FILED: NEW YORK COUNTY CLERK 09/07/2016 07:13 PM INDEX NO.

653668/2016
NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 09/07/2016

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF NEW YORK
-----------------------------------------------------------x

Bibliotechnical Athenaeum,
Plaintiff,

-against- Index No.: 653668/2016

National Lawyers Guild, Inc., &

The National Lawyers Guild
Foundation, Inc.,

Defendants.
---------------------------------------------------------x

MEMORANDUM OF LAW IN SUPPORT OF MOTION TO DISMISS

Contents

I. THE FIRST AMENDMENT AND NEW YORK LAW ALLOW A PUBLICATION TO REFUSE
ADVERTISING ........................................................................................................................................4

II. DEFENDANTS' ANNUAL DINNER IS NOT A PUBLIC ACCOMMODATION........................6

III. PLAINTIFF LACKS STANDING TO BRING THIS ACTION.........................................................8

IV. PLAINTIFF HAS NOT QUALIFIED TO DO BUSINESS IN NEW YORK STATE ........................9

V. PARAGRAPHS 3 and 10-13 OF THE COMPLAINT SHOULD BE STRICKEN PURSUANT TO

C.P.L.R. SECTION 3024(b).....................................................................................................................10

VI. PLAINTIFF'S COUNSEL WILL BE A WITNESS AND SHOULD BE DISQUALIFIED.............10

CONCLUSION........................................................................................................................................11

Table of Authorities

Rules and Statutes

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22 NYCRR 1200.0 Rule 3.7................................................................................................................4, 10

22 NYCRR 1200.0 Rule 4.1....................................................................................................................10

C.P.L.R. Section 3024(b)......................................................................................................................4,10

C.P.L.R. Section 3211(a)(7).......................................................................................................................4

First Amendment..................................................................................................................................4,5,6

New York City Administrative Code Section 8-102(9) ............................................................................7

New York Business Corporation Law Section 1312 (a) ...........................................................................9

New York Human Rights Law section 292................................................................................................7

Cases
American Ins. Asso. v. Chu, 64 N.Y.2d 379 (1985), certiorari denied 474 U.S. 803 (1985)
...................................................................................................................................................................9

Baez v. Ende Realty Corp., 30 Misc. 3d 1204(A) (Supreme Court, Bronx County 2009), affirmed 78
A.D.3d 576 (1st Dept. 2010)......................................................................................................................9

Baychester Shopping Ctr. v. Llorente, 175 Misc. 2d 739 (Supreme Court New York County
1997)........................................................................................................................................................10

Bloomfield v Cannavo, 123 A.D.3d 603 (1st Dept. 2014)........................................................................8

Camp-of-the-Pines, Inc. v. New York Times Co., 184 Misc. 389 (Supreme Court Albany County 1945). 5

Chen v Huynh, 2014 N.Y. Misc. LEXIS 5198 (Supreme Court Queens County 2014)..........................10

Cohen v. City of New York, 255 F.R.D. 110 (Southern District of New York 2008)..................................6

Credit Suisse International v. URBI, 971 NYS2d 177 (Supreme Court, New York County 2013)...........9

Douglass v. Londonderry Sch. Bd., 372 F. Supp. 2D 203 (District of New Hampshire 2005)..................4

Fagan v. Axelrod, 146 Misc. 2d 286 (Supreme Court Albany County 1990)............................................7

Falk v. Gallo, 73 A.D.3d 685 (2d Dept. 2010).........................................................................................10

Hanrahan v. Terminal Station Com., 206 N.Y. 494 (1912)........................................................................8

Leeds v. Meltz, 85 F.3d 51 (2d Circuit 1996).............................................................................................5

Matter of Hart, 118 A.D.3d 13 (1st Dept. 2014) .....................................................................................11

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McElduff v McElduff, 101 A.D.3d 832 (2d Dept. 2012)..........................................................................10

Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974).............................................................4,5

Midwest Motor Sports v. Arctic Cat Sales, Inc., 347 F.3d 693(8th Cir. 2003).........................................11

Morrow v. USA Today Newspaper, 1988 U.S. Dist. LEXIS 4368 (Southern District of New York 1988) 5

Ness v. Pan American World Airways, 142 A.D.2d 233 (Appellate Division 2d Dept. 1988)...................7

New York Roadrunners Club v. State Div. of Human Rights, 55 N.Y.2d 122 (1982).................................7

People v. Pautler, 35 P.3d 571 (Colo. 2001)............................................................................................11

Poughkeepsie Buying Service, Inc. v. Poughkeepsie Newspapers, Inc., 205 Misc. 982 (Supreme Court
Orange County 1954).................................................................................................................................5

R.I. Affiliate v. Begin, 431 F. Supp. 2d 227 (District of Rhode Island 2006).............................................4

Resident Participation of Denver, Inc. v. Love, 322 F. Supp. 1100 (District of Colorado 1971)...............5

Showcase Limousine v. Carey, 269 A.D. 2d 133 (First Dept. 2000)..........................................................9

Soc'y of Plastics Indus. v. County of Suffolk, 77 N.Y.2d 761 (1991).........................................................8

Thompson v Andy Warhol Found. for the Visual Arts, 2015 N.Y. Misc. LEXIS 2866 (Supreme Court
New York County 2015)............................................................................................................................7

United Food & Commercial Workers Local 919, etc. v. Ottaway Newspapers, Inc., 1991 U.S. Dist.
LEXIS 20844 (United States District Court for the District of Connecticut 1991)...................................5

West Virginia Bd. of Ed. v. Barnette, 319 U.S. 624 (1943)........................................................................4

Wooley v. Maynard, 430 U.S. 705 (1977)..................................................................................................4

Articles
Ryan Grenoble, BuzzFeed Refuses To Run Trump Ads, Backs Out Of Agreement With RNC, The
Huffington Post, June 16, 2016 http://www.huffingtonpost.com/entry/buzzfeed-donald-trump-
republican-ads_us_57558b62e4b0ed593f14e63b .....................................................................................6

H. Wayne Judge, Business Tort: Newspaper's Refusal to Accept Advertising, Boston College Law
Review Vol. 3, Issue 3 (1962).....................................................................................................................6

Hillary Miller, Who Are the Winners and Losers Following Googles Refusal to Carry Payday-Loan
Advertising?, Medium.com May 12, 2016 https://medium.com/@hilarybmiller/who-are-the-winners-

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and-losers-following-googles-refusal-to-carry-payday-loan-advertising-57e433364642#.9vbnkiyny ....6

Defendants submit this Memorandum of Law in support of their Motion to Dismiss under

C.P.L.R. Section 3211(a)(7), or to strike certain paragraphs of the Complaint under C.P.L.R. Section

3024(b), and to disqualify plaintiff's counsel under the advocate witness rule, 22 NYCRR 1200.0 Rule

3.7.

As is set forth in the Complaint, Plaintiff, a self-described Israeli organization, brings suit

claiming that Defendants National Lawyers Guild and National Lawyers Guild Foundation, Inc. had an

obligation under the Human Rights laws of New York City and New York State to accept its

advertisement in the program for their annual event.

ARGUMENT

I. THE FIRST AMENDMENT AND NEW YORK LAW ALLOW A PUBLICATION TO

REFUSE ADVERTISING

As a threshold matter, organizational publications such as printed programs and yearbooks

clearly fall within the ambit of the First Amendment, R.I. Affiliate v. Begin, 431 F. Supp. 2d 227

(District of Rhode Island 2006); Douglass v. Londonderry Sch. Bd., 372 F. Supp. 2D 203 (District of

New Hampshire 2005).

The First Amendment generally protects us from being forced to utter messages in which we

do not believe, West Virginia Bd. of Ed. v.Barnette, 319 U.S. 624 (1943), or to use our own property to

convey such messages, Wooley v. Maynard, 430 U.S. 705 (1977). The definitive Supreme Court case

on the First Amendment right of publications to reject content remains Miami Herald Publishing Co. v.

Tornillo, 418 U.S. 241 (1974). The Supreme Court rejected a Florida newspaper right-of-reply law,

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holding that the Florida statute fails to clear the barriers of the First Amendment because of its

intrusion into the function of editors. A newspaper is more than a passive receptacle or conduit for

news, comment and advertising. The choice of material to go into a newspaper, and the decisions made

as to limitations on the size and content of the paper, and treatment of public issues and public officials

whether fair or unfairconstitute the exercise of editorial control and judgment; see also Resident

Participation of Denver, Inc. v. Love, 322 F. Supp. 1100 (District of Colorado 1971) (newspapers

declined activist group's ads opposing a meat processing plant); United Food & Commercial Workers

Local 919, etc. v. Ottaway Newspapers, Inc., 1991 U.S. Dist. LEXIS 20844 (United States District

Court for the District of Connecticut 1991), (District Court, following Tornillo, dismissed a union's

claim that a newspaper was legally required to publish its ad); Morrow v. USA Today Newspaper, 1988

U.S. Dist. LEXIS 4368 (Southern District of New York 1988)(refusal to run prisoner's classified ad);

Leeds v. Meltz, 85 F.3d 51 (2d Circuit 1996) (student newspaper declined alumni's controversial

advertisement).

New York common law is in accord. In Poughkeepsie Buying Service, Inc. v. Poughkeepsie

Newspapers, Inc., 205 Misc. 982 (Supreme Court Orange County 1954), plaintiff claimed that

defendant's virtual monopoly as the sole Poughkeepsie newspaper caused irreparable harm when it

declined to print plaintiff's advertisements. The court ruled: it has been generally held that the

publication and distribution of newspapers is a private business and that newspaper publishers lawfully

conducting their business have the right to determine the policy they will pursue therein and the

persons with whom they will deal. In Camp-of-the-Pines, Inc. v. New York Times Co., 184 Misc. 389

(Supreme Court Albany County 1945), the Court vindicated the New York Times' refusal to accept

advertising for the plaintiff's vacation resort, finding that the law is definite and certain as to the

rights of a publisher of a newspaper to sell its product to whomever it pleases and to refrain from

selling to those it deems undesirable. For similar cases from other common law jurisdictions, see H.

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Wayne Judge, Business Tort: Newspaper's Refusal to Accept Advertising, Boston College Law

Review Vol. 3, Issue 3 (1962)1 (cases cited at footnote 7).

This year, a well-known Web-based publication, Buzzfeed, announced its refusal to accept any

Republican- or Donald Trump-related advertising, stating that We dont run cigarette ads because they

are hazardous to our health, and we wont accept Trump ads for the exact same reason,2 and Google

announced it would no longer carry pay day loan advertising.3

Plaintiff's attempt to force the defendants to run its advertisement in their program is flatly

contrary to definitive First Amendment jurisprudence on the issue.

II. DEFENDANTS' ANNUAL DINNER IS NOT A PUBLIC ACCOMMODATION

Plaintiff states in its Complaint that Defendants' dinner event constitutes a public

accommodation--but a review of the New York State and City laws Plaintiff cites, and the cases

decided under them, make clear that as a matter of law, this is not so.

The National Lawyers Guild is a progressive bar association committed to advancing civil

rights and civil liberties, and it provides representation for persons who voice dissent from

governmental policies, Cohen v. City of New York, 255 F.R.D. 110 (Southern District of New York

2008). As such, it is clearly and eminently a private organization, and by no stretch of the imagination

are its meetings, conferences or dinners public accommodations under New York law.

Those laws, relied on by Plaintiff, clearly envision permanent physical installations, such as

1 http://lawdigitalcommons.bc.edu/cgi/viewcontent.cgi?article=2672&context=bclr,

2 Ryan Grenoble, BuzzFeed Refuses To Run Trump Ads, Backs Out Of Agreement With RNC, The Huffington Post, June
16, 2016 http://www.huffingtonpost.com/entry/buzzfeed-donald-trump-republican-ads_us_57558b62e4b0ed593f14e63b

3 Hillary Miller, Who Are the Winners and Losers Following Googles Refusal to Carry Payday-Loan Advertising?,
Medium.com May 12, 2016 https://medium.com/@hilarybmiller/who-are-the-winners-and-losers-following-googles-refusal-
to-carry-payday-loan-advertising-57e433364642#.9vbnkiyny

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hotels, restaurants, beach clubs and private eating clubs. New York State Human Rights Law section

292 defines a "place of public accommodation, resort or amusement" as including inns, taverns, road

houses, hotels, motels....restaurants, or eating houses....buffets, saloons, barrooms .barber shops,

beauty parlors, theatres, motion picture houses, airdromes, roof gardens, music halls, race courses,

skating rinks... The law creates a specific exception for any institution, club or place of

accommodation which proves that it is in its nature distinctly private. New York City Administrative

Code Section 8-102(9) is very similar to the state law, and also excepts distinctly private

organizations.

Plaintiff, in attempting to define the annual dinner of the National Lawyers' Guild as a public

accommodation, does not suggest any visible logical limit to the doctrine that any group of people

getting together to dine (including a family reunion of the undersigned) would constitute a public

accommodation in its view. New York courts have rejected attempts to expand the public

accommodation doctrine beyond its bounds, Ness v. Pan American World Airways, 142 A.D.2d 233

(Appellate Division 2d Dept. 1988); Thompson v Andy Warhol Found. for the Visual Arts, 2015 N.Y.

Misc. LEXIS 2866 (Supreme Court New York County 2015) (the Warhol Authentication Board is a

non-profit organization and thus is not a place of public accommodation), and are expert at drawing a

line to prevent state power from reaching into private spaces, for example, New York Roadrunners

Club v. State Div. of Human Rights, 55 N.Y.2d 122 (1982) (running club was private, though not-for-

profit, organization....under no legal compulsion to admit certain contestants); Fagan v. Axelrod, 146

Misc. 2d 286 (Supreme Court Albany County 1990) (no smoking law does not apply to

significantly private areas, such as private homes, residences, automobiles, hotel or motel rooms, or to

private events).

Plaintiff attempts to stretch public accommodation law to the breaking point in applying it to

Defendants' dinner.

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 III. PLAINTIFF LACKS STANDING TO BRING THIS ACTION

Plaintiff fails to assert that it is a corporation or any other specific type of Israeli legal entity,

describing itself merely in paragraph 5 of the Complaint as an organization. Nowhere does Plaintiff

specify if it is a commercial entity or an organization founded for activism (such as the bringing of this

litigation). However, by describing itself as an organization, Plaintiff plants itself squarely within

the New York State case law regarding the standing of organizations, Soc'y of Plastics Indus. v. County

of Suffolk, 77 N.Y.2d 761 (1991), in which the Court of Appeals set forth the following rule: First, if

an association or organization is the petitioner, the key determination to be made is whether one or

more of its members would have standing to sue....Second, an association must demonstrate that the

interests it asserts are germane to its purposes so as to satisfy the court that it is an appropriate

representative of those interests. Third, it must be evident that neither the asserted claim nor the

appropriate relief requires the participation of the individual members.

Plaintiff fails every section of this test. The Complaint fails to state who the members are, or to

assert any specific harm, so Plaintiff's pleading fails to demonstrate that any member suffered the

requisite injury necessary for standing. Secondly, Plaintiff has failed to describe its business purposes,

so it cannot demonstrate that it is an appropriate representative of those interests. Third, by making

no showing whatever on the first two sections, Plaintiff cannot demonstrate that neither the asserted

claim nor the appropriate relief requires the participation of the individual members.

Plaintiff does not articulate any harm or injury that he will suffer that is in some way an

identifiable interest of his own, different from that of the public at large, Bloomfield v Cannavo, 123

A.D.3d 603 (1st Dept. 2014); Hanrahan v. Terminal Station Com., 206 N.Y. 494 (1912) ( no

determination of a real controversy). Courts must decline jurisdiction when they are merely being

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asked for an advisory determination, American Ins. Asso. v. Chu, 64 N.Y.2d 379 (1985), certiorari

denied 474 U.S. 803 (1985). Plaintiff here has entirely failed to allege any business or organizational

interest in running the ad, or any conceivable harm from being refused the opportunity to do so.

The Complaint should be dismissed because the Plaintiff has failed to show its standing to bring

the action.

IV. PLAINTIFF HAS NOT QUALIFIED TO DO BUSINESS IN NEW YORK STATE

New York Business Corporation Law Section 1312 (a) states that a foreign corporation doing

business in this state without authority shall not maintain any action or special proceeding in this state

unless and until such corporation has been authorized to do business in this state and it has paid to the

state all fees and taxes imposed under the tax law or any related statute, as defined in section eighteen

hundred of such law, as well as penalties and interest charges related thereto, accrued against the

corporation.

Plaintiff's alleges in paragraph 5 of the Complaint that it does business in New York, and never

specifically states that Plaintiff is a nonprofit or is not a corporation. It thus appears that Plaintiff is

subject to Section 1312(a)'s registration requirement, but a review of the Secretary of State's website

(of which this Court can take judicial notice, Baez v. Ende Realty Corp., 30 Misc. 3d 1204(A)

(Supreme Court, Bronx County 2009), affirmed 78 A.D.3d 576 (1st Dept. 2010) does not disclose that

Plaintiff has registered. If Plaintiff is in fact subject to Section 1312(a), the Complaint must be

dismissed if Plaintiff does not bring itself into compliance, Credit Suisse International v. URBI, 971

NYS2d 177 (Supreme Court, New York County 2013); Showcase Limousine v. Carey, 269 A.D. 2d 133

(First Dept. 2000).

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 V. PARAGRAPHS 3 and 10-13 OF THE COMPLAINT SHOULD BE STRICKEN PURSUANT
TO C.P.L.R. SECTION 3024(b)

C.P.L.R. Section 3024(b) states: A party may move to strike any scandalous or prejudicial

matter unnecessarily inserted in a pleading. Paragraphs 3 and 10 through 13 of the Complaint imply

that Defendants may in the future engage in anti-Semitic speech or are working for the destruction of

Israel. These assertions are not supported, are unnecessary to a cause of action for public

accommodations discrimination, and are very prejudicial to Defendants, Chen v Huynh, 2014 N.Y.

Misc. LEXIS 5198 (Supreme Court Queens County 2014) (accusations of bigamy, adultery and

abortion); Baychester Shopping Ctr. v. Llorente, 175 Misc. 2d 739 (Supreme Court New York County

1997) (newspaper articles about worst landlords).

These paragraphs should be stricken from the Complaint.

VI. PLAINTIFF'S COUNSEL WILL BE A WITNESS AND SHOULD BE DISQUALIFIED

As set forth in the Affidavit of Tasha Moro, submitted herewith, Plaintiff's counsel, Mr. Abrams,

personally contacted Defendants as an apparent employee or member of Plaintiff. 22 NYCRR 1200.0

Rule 3.7 of the Rules of Professional Conduct provide that a lawyer shall not act as advocate before a

tribunal in a matter in which the lawyer is likely to be a witness on a significant issue of fact, except in

certain cases not applicable here, McElduff v McElduff, 101 A.D.3d 832 (2d Dept. 2012); Falk v.

Gallo, 73 A.D.3d 685 (2d Dept. 2010). Plaintiff in setting up and commencing this case has disclosed

no other visible witness than counsel Abrams himself, who has chosen to make himself the obvious

deposition witness as to the facts and circumstances of plaintiff's attempt to place an ad in Defendants'

program.

Plaintiff may also have violated 22 NYCRR 1200.0 Rule 4.1, which states: In the course of

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representing a client, a lawyer shall not knowingly make a false statement of fact or law to a third

person. This rule prohibits attorneys from using ruses or misdirection to obtain information from

defendants, Matter of Hart, 118 A.D.3d 13 (1st Dept. 2014) (attorney misrepresented herself as

journalist to obtain name of a witness from defendant); Midwest Motor Sports v. Arctic Cat Sales, Inc.,

347 F.3d 693(8th Cir. 2003) (attorney's investigator posed as potential customer); People v. Pautler, 35

P.3d 571 (Colo. 2001) (prosecutor posed as public defender). Mr. Abrams' failure to disclose he was

an attorney was a very significant omission, as he was in effect gathering evidence, by soliciting a

statement of policy for use in this litigation (see Moro Affidavit, paragraph 3: Is it a problem that the

organization is Israeli? I realize that this is a sensitive issue) and in fact asserts he received such a

statement (Paragraph 21 of the Complaint: the Guild rejected the advertisement, advising

Bibliotechnical that it would not accept monies from an Israeli organization).

Mr. Abrams should be disqualified as counsel for Plaintiff under the advocate-witness rule.

CONCLUSION

The Complaint should be dismissed in its entirety. In the alternative, the paragraphs listed above

should be stricken, and Mr. Abrams should be disqualified as Plaintiff's counsel.

DATED: Amagansett, N.Y.

September 1, 2016

/s/Jonathan Wallace
Jonathan Wallace
Attorney for Defendants
P.O. 728
Amagansett, N.Y. 11930
jonathan.wallace80@gmail.com
917-359-6234

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