ALBANY – The allegation contained in a deposition that an attorney once misrepresented himself as the district attorney of Ulster County constitutes libel per se, an upstate appeals panel has determined.
A unanimous panel of the Appellate Division, Third Department, ruled that Kingston attorney Russell Schindler need not allege special damages for his claim to go forward.
“In our view, an allegation that an attorney impersonated a district attorney certainly suggests unprofessional conduct and imputes unfitness in the performance of the legal profession,” Justice Robert Rose (See Profile) wrote for the court in Schindler v. Mejias, 514189.
Quoting Allen v. CH Energy Group, 58 AD3d 1102, 1103 (2009), Rose continued that an allegation such as the one made against Schindler “would be taken very seriously, likely inviting disciplinary action and, when ‘tested against the understanding of the average [listener],’ it may be presumed to result in damage to plaintiff’s professional reputation.”
The court said that Acting Supreme Court Justice Michael Melkonian (See Profile) correctly ruled in December 2011 that the deposition statement at issue “constitutes libel per se.” The justice also properly denied the defendants’ motion for summary judgment, the panel ruled.
Schindler filed his defamation suit based on statements made by Hector Mejias Jr., a kennel attendant at the Ulster County Society for the Prevention of Cruelty to Animals, in a deposition in support of a criminal action that the Ulster County SPCA brought against Jody Fabrikant.
Schindler defended Fabrikant against charges that she abused and neglected more than a dozen of her dogs that were seized by the SPCA in 2002.
According to Schindler’s brief before the Third Department, Schindler and Fabrikant appeared at the SPCA kennel one night in 2002 to regain possession of a Rottweiler that was owned by Fabrikant but had been confiscated by the SPCA. Schindler said a local justice had authoritized the release of the animal to Fabrikant.
SPCA officials said the kennel was closed to the public when Schindler and Fabrikant appeared and that Mejias dialed “911″ to local police to complain that Schindler and Fabricant were at the facility, demanding to get the dog.
According to the deposition later filed by Mejias, Schindler told him, “I am Donald Williams the District Attorney and you can speak to the ADA who I am dialing now.”
Schindler denied making the statement.
In support of his contention, Schindler cited the transcript of the 911 call placed by Mejias in which the attendant referred three times to Fabrikant and “her attorney” as being there demanding release of the Rottweiler. Mejias did not mention Schindler portraying himself as Williams in the call.
Also, Schindler said Mejias acknowledged in a conversation surreptitiously taped by Fabrikant and a friend months later that Schindler had not actually identified himself as the district attorney and that Mejias was pressured into making the charge in his sworn deposition by his bosses at the Ulster County SPCA.
Schindler argued that the SPCA was aggravated by his representation of Fabrikant and was hoping to have him removed from the Fabrikant case by creating an alleged conflict by contending that he had misidentified himself as the district attorney.
Schindler’s subsequent defamation action named Mejias and two SPCA officials, executive director Christine French and operations manager William DeRidder.
The SPCA’s court papers referred to Fabrikant as an “animal hoarder” who kept dogs in “deplorable” and “inhumane” conditions.
She countered that she took fastidious care of her animals and that the SPCA was complicit in a scheme to remove several unique Basenji-Great Pyrenees mix dogs from her and to have them spayed or neutered against her wishes.
The SPCA was represented by Sue H.R. Adler of Young, Sommer, Ward, Ritzenberg, Baker & Moore of Albany.
Schindler said he is eager for the libel case to finally be headed to trial. “I am certainly pleased that they affirmed the denial of summary judgment,” he said in an interview Friday. “The ruling certainly stands for the proposition that if an attorney falsely represents himself to be a public official, that that is a serious matter.”
The libel claim was tied up in a federal action that Fabrikant and Schindler brought against the SPCA that also included her allegations of malicious prosecution and due process violation claims.
All criminal counts filed against Fabrikant relating to her treatment of animals were ultimately dismissed, Schindler said.
@|Joel Stashenko can be contacted at firstname.lastname@example.org.