To be Argued by:
NEIL G. MARANTZ
(Time Requested: 30 Minutes)
APL—2014-00008
New York County Clerk’s Index No. 111597/11
Court of Appeals
of the
State of New York
FRONT, INC.,
Plaintiff,
– against –
PHILIP KHALIL, JAMES O’CALLAGHAN and
ECKERSLEY O’CALLAGHAN STRUCTURAL DESIGN,
Defendants.
–––––––––––––––––––––––––––––––
PHILIP KHALIL,
Third-Party Plaintiff-Appellant,
– against –
JEFFREY A. KIMMEL and MEISTER SEELIG & FEIN LLP,
Third-Party Defendants-Respondents.
REPLY BRIEF FOR THIRD-PARTY PLAINTIFF-
APPELLANT
THE MARANTZ LAW FIRM
Attorneys for Defendants and Third-
Party Plaintiff-Appellant
150 Theodore Fremd Avenue, Suite A-14
Rye, New York 10580
Tel.: (914) 925-6700
Fax: (914) 925-8800
Date Completed: May 19, 2014
i
TABLE OF CONTENTS
TABLE OF AUTHORITIES……………………………………………………. ii
ARGUMENT .......................................................................................................... 1
RATHER THAN ADDRESS THE ARGUMENTS ON APPEAL,
RESPONDENTS RELY UPON UTTERLY CONCLUSORY STATEMENTS
AND A CASE THAT CITES THE DECISION BEING APPEALED AND
WHICH IS OTHERWISE IRRELEVANT ............................................................. 1
CONCLUSION ....................................................................................................... 8
ii
TABLE OF AUTHORITIES
Cases
Vodopia v Ziff-Davis Publishing Co., 243 A.D.2d 368, 663 N.Y.S.2d 178
(1st Dept. 1997)…………………………………………………………… 2
Officemax Inc. v. Cinotti, 966 F. Supp. 2d 74, 81 (E.D.N.Y. 2013)………… 2 - 4
Youmans v. Smith, 153 N.Y. 214, 220, 47 N.E. 265, 267 (1897)…………… 5, 7
Park Knoll Associates v. Schmidt, 59 N.Y.2d 205, 451 N.E.2d 182,
464 N.Y.S.2d 424 (1983)…………………………………………………. 6
1
ARGUMENT
RATHER THAN ADDRESS THE ARGUMENTS ON
APPEAL, RESPONDENTS RELY UPON UTTERLY
CONCLUSORY STATEMENTS AND A CASE
THAT CITES THE DECISION BEING APPEALED
AND WHICH IS OTHERWISE IRRELEVANT
Respondents rely upon the most conclusory of statements as their essential
response to this appeal. Legal maxims such as “a statement made in the course of
judicial proceedings is absolutely privileged” are oft repeated as if to attempt to
confuse the Court into believing that judicial proceedings were pending at the time
the defamatory letter in question was published, when in fact there were no such
proceedings whatsoever. Indeed, the Kimmel letter was sent by an attorney to
individuals not represented by counsel, because there were no pending judicial
proceedings and there never had previously been even a hint of any judicial
proceedings. Nor were any proceedings commenced for more than six (6) months
after the letter was published. Under such circumstances, the law has never afforded
the attorney blanket license to make defamatory statements with absolute immunity.
Respondents fail to address the policy considerations articulated by this Court
with respect to limits of the absolute privilege doctrine. Appellant has endeavored
to demonstrate this Court’s long-expressed rationale for limiting application of
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absolute privilege, and has detailed how, in contrast, the First Department’s decision
(the “Appellate Order”) has its genesis solely in the adoption of erroneous dicta,
without that court ever having surveyed the law on the subject, addressed such
underlying policy considerations or otherwise having explained why absolute
privilege should now apply to situations where there are no pending judicial
proceedings. In response, Respondents merely conclude that “the First Department
has articulated a clear and compelling rationale for such position,” without, of
course, pointing to any language that might even remotely suggest any such analysis
by that court.
Respondents similarly rely upon the conclusory by blithely referring to
Vodopia v Ziff-Davis Publishing Co., 243 A.D.2d 368, 663 N.Y.S.2d 178 (1st Dept.
1997), as holding that “statements in pre-suit letter…were absolutely privileged”
[Respondent’s Brief, p. 11] even though it has been demonstrated at every level of
this appeal – and even recognized by the trial court on the original motion – that the
letter in question in that case was in fact sent during pending litigation [R 222-223].
Accordingly, Vodopia cannot be argued as precedent in terms of demonstrating that
statements made when there are no pending judicial proceedings should be afforded
absolute privilege.
Respondents employ circular reasoning in citing a Federal case, Officemax
Inc. v. Cinotti, 966 F. Supp. 2d 74, 81 (E.D.N.Y. 2013), that cites the very decision
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being appealed here. Certainly, Respondents cannot demonstrate that the Appellate
Order employed valid reasoning under New York law merely because a Federal
court decision cited it.
Moreover, the rationale for that Federal court decision is completely
distinguished from the matter at hand. In Officemax, the parties had been engaged
in litigation, were represented by counsel, and had entered into a settlement
agreement that one party then accused the other party of having breached, through a
letter by one counsel to the other. It was the contents of that lawyer-to-lawyer letter
that was alleged to have been defamatory.
Accordingly, the Federal court did not apply blanket immunity to statements
made where there were no pending judicial proceedings, but did so where the
statements were pertinent to the prior proceedings where there were ongoing issues:
Therefore, the Letter was pertinent to the previous
litigation between OMI and W.B. Mason, as it related to
the Settlement Agreement that resulted from that
litigation.
Officemax Inc. v. Cinotti, 966 F. Supp. 2d 74, 81
(E.D.N.Y. 2013)
That court went on to point out that:
The fact that a defamatory statement is unrelated to one
proceeding does not mean that it is unrelated to any other
proceeding. As the Letter is related and pertinent to the
past and possibly future litigation between OMI and W.B.
Mason, it is protected by the litigation privilege.
Id.
4
An essential factor in the Federal court decision, and an underpinning of the
rationale for its holding that the existence of prior judicial proceedings warrants
application of the absolute privilege doctrine, was the fact of the presence of counsel
representing the parties in question, and the lawyer-to-lawyer nature of the subject
communication:
…lawyers, on behalf of their clients, should also have the
freedom to speak to opposing counsel with a free and open
mind prior to the commencement of litigation.
Officemax Inc. v. Cinotti, 966 F. Supp. 2d 74, 81
(E.D.N.Y. 2013).
Of course, this is not the situation at bar. This was not a letter from one
attorney to another, involving the subject matter of a lawsuit in which both had been
involved. The Kimmel letter was an obviously defamatory communication sent by
an attorney by means of introduction to individuals who were not represented by
counsel, inasmuch as there had never been prior proceedings of any kind whatsoever.
Indeed, the Kimmel letter was published with the obvious purpose of
intimidating the recipients and dissuading them from entering into a business venture
that would compete with the attorney’s client. This was accomplished essentially
by defaming Mr. Khalil and his ability to perform the tasks anticipated, due to his
alleged violation of “several codes of professional conduct and ethics of various
boards of licensure and professional associations…,” having committed “a serious
offense that is punishable by up to ten years in prison under the Economic Espionage
5
Act of 1996…,” and having “knowingly violated the terms of [his] application [to
the United States Citizenship and Immigration Services] and immigrant status,”
among other things [R 135]. No litigation was in fact commenced for over six (6)
months after the publication of that letter.
In sum, the Federal case cited by Respondents is completely inapposite to the
facts of this matter, and obviously provides no authority for this Court in any event.
If anything, it demonstrates the danger of the Appellate Order if unchecked, as
serving as precedent for the potential erosion of critical public policy considerations
repeatedly voiced by this Court in limiting application of the absolute privilege
doctrine.
As discussed in Appellant’s Brief, casual disregard of concepts as old and
established as that contained in Youmans v. Smith, 153 N.Y. 214, 220, 47 N.E. 265,
267 (1897) would ensue if the First Department’s unprecedented blanket application
of absolute privilege to “prospective litigation” were accepted as the law. That case,
and others through the years that have cited it, have maintained that, even if made in
the course of judicial proceedings, defamatory statements still need to be reasonably
pertinent to such proceedings, and not “needlessly defamatory,” in order to entitle
the speaker to absolute immunity. Without the context of any proceedings, the
concept of pertinence is destroyed, unless a court is charged with the manifest illogic
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of having to determine the potential viability of defamatory statements to potential
(i.e., imaginary) proceedings.
Similarly, as pointed out in Appellant’s Brief, the absence of actual
proceedings removes the distinction made by this Court in Park Knoll Associates:
…a lawyer has immunity for defamatory words spoken in
a judicial proceeding but not for words spoken while
representing a client in a nonjudicial proceeding …
Park Knoll Associates v. Schmidt, 59 N.Y.2d 205, 209,
451 N.E.2d 182, 184 (1983).
Again, the untenably vague nature of applying blanket immunity to statements
made in the context of “prospective litigation” would require a court, generally in
the context of pre-answer motions to dismiss, where relatively few facts are at its
disposal, to ascertain the circumstances of the defamatory publication and determine
the nature of potential proceedings, e.g., judicial versus non-judicial, and the
pertinence of such statements to such imagined proceedings.
Essentially, the First Department’s “prospective litigation” concept would run
afoul of settled decisions made by this Court, and would do so without any rationale
whatsoever having been proffered. Certainly none has been articulated by
Respondents, who have simply ignored these arguments in their Brief.
Perhaps most cynically, Respondents attempt to sidestep the fact that none of
the causes of action in the Complaint have anything whatsoever to do with Mr.
Khalil’s immigration status, and that the statement in the attorney’s letter, sent more
7
than six (6) months before that litigation was even filed, was utterly gratuitous in
informing United Kingdom residents that the person they were intending to open
their New York office was essentially an illegal immigrant. Respondents, obviously
mindful of this problem, devote disproportionate space in their brief to trying to
convince the Court that this “entire lawsuit is about a foreign national entrusted with
Front’s confidential and proprietary information.” [Respondents’ Brief, p.9.]1 Such
an appeal to xenophobia is as distasteful as it is utterly irrelevant both to this breach
of employment contract/fiduciary duty matter and to responsible legal argument.
No reasonable policy objectives are promoted by allowing an attorney
unlimited power to use defamatory communications where there are no pending
judicial proceedings, nor where there have never been any judicial proceedings
whatsoever. No reasonable policy objectives are promoted by allowing an attorney
unlimited power to use defamatory communications as a sword, outside the ambit of
judicial proceedings, so that the attorney can in essence be hired as a henchman to
intimidate a client’s perceived competition.
1 In so doing, Respondents are obviously trying to establish the pertinence of libelous statements
to judicial proceedings. It is well-settled that a statement must be reasonably pertinent and not
“needlessly defamatory.” Youmans v. Smith, 153 N.Y. 214, 220, 47 N.E. 265, 267 (1897).
However, absent pending proceedings a court cannot logically ascertain pertinence of statements
to such proceedings. In this case, even with the benefit of hindsight – with proceedings
commenced over six (6) months after the defamatory statements were made – those statements
involving Mr. Khalil’s immigration status were still completely irrelevant to the eventual lawsuit.
8
The Appellate Order runs afoul of established law in this state, and does so
without reason, either expressed or rationally inferable.
CONCLUSION
The Appellate Order represents a fundamental change in New York law with
respect to applicability of the doctrine of absolute privilege to defamatory statements
made when no judicial proceedings are pending. It is respectfully submitted that the
Appellate Order should be reversed, the Third-Party Complaint should be reinstated,
and Mr. Kimmel and his firm, as proper third-party defendants, should be
disqualified from further representation of the plaintiff in this matter.
Dated: Rye, New York
May 19, 2014
Respectfully submitted,
THE MARANTZ LAW FIRM
Attorneys for Third-Party Plaintiff-
Appellant
150 Theodore Fremd Avenue
Suite A-14
Rye, NY 10580
(914) 925-6700
By: ____________________
Neil G. Marantz, Esq.