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| English: NYPD Police Commissioner Bernard Kerik speaking at a press conference concerning crime scene evidence collection from the WTC site. (Photo credit: Wikipedia) |
Attorney Joseph Tacopina's defamation lawsuit against Bernard Kerik's lawyer and a New York City newspaper has been dismissed by a federal judge.
Southern District Judge Paul Crotty said that the fair reporting privilege protected allegedly defamatory statements that Kerik attorney Timothy Parlatore made to the New York Daily News in 2014, and he dismissed claims against the newspaper for two articles published in October 2014.
The case was part of a long-running brawl between Kerik, the former New York City police commissioner and one-time nominee for Department of Homeland Security chief, and Tacopina, of Tacopina & Seigel, who represented Kerik on criminal charges in the Bronx nine years ago.
Kerik had filed an ethics complaint against Tacopina in 2013 and sued Tacopina the following year alleging a series of improper acts, including breach of fiduciary duty of an attorney toward a client.
Kerik claimed Tacopina led him to believe that, if he pleaded guilty to two state misdemeanors in 2006 in Bronx Supreme Court, he would not face further prosecution. But federal prosecutors proceeded with a separate investigation of Kerik, who was ultimately convicted of tax evasion in New Jersey federal court in 2009 and served three years in prison.
Kerik's lawsuit against Tacopina was dismissed by Southern District Judge John Koeltl in December (NYLJ, Dec. 4, 2014).
On Oct. 15, 2014, Parlatore filed suit against Tacopina in state court on behalf of a Jane Doe, a former Tacopina client who claimed Tacopina had committed malpractice in an unrelated civil action. The woman alleged Tacopina urged her to accept a low-ball settlement with an unnamed law firm where she once worked as an associate while failing to disclose he was of counsel at the firm.
Parlatore submitted an affidavit in the Doe case claiming Tacopina had come under "public scrutiny for his considerable unethical and dubious practices" including that he was "abusing" cocaine.
That same day, Oct. 15, the Daily News ran an article headlined "Lawsuit against Joe Tacopina seeks to freeze lawyer's assets as he closes deal to buy Italian soccer club Bologna."
The article reported that the complaint filed by Kerik had alleged Tacopina "abused painkillers and cocaine during his failed" defense of a woman convicted of murdering her husband, when, in fact, Kerik's complaint only mentioned "prescription pain medications."
Two days later, on Oct. 17, the Daily News ran another article saying "Judge orders celebrity attorney Joe Tacopina—now boss of second-division soccer team in Italy—to court," in the Doe case when in fact Tacopina's appearance was optional.
The article stated the judge required Tacopina to explain why he shouldn't be barred from selling assets until his legal dispute with Doe was resolved.
Tacopina's lawsuit, filed Oct. 20, named Parlatore for the Jane Doe affirmation and the Oct. 15 article, and it named the Daily News and reporter Michael O'Keeffe for the Oct. 15 and 17 articles. He said Parlatore and the newspaper gave the impression he was fleeing the United States to avoid creditors and he had abused drugs.
In dismissing the case Friday, Crotty cited New York Civil Rights Law §74, which bars civil actions based on "the publication of a fair and true report of any judicial proceeding."
"In certain circumstances, publication of legal documents that have not yet been filed may be protected by the fair reporting privilege," he said inTacopina v. O'Keeffe, 14 Civ. 8379. "New York courts have held that statements to the press regarding the litigation position a party intends to take are protected by New York Civil Rights Law §74, even where the documents containing the position have not yet been filed, so long as the party ultimately takes that position in the litigation."
Here, he said, there was no indication that the affirmation Parlatore gave O'Keeffe "was in any way different" from the one he ultimately filed in court.
"Nor is there any allegation that the Daily News reported on the Jane Doe affirmation before it was filed," he said. "In these circumstances, Parlatore's alleged conduct does not vitiate the fair reporting privilege."
Over Tacopina's argument to the contrary, the judge said the mistaken attribution to the Kerik complaint in the Oct. 15 article didn't matter because the result was the same.
"The court agrees," Crotty said. "Whether the allegation regarding cocaine appeared in the Kerik complaint or the Jane affirmation, nonetheless it was made in a publicly filed document."
The judge continued: "Moreover, reporting that allegations regarding prescription pain medication and cocaine were made in a single lawsuit by one former client does not 'suggest more serious conduct' than what actually occurred: those allegations came from two different lawsuits by two former clients."
Crotty went on to find that neither the Oct. 15 nor the Oct. 17 articles were defamatory.
Parlatore had moved against Tacopina and his attorney, for sanctions for bringing a frivolous lawsuit, but the judge declined.
"The lawsuit was not frivolous," Crotty said. "While the amended complaint is dismissed, it is not so lacking in merit as to warrant the imposition of sanctions."
Judd Burstein represented Tacopina. Burstein said he would appeal the decision. "I think the opinion makes it clear there was sort of a hit job on Tacopina," he said.
Matthew Leish assistant general counsel at the Daily News, represented the newspaper and O'Keeffe.
Parlatore represented himself.
"The Jane Doe case is still active; the restraining order [on assets] is still in place," said Parlatore, who said Tacopina "had filed counterclaims against her [Doe] based on the same ridiculous claims he made against me in this case."
As for the defamation claims, "I'm glad that the judge saw through it," Parlatore said.
copied from New York Law Journal and google news.......
Read more: http://www.newyorklawjournal.com/id=1202736658368/Defamation-Suit-Against-Kerik-Lawyer-and-Daily-News-Dismissed#ixzz3lXKCzHts
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