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STATE OF NEW YORK

SUPREME COURT COUNTY OF ONONDAGA

GARY J. LAVINE, NOTICE OF ENTRY

Plaintiff, Index No.: 001409/2020

v.

WILLIAM J. FITZPATRICK,

Defendant.

PLEASE TAKE NOTICE that attached hereto is a true and correct copy of the Order of

the Honorable Deborah H. Karalunas, J.S.C., which is dated August 31, 2020, and which was

entered in the Clerk's Office for the County of Onondaga on August 31, 2020.

Dated: September 1, 2020

Gary J. avine, Esq., Pro e
110 West Fayette Street, Suite 1000
Syracuse, New York 13202
Tel: (315) 422-1500
E-Mail: glavine@bhlawpllc.com

TO: Edward Z. Menkin, Esq.

Attorneys for Defendant, William J. Fitzpatrick
440 South Warren Street
Syracuse, New York 13202
Tel: (315) 425-1212
Email: edmenkin@gmail.com

2020-09-01 Notice ofEntry of Decision Order.DOCX

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SUPREME COURT
STATE OF NEW YORK COUNTY OF ONONDAGA

GARY J. LAVINE:,

Plaintiff, DECISION and ORDER

V. 001409/2020

WILLIAM J. FITZPATRICK,

Defendant.

This action for defamation was commenced by summons and verified complaint

filed February 6, 2020. In the verified complaint, plaintiff alleges, upon information and

belief, that on FE3bruary 13, 2019, defendant "stated to the executive committee of the

Onondaga County Conservative Party that Gary Lavine had offered to withdraw from

the 2019 race for Onondaga County District Attorney in exchange for a payment by his

son Daniel Fitzpatrick to Gary Lavine's sister Laura Lavine." Ver. Comp. ,I 2.

Thereafter, defendant moved pursuant to CPLR 3024(a) for a more definite statement.

By Decision and Order dated April 28, 2020, without addressing the merits of the

complaint, this Court denied defendant's motion opining that where "the issue is lack of

detail, such that what defendant really wants is an amplification of the allegations rather

than their clarification, the ready remedy is to demand a bill of particulars." Dkt. #12, p.

2.

Defendant filed a verified answer to the complaint on May 6, 2020. Dkt. #13. In

the verified answer, with respect to the alleged defamatory allegation, defendant stated:

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"[p]laintiff has failed to articulate with any specificity exactly what the Defendant

supposedly stated at the meeting of the Executive Committee of the Conservative Party

on February 13, 2019. Therefore and upon that basis, the Defendant DENIES the

allegations contained in ,I 2 of the Complaint." Ver. Answer ,I 3. Two days later, on

May 8, 2020, defendant filed his First Set of Interrogatories. Dkt. # 14. Plaintiff

responded to thei Interrogatories on or about May 28, 2020. Menkin Aff. Exh. A.

Dissatisfied with plaintiff's responses, by Notice of Motion dated June 15, 2020, and

without submission of the requisite good faith affirmation required by 22 NYCRR

202.?(a), defendant seeks a "protective order" to compel plaintiff to further respond to

the interrogatorieis.

Defendant specifically objects to plaintiff's responses to interrogatories 1, 4, 10

and 11 .1 These interrogatories and plaintiff's responses are as follows:

Interrogatory 1

Please set forth in haec varba the precise words the words used by
the Defendant that the Plaintiff alleges defamed him before the
Executive Committee of the Conservative Party on February 13,
2019.

Response

See Exhibit "A" paragraph 6 (Affidavit of Russ Johnson). It is my

information and belief that Mr. Johnson was contacted by Jeremy
Cali, Esq. on behalf of Mr. Fitzpatrick.

Interrogatory 10

Please identify which of the four different subsections of New York

Penal Law§ 200.56 the Plaintiff alleges he was "arguably" accused
of violating by the Defendant's defamation."

: Although plaintiff initially objected to plaintiff's response to interrogatory 4, at a virtual court conference
with the parties following the filing of this motion, defendant withdrew that objection.

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Response

Subsections 1, 2 and 3.

Interrogatory# 11

Please identify which facts or actions articulated or implied by the

Defendant's supposed accusations would constitute a basis for the
prosecution of the Plaintiff under New York Penal Law§ 200.56.

Response

See Exhibit "A" paragraph 6.

Exhibit A, incorporated by plaintiff in his responses to defendant's interrogatories,

is an affidavit of Russ Johnson sworn to on March 4, 2020. In pertinent part, that

affidavit provides:

2. During the time pertinent to the subject of this affidavit, I was

chair of the Onondaga County Conservative Party.

* * *

4. On February 13, 2019, in a meeting room at the DeWitt

Town Hall, Mr. Fitzpatrick was interviewed by the county
Conservative Party executive committee. I presided over the
interview.

5. During the interview, Mr. Fitzpatrick referenced a dispute

between his son Daniel and Gary Lavine's sister, Laura Lavine.

6. Mr. Fitzpatrick stated that Mr. Lavine told him (Fitzpatrick)

that he (Lavine) would withdraw from the race for District Attorney if
his son Daniel paid money to Mr. Lavine's sister.

Johnson Aff.

In an action for defamation, "the particular words complained of shall be set forth

in the complaint, but their application to the plaintiff may be stated generally." CPLR

3016(a). Case law construing that statute elaborates that the specificity required

includes identification of "the particular words that were said, who said them and who

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heard them, whern the speaker said them, and where the words were spoken."

Amaranth LLC v J.P. Morgan Chase & Co., 71 AD3d 40, 48 (1st Dep't 2009), Iv

dismissed in part. denied in part, 14 NY3d 736 (2010); see also Glazier v. Harris, 99

A.D.3d 403, 404 (1st Dep't 2012). The words need not be enclosed in quotation marks.

Glazier, 99 A.D.3d at 404.

Plaintiff's response to interrogatory 1 sufficiently comports with CPLR 3016(a).

The response includes a sworn statement of the particular words allegedly spoken, who

said them, who heard them, and where and when they were spoken. Whether the

statement is accurate, defamatory or truthful is not relevant on this motion to compel;

rather, those are questions for another day.

Likewise, also not relevant to this motion are: (1) whether Mr. Johnson was

contacted by Jeremy Cali (response to interrogatory 1); (2) whether subsections 1, 2

and 3 of Penal Law§ 200.56 are "mutually exclusive," (interrogatory 10); and (3)

whether the facts alleged by plaintiff (as set forth in Mr. Johnson's affidavit) would

constitute a basis for prosecution of plaintiff under Penal Law§ 200.56 (response to

interrogatory 11 ).

Based on the foregoing, defendant's motion is DENIED.

It is so ORDERED.

Dated: August 31, 2020

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Papers Considered on Motion:

1) Defendant's Notice of Motion dated June 15, 2020

2) Affirmation of Edward Z. Menkin, Esq. dated June 15, 2020 with Exhibit A
attached
3) Affidavit of Gary J. Lavine, Esq. sworn to July 1, 2020, with Exhibit A attached
4) Reply Affirmation of Edward Z. Menkin, Esq. dated July 8, 2020
5) Letter of Edward Z. Menkin, Esq. dated August 3, 2020
6) Letter of Gary J. Lavine, Esq. dated August 6, 2020

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