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SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF JEFFERSON

GARY KING,HARVEI'WHITE, DONNIE MASON,MARTY MASON, PAUL MASON,MARLENE BURTON, DARREL BURTON and FRANK GIAQUINTO Plaintiffs, -againstKATHRYN A. HLUDZENS~I T2l[ClE-IARD C. V6'ILEY, SR. and JOHN DOES,1-10 Defendants. Index No. 2012-1654

PLAINTIFFS'IVIEM012ANDUM OF LAW IN OPPOSITION TO DEFENI)A1~7[''S MOTION FOR SUMMARY JUDGMEN7C

T.

PRELIMINARY STATEMENT Defendant Kathryn Hludzenski ("Defendant") seeks Summary Judgment prior to

virtually any discovery being conducted in this case.~ After receiving the benefit of Plaintiffs' responses and corresponding supplemental responses to Defendant's discovery requests, Defendant largely ignored Plaintiffs' own discovery requests. Defendant's blatant disregard to Plaintiffs' relevant discovery requests occurred after Plaintiffs graciously allowed Defendant an extension to respond. As such, Defendant relies solely on aself-serving affidavit that at best does nothing more than create issues of factwhich cannot be decided on summary judgment and certainly not at this stage of the litigation before the Plaintiffs have had the opportunity to conduct discovery. Summary judgment motions prior to the close of discovery, much Less before any discovery has taken place, are contrary to the CPLR and highly disfavored. This case is no exception. Further, the particular facts in this case, known to Plaintiffs at this time, preclude Defendant's request for summary judgment. This is not a case where Plaintiffs are relying on statements made by Defendant that are opinions, hyperbole, name-calling, or rhetoric. Defendant admittedly made statements on the Internet that Plaintiffs have engaged in conduct, that if given its ordinary meaning, accuses Plaintiffs of voter fraud, subjects Plaintiffs to ridicule, and calls their personal and professional reputations into question. These statements are

certainly not afforded the protection contemplated by the First Amendment or the laws of the State of New York. For these reasons, the motion should be denied. Finally, despite Defendant's attempt to mischaracterize the subject matter of this lawsuit in a thinly veiled attempt to recover her attorneys' fees, the simple fact is that Plaintiffs were part
~ Plaintiffs will only respond to Defendant Kathryn Hludzenski's arguments in support of her Motion for Summary Judgment as Plaintiffs and Defendant Richard Wiley have reached an agreement in principle to settle their respective claims.

of a group trying to protect the voting rights of year-round residents of Cape Vincent. Plaintiffs simply sought to have a resolution passed that protected their substantial and continuing daily interests in the operation of Cape Vincent and advancement of the Town's interests. Nowhere in the petition or resolution cited by Defendant does the issue of wind, wind farms, or British Petroleum ("BP") appear. Plaintiffs are not acting on behalf of BP and are certainly not acting in furtherance of any wind contracts they have with BP. After standing idly by and watching their reputations be torn apart in the Cape Vincent community over a period of several years, Plaintiffs had no choice but to take the next step and file this lawsuit in order to stop Defendant's unlawful publication. Defendant's Motion for Summary Judgment should be denied because limited discovery has occurred and the statements in question are unquestionably false statements of fact. Plaintiffs, therefore, ought to be allowed to pursue their claims. II. STATEMENT OF FACTS A. Citizens For Fair government Works To Stop Voter ~+raud. Defendant's self-serving attempt to recast the issues in this case fails. Plaintiffs are members and/or supporters of a local organization called Citizens for Fair Government("CFG") (Affidavit of Gary King ("King Aff."} at ~ 3.) CFG's objective is to ensure that the rights of the citizens of Cape Vincent are protected. (Id. at 4.) To that end, CFG has undertaken numerous measures to safeguard the civil liberties and interests of year-round residents of the Town of Cape Vincent, as it is these very residents that realize the daily impact of the Town's elected officials, adopted laws and ordinances, and the administration of local government. CFG does not limit the issues to which it takes an interest. However, the primary concern of CFG is to curtail suspected voter fraud in the Town of Cape Vincent. (Id. at 6.} Issues

regarding voter registration have been a particular concern because seasonal residents have attempted to change where they are registered to vote in an effort to influence local elections . These efforts allow seasonal residents to realize an immediate benefit and strip yeax-round Cape Vincent residents of their own municipal privileges. For instance, CFG has a significant interest in the New York School Tax Relief Program ("STAR"). STAR provides homeowners partial exemptions from school property taxes. (King Aff. at 16.} In order to qualify for an exemption, an individual must own a home and it must be that person's primary residence. (Id.} A local assessor determines primary residence by, among other things, voting registration and the length of time spent each year on the property. (Id. at ~( 17.) CFG was concerned that part-time residents in Cape Vincent were registering to vote in the Town in an effort to qualify their seasonal property for partial exemption under the STAR program. (Id. at ~( 18.) Clearly, obtaining this partial exemption would divest the local school district of needed funds, thereby causing a negative impact on yeax-round residents with substantial interests in the school district and causing a windfall for the seasonal resident. (Id.) CFG is not the only entity that recognized the impact of seasonal residents changing their voter registration on real property t~ exemptions. In or around October 2011, an unsigned notice was sent to various city assessors notifying each that a resident of their city had recently registered to vote in Cape Vincent.2 (Id. at ~ 19, Exhibit D.) The assessor for the City of Canandaigua, New York, Mark Brown, responded to the notice by contacting the resident in question and inquiring where that resident considered his primary residence to be. (King Aff. at ~ 21, Exhibit E.) The resident, after stating that all of his vehicles were registered in

Canandaigua and that he filed income taxes in Canandaigua, admitted that he considere d
z The unsigned notice purported to be from Harold Wiley and Gary King. However, Mr. King did not draft the notice, did not sign the notice, and did not authorize issuance of the notice in any instance or at any time. (King Aff. at 20.)

Canandaigua to be his primary residence. Nevertheless, the resident still acknowledged that he registered to vote in Cape Vincent. Mr. Brown, in response to this confession, "sug;ested that lae Iaadjust admitted to voterfraud as IZe was not a Cape Vincent residentfor thirty days prior to the election." (Id.) Clearly, Plaintiffs' suspicions that voter fraud was pervasive in Cape Vincent were not unfounded. B. The Resolution Is SupJported By Cape Vincent Residents. In or around the summer of 201 Z, Plaintiffs, as well as several other people, gathered in support of certain public officials. (Id. at ~( 8.) At this gathering, citizens began voicing their concerns over what many believed to be illegal voting practices in the Town of Cape Vincent. (Id.) In response to these concerns, several members of the gathering formulated a measure to drastically reduce or eliminate these perceived illegal voting practices. (Id. at ~ 9.) The proposed measure would require any voter in a Town election to present a New York State ID with a Cape Vincent address. (Id.) The measure formed the basis for a petition that was circulated and ultimately resulted in the August 11, 2011 Resolution (the "Resolution"). (Id. at ~( 9, Exhibit A.) Notably, a commissioner of the Jefferson County Board of Elections was present at the gathering at which the measure was discussed. (Id. at 10.) Although he was unquestionably aware of the basic tenets of the proposed measure, the commissioner expressed little concern over it and, in fact, stated that the only possible negative outcome was that it could be challenged in court. (Id.) Thereafter, in or around early August 2011, the petition was prepared and circulated in the Town of Cape Vincent. The petition, signed by over two hundred (200} citizens, requested that the Town Board take action to resolve illegal and unethical voting methods being carried out in Town elections. (Id. at ~ 11, Exhibit B.) Specifically, the signatories of the petition were

concerned that individuals that owned property in the Town, but rarely lived on that very property, were changing their voter registration in an effort to vote in the Town, materially affect the outcome of elections, and substantially damage Plaintiffs' and other year-round citizens' interests. (Id.) The petition, therefore, requested that the Town Boaxd implement a procedure whereby voters would be required to present a New York State driver's license with a Cape Vincent address in order to vote. (Id. at 12.} The petition was presented to the Town Board and subsequently adopted as the Resolution. (Id. at ~ 13.) Two members of the Town Board did not believe the Resolution to be lawful. As such, the Town Board solicited a letter from the Town Attorney for an opinion regarding the Resolution. (Id. at ~ 14.) The Town Attorney merely opzned That, in his view, "fhe

resolution...is ineffective." (Id. at ~( 15, Exhibit C.) The Town Attorney recognized that a prospective voters must be a resident of the jurisdiction for thirty days and residency is largely a question of intent. (Id.) Plaintiffs shared these concerns. Indeed, Plaintiffs had already received confizmation that these very practices had been occurring in an effort to influence local elections. (Id. at 21, Exhibit E). Plaintiffs merely wanted to do something to limit illegal and/or unethical voting in Cape Vincent. Rather than delve further into the issue and involve the Board of Elections, the Town Board hastily reconvened and rescinded the resolution. C. Defendant Wages Crusade To Destroy Plaintiffs' I~epratations. Defendant, without possessing knowledge of many of these facts, launched a campaign on the website http://pandorasboxofrocks.blo~s~ot.com to destroy the personal and professional reputations of Plaintiffs. Defendant not only called the moral character of many Plaintiffs into question, but also accused Plaintiffs of voter fraud themselves and intimidating and exacting

retribution on prospective voters to accomplish their goals. Readers of these publicat ions, giving the posts their ordinary meaning, no doubt lowered their opinion of Plaintiffs and were left with the impression that Plaintiffs were using unlawful and forceful tactics to accomplish their own voter fraud. In order to protect themselves and their families, Plaintiffs filed the instant lawsuit to put an end to Defendant's unlawful publication of false and disparaging statemen ts and try to repair their reputations. D. Defendant Ygnores lPlaintiffs' Discovery Requests. On or about August 20, 2012, Defendant served Plaintiffs with, among other things, Defendant's First Set of Interrogatories and First Set of Requests for Production ("Defendant's Discovery Requests"). (Affidavit of James W. Kelly, II.("Kelly Aff.") at ~( 3.) Plaintiffs responded to Defendant's Discovery Requests on September 10, 2012. (Id. at 4.) Thereafter, Defendant complained of deficiencies in Plaintiffs' responses. (Id. at ~ 5.} Plaintiffs did not

believe that their responses contained any such deficiencies, however, in an effort to placate and accommodate Defendant, agreed to supplement their responses on October 29, 2412. (Id. at 6.} Requests

Shortly thereafter, Plaintiffs served Requests for Admission, Interrogatories and

for Production on Defendant. (Id. at ~[ 7, Exhibit A.) On November 27, 2013 Defendant requested an extension of time to respond to Plaintiffs' Interrogatories and Requests for Production and strategically answered Plaintiffs' Requests for Admission. (Id. at 8, Exhibit B.)

Plaintiffs graciously granted Defendant's request. (Id. at 9, Exhibit C.) The three-week extension came and passed with no response from Defendant. (Id. at ~( 10.) Plaintiff s' counsel followed up by email and formal letter in compliance with the CPLR in order to avoid overburdening this Court by seeking judicial intervention. (Id. at ~('~ 9-10, Exhibits C, D.) To

date, Plaintiffs have still not received responses to their Interrogatories or Requests fox Production. (Id. at ~ 10.) Now, after realizing the benefit of Plaintiffs discovery responses and even citing those responses in her Motion, Defendant asks that this Court to enter summary judgment in her favor without affording Plaintiffs the same discovery ar opportunity. Indeed, Defendant blatantly ignored Plaintiffs' requests to produce documents and information in support of her defenses in this case which she directly relies on and cites in her Motion. Plaintiffs have been severely prejudiced by not having the opportunity to discover this information or conduct any additional discovery due to Defendant's failures. In any event, the information known to Plaintiffs at this time forecloses this Court's ability to enter summary judgment in Defendant's favor because the statements are clearly capable of a defamatory meaning to the average reader. For all of these reasons, Defendant's Motion must be denied. ICI. LAW AND A~2GUl0~IENT A. Summary Judggnent Is Premature. Virtually no discovery has been completed in this case due, in large part, to Defendant's lack of candor in responding to Plaintiffs' initial discovery requests. Indeed, not a single deposition has been taken nor a single document been produced by Defendant. As more fully explained below, Plaintiffs are entitled to this discovery in support of their claims and, because limited discovery has occurred, Defendant's Motion must be denied. 1. As a general rule, summary judgment prior to the close of discovery is disfavored. Th drastic remedy of summary judgment should not be granted if there is any doubt as to the existence of an unresolved issue of fact. See Ramsanzmy v. City ofNew Yof-k, 216 A.D.2d

234, 236 (1st Dept. 1995). Moreover, where facts essential to justify opposition to a summary judgment motion may exist but are unknown to the party opposing the motion as they are within the exclusive knowledge of the party seeking summary judgment, a court should deny the summary judgment motion as premature. See CPLR 32120; Smith v. New York, 133 A.D.2d 818, 819-820 (2d Dept. 1987) . In particular, a party opposing sumnnary judgment should be permitted to "complete pretrial discovery with respect to all defendants" before a summary judgment determination can be made. Smith v. New York, 133 A.D.2d at 820; see also Bond v. DeMasco, 84 A.D.3d 1292, 1293 (2d Dept. 2011); Ortiz v. J.P Jack Corp., 286 A.D.2d 671 (2d Dept. 2Q01) (holding that "record was not ripe for reaching a summary determination...since discovery remains outstanding.") Plaintiffs have been deprived of any ability to uncover facts essential to justify their opposition to Defendant's Motion. Defendant's completely ignored almost all of Plaintiffs' discovery requests and, instead, hurriedly filed this Motion in an effort to substantially prejudice Plaintiffs. By failing to engage in pretrial discovery, Defendant has squarely eliminated

Plazntiffs' ability to uncover facts relating to this case. Indeed, facts related to the resolution, petition, community opinion of Plaintiffs, determination of residency by other municipalities, communications by Defendant and other third parties regarding Plaintiffs, and Defendant's state of mind and intent are essential to the validation of claims and defenses in this case. Defendant's own Motion expressly proves this position. Defendant relies on the

purported fact that Gary King sent a notice to various city assessors in support of her position that her statements are true. In reality, and if Defendant had taken the time to investigate this matter through pretrial discovery, she would have discovered that Gary King did not, in fact,

send the notice in question and was not aware that his name was included on the notice. (King Aff. at ~ 19-20, Exhibit D.} All of the categories of evidence identified above would directly support Plaintiff s' arguments in opposition to Defendant's Motion. Further, documents and informat ion regarding the basis for Defendant's statements, such as knowledge regarding her allegations that Plaintiffs intimidated registered voters, are exclusively within Defendant's possession and control. She cannot, therefore, avoid her discovery allegations by prematurely moving for slunmary judgment where evidence to defeat the Motion may, and certainly does, exist. See Westchester Med. Ctr, v New York Cent. Mut. Fi~~e Ins. Co., 915 N.Y.S.2d 912 (Sup. Ct., Nassau County, 2010)("For purposes of[the] motion, it is sufficient for the court to find that evidence sufficient motion may exist, and that disclosure should be permitted.") Defendant's Motion must, therefore, be denied. 2. In a defamation case where malice must be shown, summary judgment prior to the deposition of the defendant is inappropriate. In a defamation action where discovery, such as a deposition, is needed to produce evidence of malice on the part of the party seeking summary judgment, a grant of summary judgment is inappropriate. Kaminester v. Weintraub, 131 A.D.2d 440, 441 (2nd Dept. 1987). Indeed, the Supreme Court has held and the New York Court of Appeals has recognized that a defamation case involving proof of malice "does not readily lend itself to summaxy disposition." See Rinaldi v. Viking Penguin, Inc., 52 N.Y.2d 422, 438 (1981) (quoting to defeat the

Hutchinson v. Proxmire, 443 U.S. 111, 120, n. 9(1979)). Defendant argues that at least two Plaintiffs, Mary and Donnie Mason, are public figures and that they, therefore, must prove malice in order to sustain each of their claims. However, by

filing a motion at this stage of the litigation, Defendant has deliberately preclude d plaintiffs 10

Marty and Donnie Mason from being able to prove that element because they have not been able to depose Defendant. Indeed, Defendant wants to have her cake and eat it too. She cannot avoid her discovery obligations and prejudice Plaintiffs, and then claim that Plaintiffs cannot meet their burden. On the contrary, courts have routinely held that where discovery is needed to prove evidence of malice, summary judgment is inappropriate. See e.g., Kaminester, 131 A.D.2d at 441; Rinaldi, 52 N.Y.2d at 438. Here, there can be no question that Plaintiffs are entitled to conduct Defendant's deposition in order to establish her requisite intent. Defendant's intent is equally as important to the remaining Plaintiffs' claims. All

Plaintiffs have alleged that because the statements in question were made with actual malice, they are entitled to punitive damages. Again, Defendant cannot simply avoid discovery and swiftly move for summary judgment in an effort to escape potential significant liability. Here, Plaintiffs are entitled to depose Defendant to prove that the statements that she made regarding Plaintiffs were made with actual malice and that she, therefore, is subject to punitive damages. Defendant's Motion must, therefore, be denied. 3. Defendant's self-serving affidavit cannot be the basis of a grant of sa~mmary judgment in her favor. A self-serving affidavit offered by the party seeking suznznary judgment is insufficient to establish the party's entitlement to summary judgment. Deephaven Distressed Opportunities Tradings, Ltd. v 3V Capital Master Fund Ltd., 100 A.D.3d 505, 507 (lst Dept. 2012). Here, Defendant offers nothing more than aself-serving affidavit in support of her Motion with accompanying documents that, in some instances, are undeniably not what Defendant claims they are. For instance, and as set forth above, the notice purportedly sent by Gary King to various city assessors was not, in fact, sent by Gary King. As stated, Gary King did not send the notice and was not aware that his name was included on the notice. (King Aff. at 19-20.) 11

Plaintiffs are certainly entitled to conduct discovery to discover why Defendant believed Gary King sent notice, the actions taken by Defendant to confirm that Gary King sent the notice, whether Defendant disregarded information suggesting that Gary King did not send the notice, and all other information known to Defendant regarding the notice. It is precisely because of these types of circumstances that courts have held that a selfserving affidavit is insufficient to establish a party's entitlement to summary judgment . Moreover, courts widely recognize that under CPLR 3212(f~, where facts essential to justify opposition to a motion for summary judgment are exclusively within the knowledge and control of the movant, summaxy judgment may be denied. This is especially so where the opposing party has not had a reasonable opportunity for disclosure prior to the making of the motion. See Afi~odianz Ltd. v Elgo Diamonds Intl., Inc., No. 113483/08, 2011 N.Y. Misc. LEXIS 258, *6-7 (Sup. Ct., New York County, Feb. 3, 2011} (citing Overseas Reliance Tours &Travel Serv. v Same Co., 17 A.D.2d 578, 580 (1st Dept. 1963}}. Given Defendant's notable misunderstanding regarding at least one document relied on in support of her Motion, it is even more imperative that Plaintiffs have the opportunity to question her regarding the representations made in relation to the other documents attached to her self-serving affidavit. Accordingly, Defendant's Motion must be denied. B. The 5ta#ements Published By Defendant Are Clearly Defamatory. 1. Defendant's attack on Marty and Donnie Mason's personal character and values constitutes defamation. I?efen~dant's publication of statements calling into question the personal character and reputation of plaintiffs Marty and Donnie Masan based on a decision made in their capacity as a public official has no basis in fact. Indeed, by stating that each axe "Men of Substandard Values and Character," Defendant implies that she has facts to support that these znen are somehow 12

immoral, unchaste, or simply bad people. This, of course, is not the case and is further exemplified by Defendant's own arguments. Defendant is absolutely correct when she asserts that plaintiffs Many and Donnie Mason

are required to prove actual malice in order to maintain their causes of action for defamation. See Freeman v. Johnston, 84 N.Y.2d 52, 56 (1994). However, while Defendant seeks to impose the obligation of meeting this standard on plaintiffs Marty and Donnie Mason, she has deliberately barred them from being able to do so. Without being able to properly depose Defendant, and after Defendant refused to answer a single Interrogatory or produc e a single document, plaintiffs Marty and Donnie Mason are only left with one conclusion that Defend acted with actual malice. The meaning that an ordinary and prudent person places on a term can be easily identifiable in the dictionary. Merriam Webster's dictionary defines character as "moral ant

excellence and firmness." Similarly, a person's values are defined as "something, a principl as e or quality, intrinsically valuable or desirable." Defendant's speech goes much further than just criticizing the decisions of two individuals in their public capacity. To be sure, Defend ant states that each has substandard character and values based on a decision, for which there was wide public debate and definitely uncertainty, nnade at a Town Board meeting. Defendant admittedly published this statement based on this decision alone. See generally, Defendant's Motion at p. 67. However, the message conveyed by Defendant's publication has far greater reach. By publishing this reckless statement, Defendant implies that she has facts to support a finding that

Marty and Donnie Mason lack moral fiber. See Lenz Hardwafe Inc. v. Wilson, 94 N.Y.2d 913, (2000)(finding that it is for the court to determine whether the statements made are reasonably capable of conveying a defamatory import).

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New York courts have drawn a clear distinction with this type of statement published about a public official. For instance, in Loden v Nied, 89 A.D.3d 1197(3d Dept. 2011) the court recognized that even statements made by a private citizen of and concerning a public official in the context of an ethics complaint, the statements were actionable. In Loder, defendant accused Plaintiff of, among other things, "repeatedly demonstrating an appearance of impropri ety," "conflict(s)-of-interest and position as Planning Board Chair may have influenc ed the determination of that board," and "behaviors that suggest either an ignorance of, or contemp t for,

the requirements of the State Environmental Quality Review Act." The court in Lodef found "that these statements are susceptible to a defamatory meaning, inasmuch as they convey, at a minimum, serious zmpropriety and, at worst, criminal behavior." 89 A.D.3d at 1200. The statements in question here go further. Defendant has alleged on multiple occasions that Marty and Donnie Mason engaged in serious impropriety while serving on the Town Board based on her view that they acted without awaz-eness of particular state laws. Here, she admittedly has no added basis in fact to publish statements regarding Marty and Donnie Mason' s morals and character and willfully did so anyway. As such, the statement goes well beyond political decision making, is undoubtedly susceptible to a defamatory meaning, and is clearly defamatory. Moreover, because Defendant had no other knowledge or facts to support her baseless statement, there can be no question that she published the statement with the sole intent to damage plaintiffs Marty and Donnie Mason's personal and professional reputations and cause them significant harm. As a result, the statement was unquestionably published with actual malice.

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2. Defendant's statements accusing Plaintiffs of a crime and asserting that Gary King sent the notice are false and clearly defamatory. Defendant's statements that Plaintiffs were "attempting to take the right away from people to be voters against wind," "wanted to deny citizens...a choice," and that "Gary King and

his "gang" has intimidate[ed] or exacted] retribution against those people that have either registered to vote in Cape Vincent or changed their primary residence to vote in Cape Vincent" are false and undeniably defamatory. A statement is defamatory if it "tends to expose the plaintiff to public contempt, ridicule aversion or disgrace, or induce an evil opinion of him in the minds of right-thinking ,

persons, and

to deprive him of their friendly intercourse in society." Rinaldi v. Holt, Rhinehart &Winst on, Inc., 42 N.Y.2d 369, 379 (1977). The New York Supreme Court has conceded that it is "often difficult to distinguish an actionable statement of fact from a protected statement of opinion." Thomas H. v. Paul B., 18 N.Y.3d 580, 584 (2012). Therefore, to aid in this determination, courts examine three factors: (1) whether the allegedly defamatory words have a "precise meaning" that is "readily understood"; (2) whether the statement can be proven as true ox false; and (3) "whether either the full context of the communication in which the statement appears or the broader social context and surrounding circumstances are such as to signal ... readers or listeners that what is being read or heard is likely to be opinion, not fact. Rinaldi, 42 N.Y.2d at 379. Even if the allegedly defamatory statements are "couche d in the language of hypothesis or conclusion," they may be "understood by the reasona ble reader as assertions of fact," and as such, cannot be considered protected opinion. Gross v. New York Times Co., 82 N.Y.2d 146, 154 (1993}.

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a. The defamatory statements published by Defendant can be readily understood as havang a precise meaning. Defendant not only falsely accuses Plaintiffs of attempting to strip Cape Vincent citizens of their right to vote, but also alleges that Plaintiffs intimidate voters and exact retribution to accomplish this objective. These statements have a very precise meaning. Specifically, "duress and intimidation of voters" is a crime in the State of New York. See NY CLS Elec 17-150. Further, Defendant accuses Plaintiffs of being part of a "gang'' in order to effectuate these same objectives. Nothing could be further than the truth. Plaintiffs are merely members or supporters of CFG that attempts to put an end to suspected, and confirmed in at least one situation by a city assessor, voter fraud in Cape Vincent. Allegations that Plaintiffs are part of a gang insinuates that Defendant has facts to support that Plaintiffs are "a group of persons working to unlawful or antisocial ends." It can hardly be said that the circulation of a petition in the exercise of recognized rights is unlawful. Moreover, it has already been established that Gary King did not issue or cause the issuance of the notice on which Defendant wrongly relies. The statements in question are undoubtedly capable of being readily understood as accusing Plaintiffs of the commission of a crime which certainly carries with it a precise meaning. b. The defamatory statements published by Defendant are capable of being proven true or false. Plaintiffs have never intimidated registered voters or exacted any type of retribution on registered voters in Cape Vincent and to suggest otherwise is ridiculous. It is not even clear where Defendant alleges that Plaintiffs even had contact with registered voters to carry out the retribution or intimidation. Defendant's only support for the factual content of this statement is

that a notice was sent to city assessors and that the issuance of that notice, somehow,intimidated voters and exacted retribution on them in violation of the laws of the State of New York. That argument is frivolous on a number of levels. First, if Defendant had investigated the issue rather than chasing her wild theories, she would have discovered that Gary King did not send the notice in question. (King Aff. at ~ 19-20, Exhibit D.) Relying on the issuance of this notice in support of her argument that the statement is true, therefore, fails. As a result,

Defendant has failed to provide any evidence that supports her claim that these statements are true. Therefore, the only evidence in the record dictates that the statements are false and uncontroverted. c. The statements accuse PlaYntiffs of the commission of a cringe and, therefore, are not eapable of being protected opinion. Knowing that there is no factual basis to support her statements, Defendant also argues that the defamatory statements are only her opinion and, thus, protected. Defendant,

unfortunately, ignores clear precedent. New York courts recognize that statements that "convey, at a minimum, serious impropriety, and at worst, criminal behavior" are "susceptible to a defamatory meaning." Loder, 89 A.D.3d at 1200. Indeed, because the statements in question accuse Plaintiffs of the commission of a crime, they are incapable of innocent construction. The statements, therefore, are not afforded constitutional protection, even when couched as opinion. See Rinaldi, 42 N.Y.2d at 382(holding that "accusations of criminal activity, even in the form of opinion, are not constitutionally protected.") For these reasons, the statements that Plaintiffs intimidated and exacted retribution on registered voters in Cape Vincent are false, accuse the Plaintiffs of the commission of a crime, and are clearly defamatory.

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C. Defendant Is Not Entitled To An Award of Attorneys' Fees. N.Y. Civil Rights Law 70-a and 76-a have absolutely nothing to do with the present action. Defendant has attempted to recast the issues in this case in an effort to cloud her illegal conduct and try, futilely, to recover her attorneys' fees. The issues in this case are strictly limited to Plaintiffs' attempts to stop voter fraud in Cape Vincent nothing more. Defendant's

divergent view on a differing topic, the development of wind farms in Cape Vincent, has nothing to do with the present action. As a result, Defendant's counterclaim must fail because voter fraud in Cape Vincent does not involve a public applicant or permittee as required by N.Y. Civil Rights Law 76-a. Further, as Defendant points out, an action must relate to "efforts of the defendant to report on, comment on, rule on, challenge or oppose such application or permission." Here, the statements in question relate directly to the resolution not an application submitted to the Town Board by BP. Moreover, Defendant has presented nothing more than her own self-serving affidavit that she believes that BP is behind this lawsuit. However, as with her other self-serv ing statements, that statement, in and of itself, is insufficient to establish the party's entitlement to summary judgment. Deephaven Distressed Opportunities Tradings, Ltd., 100 A.D.3d at 507. Plaintiffs have repeatedly assured Defendant and counsel that BP has no interest in this lawsuit and certainly has not financed this lawsuit. (King Aff. at ~j 22; Kelly Aff. at ~( 12.) As a result, Defendant's Motion must be denied. IV. CONCL~JSION For the foregoing reasons, Plaintiffs respectfully request that this Court deny Defendant's Motion for Seminary Judgment.

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};10.'3013 I ci298813

Dated: April 10, 2013

Respectfully submitted,

~' Josep .Brunner, Esq.(No. 4605341) Vorys, Sater, Seymour and Pease LLP 301 East Fourth Street Suite 3500, Great American Tower Cincinnati, Ohio 45202 Phone: (513)723-4099 jmbrui~ner(a,vor s~om and David B. Geurtsen, Esq. Conboy, McKay, Bachman &Kendall, LLP 407 Sherman Street Watertown, NY 13601 315-788-S1Q0 315-788-3463 -fax db~eurtsen(a,cmbk.com Counselfor Plaintiffs

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