A New York state judge has dismissed a lawsuit in which Manhattan lawyer Kenechukwu Okoli accused Paul Hastings partner Allan Bloom of slander and assault following a contentious 2011 deposition that ended with Okoli slapping Bloom for accidentally spitting in his face.
State Supreme Court justice Cynthia Kern dismissed the suit, in which Okoli sought more than $1 million in damages, in a decision issued Wednesday. In her decision [PDF], Kern ruled that Okoli had failed to state a cause of action against Paul Hastings and Bloom—the cochair of the firm’s New York employment practice—for either the slander or assault charges.
As The Am Law Daily reported in June, Okoli and Bloom were on opposite sides of the heated deposition, which was related to a 2009 employee discrimination suit. Okoli claimed in his complaint that at one point during the deposition Bloom “began yelling at the top of his lungs and shaking his pointed index finger” near his face when “spittle from Bloom’s open mouth hit Okoli’s face.” Okoli claimed that he responded by slapping Bloom “to protect himself.”
In his suit, filed on May 8, Okoli accused both the firm and Bloom of assault and slander, with the latter allegation based on Okoli’s claim that Bloom had called him “uncivilized, ignorant, and incompetent” following the 2011 incident. Okoli further claimed that he feared Bloom might push him from the chair he was sitting in during the deposition based on Bloom’s supposedly violent finger-shaking and heated demeanor.
Paul Hastings, represented by firm partner Carla Walworth, and Bloom responded to Okoli’s suit in June with a motion to dismiss in which they labeled the complaint “unique and spurious.”
Kern said in her decision that “finger wagging and yelling is not enough to rise to the common-law assault standard” and that Okoli had not offered a specific reason for why he feared Bloom might push him from his chair. Furthermore, Kern wrote, Okoli’s claim based on Bloom’s spittle hitting him in the face was without merit given that both parties admit that action was accidental.
Meanwhile, Kern added that the Bloom comments at issue in the slander charge “are cloaked with immunity” because they came during a judicial proceeding and “were not so needlessly defamatory as to warrant the inference of express malice.”
Bloom did not respond to The Am Law Daily‘s request for comment, but firm spokesman Allan Whitescarver said in a statement: “We’re pleased with the decision by [Justice Kern] to dismiss the plaintiff’s complaint and are gratified to add to U.S. case law the precedent that ‘fear of spittle’ is not a cause of action.”
Okoli referred The Am Law Daily‘s request for comment to his attorney, Nicholas Penkovsky, who called the decision “unfortunate.”
“What my problem and my client’s problem was with the decision is it now cleary codifies uncivil behavior of a lawyer on a lawyer at a desposition. In that way, I think it’s entirely wrong,” Penkovsky says. He adds that he feels the court “grievously erred” in issuing the ruling, which he says his client is likely to appeal.
In recounting the events leading up to the 2011 incident and the lawsuit in her decision, Kern also noted that Okoli’s slap had an impact on subsequent proceedings in the employment suit that was the subject of the fractious deposition. Bloom requested after the incident that any further depositions in the case be held in the courthouse at Okoli’s expense. New York State Supreme Court justice Wayne Saitta ruled instead that all further depositions would be held at Paul Hastings’s offices and videotaped at Okoli’s expense. (Okoli’s appeal of that directive is pending.)