. In support of that motion, DuBois asserted this very defense,

and both parties extensively briefed the issue. See Ex. 8; Lagitch Ali, Exs. E and F. Although the

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court did not discuss its reasoning or otherwise explicitly address the argument in its decision, its

denial of the motion in its entirety necessarily, even if implicitly, rejected the merits of DuBois

challenge on this ground. Accordingly, the court's prior holding constitutes the law of the case,

which dictates that this argument now be rejected again. See Ramanathag, 109 A.D.3d at 530.

In any event, a proper legal analysis yields the same conclusion as the comi previously

reached- namely, that Brennan was not required to serve a notice of claim upon the County to

prosecute her claims against DuBois in his individual capacity.

When a person brings an action against an ofilcer or employee of a public coq}oration, and

not against the corporation itself, service of a notice of claim upon the public corporation is

required "only if the corporation has a statutory obligation to indemnify such person under this

chapter or any other provision of law." N.Y. Gen. Municipal L. § 50-e(l)(b). But Dubois has n

not demonstrated that the County of Orange has no such legal obligation to indemnify its Sherin·

in actions against him in his individual capacity, as is Brennan's is here.

DuBois points to Orange County Local Law No. 3 of 1988 as the source of the County's

legal obligation to indemnify him and asserts that this invokes the requirement that a notice of

claim be served upon the County. See DuBois. Mem. at 13. But this argument is l1awcd because

the very statute authorizing the County to enact this local law explicitly excludes sheriffs li·mn

coverage. Se<;_ Public Oflicers Law§ 18(l)(b) ("The term 'employee' ... shall not include the

sher!ff'ofany county .... " (emphasis added)); See also, Bardi v. Warren County SherrilTs Dep't.,

193 A.D.2d 21,23-24 (3d Dep't. 1993) (acknowledging Public Officer's Law§ 18 excludes a

county's sheritT Ji·mn the definition of employee and, thus, holding plain tifT was not required to

serve notice of claim in connection with his claims against the sheri H). Thus, even if the Local

Law's definition of "employee" does not similarly explicitly exclude sheriffs, the Local Law is

34

subsidiary to its enabling statute, which docs provide such exclusion. Thus, the County has no

!ega.! obligation to indemnify DuBois and, accordingly, Brennan was not required to serve a notice

of claim pursuant to GML §50-e. See Public Officers Law§ J8(1)(b); Bardi, 193 A.D.2d at 23-

24.

Even if the court were to conclude that Local Law No. 3 applies to the County Sherin:

Brennan's failure to serve a notice of claim would still not be fatal. lfindcmniiication applies, it

applies only to acts committed within the scope of employment. i?_ec Public 01Ticers Law§ 18( 4).

But here, DuBois' violations of Civil Rights Law§§ 50 and 51 and CPL § 160.50 were intentional

acts falling omside the scope of his employment and, thus, not subject to obligatory

indemnification and the attending notice of claim requirement. See Grasso v. Schenectadv County

Public Librarv, 30 A.D.3d 8!4, 81 8 (3d Dep't. 2006) (alleged intentional torts of individual county

employees fall outside scope of employment and, thus, exempt ri·om indemnification and notice

of claim requirement); Polak v. City of SchenectadY, 181 A.D.2d 233 (3d Dcp't. !992) (holding

police officer not entitled to delense or indemni"lication under Public OJTiccrs Law § 18 in action

against him by fellow of!1cer for, infer alia, assault and intentional inDiction of emotional distress

based upon his allegedly placing loaded weapon to plaintiffs head while on police department

premises because such conduct was not within scope of employment).

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CONCLUSION

For all of the foregoing reasons, the defendants' motions for summary judgment should be

denied and this matter should be set down for trial.

Dated: Goshen, New York April 14,201 16

To: Kellie E. Lagitch, Esq.

Respectfully Submitted

SUSSMAN & WATKINS Allorneysfor Plaintiff'

By: -l\1~-;;;;----­P.O. Box 1005 1 Railroad Avenue. Ste. 3 Goshen, NY 1 0924 (845) 294-3991

ORANGE COUNT'{ ATTORNEY'S OFFICE Attorney.for Defendant DuBois 15 Matthews Street, Ste. 305 Goshen, NY I 0924 (845) 291-3150

Adam I. Kleinberg, Esq. Anthony F. Cardoso, Esq. SOKOLOFF STERN. LLP Attorneys.for New Windsor Dejimdants 179 Westbury Avenue Carle Place, NY !1514 (516) 334-4500

36