Supreme Court State of New York

CHAMBERS Dulles State Office Building Floor 31~ Washington St., iota ' Watertown, NY 13601-3783 Telephone: 3i5- 7$5-6453 Fax: 315-266-4781

JAMES P. McCLUSKY Justice

May 9, 2013 Whitney C. Gibson, Esq. Vorys, Sater, Seymour and Pease LAP 3 1 East Fourth St., Suite 3500 incinnati, OH 45202

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Jonathan B. Fellows, Esq. Bond Schoeneck &King PLLC One Lincoln Center Syracuse, NY 13202

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RE: Gary King, et al. vs. Kathryn Hludzenski, et al. Index No. 2012-1654' RJI No. 22-13-0064

Dear Counselors: Enclosed please find your copy of the Decision issued in the above referenced matter, the original of which has been forwarded to the Jefferson County Clerk's Office for filing along with the original papers. Sincerely,

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Barbar J. Wrig t Secretary to Hon. James P. McClusky, JSC

At a Term of Supreme Court held in and for the County of Jefferson, in " day Watertown, New York on the 18t of April 201 ~ RESENT: HONORABLE JAMES P. McCLUSKY Supreme Court Justice TATS OF NEW YORK UPREME COURT COUNTY OF JEFFERSON ARY KING, HARVEY WHITE, DONNIE MASON, -SON, PAUL MASON, ii/IARLENE aURTON, ARTY M! ARREL BURTON and FRANK GIAQUINTO, Plaintiffs, -vsi4THRYN A. HLUDZENSKI, RICHARD C. WILEY, SR. nd JOHN DOES 1-10 Defendants..

MEMORANDUM DECISION AND ORDER

Index No. 2012-1654 RJI NO. 22-13-0064

Defendants Kathryn A. Hludzenski and Richard C. Wiley Sr. submitted this motio .r summary judgment dismissing the Plaintiffs' complaint and in favor of their counter aim. At oral argument the Court was advised that the matter as it pertains to Defendant ichard C. Wiley, 5r. has been settled. This decision relates to Defendant Kathryn A. ludzenski only.

The Court has considered the following: the Affidavit of Jonathan B. Fellows dated January 18, 2013 with attachments; the Affidavit of Kathryn A. Hludzenski dated January 14, 2013 with attachments; the Affidavit of Richard C. Wiley, Sr. dated January 14, 201:: vith attachments; the Memorandum of Law in support of the Defendants' motion foi >ummaryjudgment submitted by Jonathan B. Fellows dated January 18,2013;the Affidavi~ >f James W. Kelly, II dated April 10, 2013 with attachments; the Affidavit of Gary King sated April 10, 2013 with attachments; the Plaintiffs' Memorandum of Law in opposition to

efendants' motion for summary judgment submitted by Joseph M. Brunner and David B. rtsen dated April 10, 2013 and the Reply Memorandum submitted by Jonathan B. ellows and Suzanne M. Messer dated April 15, 2013.

The essential facts are not in dispute. Plaintiffs are residents of Cape Vincent in efferson County. All of the Plaintiffs are proponents of wind farm development in Ca ncent. Plaintiffs Gary King and Paul Mason have contracts for wind turbines on thei rty. Harvey White, Frank Giaquinto, Donnie Mason and Marty Mason have wind farm developer British Petroleum. At all relevant times to this action. Brit;sh eum had an application for the development of a wind farm in the Town of

Ms. Hludzenski is the primary author of posts on the blog Pandorasboxofrocks. iffs complain of three posts on defendant's blog. The complete post referenced in raph 17 of the complaint is attached to Ms. Hludzenski's Affidavit as Exhibit I. Th st referenced in paragraph 18 of the complaint is attached to her Affidavit as Exhibit J nd the post referenced to in paragraph 19 of the complaint is attached to her Affidavit as ibit K.

Plaintiffs allege three causes of action based on defamation, one cause of action intentional infliction of emotional distress and one cause of action for interference with) sines relations. Defendant asserts one counter claim pursuant to Section 70-a of they ew York Civil Rights Law.

DISCOVERY Plaintiffs claim that Defendants have failed to respond to their reasonable discovE lemands,and as such, Defendants' motion for summary judgment should be denied. The agrees that in certain situations a matter may not be ripe for summary judg
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when discovery is outstanding (see Ortiz v. J.P. Jack Corp., 286 A.D. 2d 571). However Plaintiffs' "claimed need for discovery without some evidentiary basis suggesting tha discovery may lead to relevant evidence is insufficient to avoid the grant of summary judgment" Cioe v. Petrocelli Electric Co. Inc. 33 A.D. 3d 377,378. Plaintiffs have allegec the need to discover facts relating to the August 2011 petition, the August 2011 resolutior ~f the Town of Cape Vincent Board, and the community's opinions of the Plaintiffs. NonE ~f this information is in the control of the Defendants. Plaintiffs also seek discovery on the ssue of malice. The Court finds lack of discovery does not prevent the Court from rulinc ~n this motion.

INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

A cause of action for Intentional Infliction of Emotional Distress predicates liabi n the basis of extreme and outrageous conduct, which so transcends the grounds ecency as to be regarded as atrocious and intolerable in a civilized society Freihofer 'earst Corp. 65 N.Y. 2d 135,143. The posts of the Defendant, when viewed in the contE F a blog, as defined below, do not rise to the level required to sustain such a claim, so t laintiffs' fourth cause of action must be dismissed.

TORTIOUS INTERFERENCE WITH BUSINESS RELATIONS

To prevail on a claim for tortious interFerence with business relations in New York party must prove (1) that it had a business relationship with a third party; (2) that the efendant knew of that relationship and intentionally interfered with it; (3) that the efendant acted solely out of malice or used improper or illegal means that amounted t< crime or independent tort; and (4)that the defendant's interference caused injury to the ;lationship with the third partyAmaranth LLC vJ.P. Morgan Chase & Co., 71 A.D.3d 40. laintiffs' complaint fails to allege these necessary elements, so the Plaintiffs' fifth causE F action must also be dismissed.

The United States Supreme Court has ruled that statements that are held to bE ;xpressions of opinion are entitled to absolute protection. "Under the First Amendmen here is no such thing as a false idea. However pernicious an opinion may seem, wE iepend for its correction not on the conscience ofjudges and jurors but on the competitior ~f other ideas" Gertz v. Robert Welch, Inc.418 US 323, 339-340).

If the statements of Ms. Hludzenski are opinions as opposed to expressions of fact, io cause of action for defamation will exist. "A `pure opinion' is a statement of opinion Nhich is accompanied by a recitation of the facts upon which it is based. An opinion not accompanied by such a factual recitation may, nevertheless, be `pure opinion' if it does not mply that it is based upon undisclosed facts. When, however, the statement of opinion mplies that it is based upon facts which justify the opinion but are unknown to those ~eading or hearing it, it is a `mixed opinion' and is actionable" Steinhilber v. Alphonse 68 ~ .Y. 2d 283, 289 (citations omitted).

Courts have avoided setting forth criteria which can be universally applied t istinguish fact from opinion. They generally require reading the full extent of th ~mmunication, consideration of the social context or setting surrounding th ~mmunication, assessment of whether the language used has a precise meaning and i ~e statement capable of being proven true or false. See gen. Buckley v. Littel 539 F2 82, 895; 011man v. Evans 750 F 2d 970, 978-984.

In viewing statements in the totality of their circumstances, the Court of Appeal etermined such statements that a person was a "scab" and "lacks talent ambition an iitiative" was protected opinion. Steinhilber, supra..

"It has long been our standard in defamation actions to read published articles i

to test their effect on the average reader, not to isolate particular phrases but insider the publication as a whole" /mmuno AG v. Moor-Jankowski 77 NY2d 235, 250. hus, to determine context, one must read all of the words surrounding the excerpted bjectionable phrases. Plaintiffs' complaint excerpts the most objectionable statements om a larger post and out of context they appear defamatory. That context is a post on ~e blog maintained by Ms. Hludzenski. The Oxford Dictionary defines a blog as a nal website on which an individual records opinions, links to other sites .etc. on ;gular basis. Merriam Webster defines a blog as a website that 'contains an onlinE ersonal journal with reflections, comments and often hyperlinks provided by the writer. imilar to the context of the statements made in Steinhilber, one may reasonably expec ~ find opinion when reading a blog such as Pandorasboxofrocks.

The post relating to Marty Mason and Donnie Mason set forth in paragraph 17 complaint identifies the facts upon which the objectionable statement is made, cifically that both Mason's have contracts with wind developers and that Donnie M ntroduced a resolution before the Town of Cape uincent Board in an attempt to limit tho may vote in Cape Vincent. The fact that the Masons have contracts with wind opers and that Donnie Mason submitted a resolution seeking to restrictwho may > the basis of the Defendant's opinion statement that they are not fit to hold office. If th ;ourt were to hold that such a statement is actionable, virtually any criticism of a candidat >r office because he supports one position over another would be actionable and the fir: mendment would be totally gutted.

The second post, alleged in paragraph 18 of the Plaintiffs' complaint as defamatory, that Defendant falsely stated the Plaintiffs were "attempting to take the right away people to be voters against wind", and "wanted to deny citizens in our community a hoice." Plaintiff King's own Affidavit states that he and the Plaintiffs (who were also entified as supporters of Citizens for Fair Government)gathered to find a solution to stop practices which they thought were illegal, and that Plaintiffs supported a position th
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inters be required to show a driver's licence with a Cape Vincent address in order to vot n local elections. This requirement would deny the right to vote of citizens who are legal) registered to vote in Cape Vincent who do not possess a driver's license with a Cap Jincent address.. Undoubtedly, some of these individuals would vote against pro-win ssues and/or candidates. No evidence has been presented to show this statement i alse. Plaintiffs may legitimately believe these people do not have the right to vote in Cap /incent, but their belief doesn't make the statement false or slanderous..

The third post, alleged in paragraph 19 of the Plaintiffs' complaint as defamatory ;fers to Plaintiffs as a gang and that they are using "intimidation or exacting retribution gainst certain individuals who have registered to vote in Cape Vincent. The actual pos ays "Gary. King is the Chairman of a new gang (Citizens for Fair Government). Their nex fission appears to be intimidation or exacting retribution against those people that havE ither registered to vote in Cape Vincent or changed their primary residence in order tc ate in Cape Vincent." The Court acknowledges that often times the word "gang" has negative connotation, but that does not make it defamatory. The statement "appears clearly indicates it is the writer's opinion. She also defines the gang as the group Citizen: for Fair Government. She then goes on to state the basis for her opinion; the fact tha Harold W iley and Gary King collected a list of new voters and sent letters to the assessor: of the municipalities where they were previously registered to vote. This fact is contested. In Mr. King's affidavit, he states that he did not draft, sign. or otherwise authorize the issuance of the letter. He does not contest that he collected the names, he does not statE he had no knowledge of the letter prior to its mailing, however, with his assertion i becomes a question of fact as to what his participation and knowledge was, and ultimately ~rhether the statement was defamatory. It is not the statement that he sent the letter tha s defamatory, but rather that the defendant then used an untrue fact to conclude hE ntimidated or exacted retribution from prospective voters. Plaintiff is entitled to discovery to learn if defendant knew that Mr. King was not the :rue author and disregarded the information.

Based on the foregoing, the second cause of action is dismissed and the first and ird causes of action will be limited to the post set out at paragraph 19 of the complaint.

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(Civil Rights Law 76-a)

A Defendant in an action involving public petition and participation may recover attorneyfees, other compensatory damages and punitive damages if certain factors present and provable. The law was created as a counter to strategic lawsuits agai blic participation (SLAPP). The legislature wanted to safeguard the free expression ch, petition and association rights

98 F Sup 2d 347.

To be successful, the Plaintiff must be a public applicant or permittee, which eludes any person with an interest, connection or affiliation with such person. The su ust be "materially related to any effects of the defendant to report on, comment on; ru n, challenge or oppose such application", and the action was commenced or continued Without substantial basis in fact in law. Defendant has failed to show that plaintiffs Marlene urton and Darrel Burton have any interest in the pending application with the Town. hough the proof is that Gary King and Paul Mason have contracts for wind turbines there gas no proof the contracts were with British Petroleum. Harvey White, Frank Giaquinto, sonny Mason and Marty Mason have contracts with British Petroleum and thus are s with an interest, connection or affiliation with the applicant British Petroleum. The ext issue that defendant must show to be successful in a summary judgment action nst these four plaintiffs is that the suit is materially related to any efforts of the dants to report on, comment on, rule on, challenge or oppose such application. T that the subject matter of this lawsuit is not related to the pending application for t evelopment of wind power in the Town of Cape Vincent is beyond comprehension. laintiffs' own complaint frames the suit as pro wind versus anti wind. The Defendant' osts are directly related to wind power and the application pending before the Town.

Whether or not British Petroleum paid for the Plaintiffs' legal fees is not a factor that mu: be shown by the Defendant to be successful. Finally Defendants must show that the "su was commenced or continued without substantial basis in fact and law and could not b supported by substantial argument for the extension, modification or reversal of existin law." As one cause of action has not yet been fully developed, the Defendants have nc met their burden and summary judgment on this issue must be denied at this time.

ted:

May ~

, 2013

Watertown, New York

ENTER