A defamation suit filed by Putnam County District Attorney Adam Levy against the county sheriff who claimed Levy is trying to protect his one-time personal trainer from child rape charges can go forward, a Putnam judge has ruled.
Supreme Court Justice Lewis Lubell (See Profile) ruled on Dec. 19 in Levy v. Smith, 2019/13, that Sheriff Donald Smith is not protected from the defamation suit by absolute immunity, though he did dismiss parts of the suit for other reasons.
The dispute between the two men centers on a rape case against Alexandru Hossu, an immigrant from Romania who worked as Levy’s personal trainer and whom Levy has described as a personal friend. Hossu is charged with raping a 13-year-old girl in 2010.
On March 20, 2013, following Hossu’s arrest, Smith issued a news release about the arrest that gave Hossu’s address as Levy’s address.
The next day, Levy, the son of television’s “Judge Judy,” Judith Sheindlin, issued a news release saying Hossu did not live with him as Smith had claimed. He also said he had immediately recused himself from the case because of his personal connection with Hossu.
Later that day, Smith issued another news release in which he said that it was an assistant district attorney from Levy’s office, not Levy himself, who called attention to the relationship between Levy and Hossu while Hossu was being investigated. According to that prosecutor, Smith said, Hossu did live with Levy. Smith went on to say that even after the conflict was pointed out, Levy continued to interfere in the investigation in order to protect his friend.
Levy sued Smith for defamation in August.
Smith moved to dismiss the case, arguing that, as sheriff, he enjoys absolute privilege protecting him from defamation claims.
Lubell, however, found that absolute privilege would only apply to statements Smith made as part of his duties as a public official, which Smith had not shown.
“Notably, Smith’s only support in this regard is his reference to various paragraphs in the complaint which simply recount his alleged actions,” the judge wrote. “They do not provide authoritative support for the proposition that the issuance of ‘news releases’ and the conducting of interviews with the press fall within the ambit of the responsibilities and the performance of duties of a county sheriff.”
Even if news releases were part of a sheriff’s duties, Lubell said, Smith had not established that “mere opinion” was appropriate for such releases.
Smith argued that the news release was a response to a “direct attack” on his office by Levy earlier that day. Lubell rejected that argument, saying the release went “well beyond what can arguably be said to be a proper response” to Levy’s statements.
Smith had also moved to strike certain allegations in the complaint relating to his abilities as an investigator as “scandalous or prejudicial.” Lubell postponed ruling on that issue at least until a preliminary conference in the case scheduled for Feb. 10.
Lubell did strike allegations related to media reports about Smith’s statements. Those reports, the judge said, were either simply reproductions of Smith’s news release, or they were statements that could not be attributed directly to Smith.
Finally, the judge dismissed the second of two causes of action, saying that two separate causes could not be based on the same allegedly defamatory statements.
“In rendering a decision at this early stage of the case, Justice Lubell was forced to accept the allegations in the complaint as true,” said Adam Kleinberg, a partner at Sokoloff Stern, who represents Smith. “Even in doing so, the court dismissed part of Mr. Levy’s case. We look forward to having the remainder of Mr. Levy’s case dismissed in the months that follow. Truth is an absolute defense to a claim of defamation.”
Levy is represented by Michael Sussman of Sussman & Watkins, who could not be reached.
On Thursday, Levy touted Lubell’s decision in a news release attacking Sam Oliverio, Putnam County’s only Democratic legislator, who unsuccessfully urged the legislature to investigate Levy last month and more recently called for Levy to resign.
“The only reason this continues to be a political issue, and continues to be in the press, is because of the various actors in Putnam County politics who insist on making it so,” Levy said in the release. “Mr. Oliverio has made no secret of his intention to consider a run for County Executive, and has openly flaunted his new political allegiances. I would question whether his calls for my resignation are truly motivated by his concern for the people of Putnam.”
On top of the Hossu case, Levy is facing an investigation by police and the state attorney general for his prosecution of former Democratic county sheriff candidate Andrew DeStefano in 2009, as reported in December by The Journal News. Investigators are looking at whether Levy prosecuted DeStefano for filing false nominating petitions while ignoring reports of the same conduct about his Republican opponent, James Borkowski. It was that investigation that prompted Oliverio to call for Levy to resign.
@|Brendan Pierson can be contacted at email@example.com.