Posted on: Feb 3 2017
By Jason Grant | February 1, 2017 | New York Law Journal
Originally appeared in print as Panel Rejects Defamation Claims Filed in Bitter Business Dispute.
New York Yankee Mariano Rivera pitched a scoreless ninth inning against the Baltimore Orioles, Sunday July 29, 2007 at Camden Yards in Baltimore. The Yankees won 10-6..
An appeals court has tossed the defamation counterclaims of a lawyer and property manager who said it was a lie that she forbade a restaurant group from using Mariano Rivera’s name in advertising because that would attract “ghetto people from the Bronx.”
A unanimous panel of the Appellate Division, First Department, on Tuesday dismissed the counterclaims lodged by New York attorney Susanne Lieu against both the restaurant group, Manhattan Sports Restaurants of America and managing member, Keith Kantrowitz. Yankee legend Rivera was a part owner.
The panel wrote that there were “no facts alleged supporting a conclusion that the instant litigation is ‘a sham action brought solely to defame.'”
Justices David Friedman, Dianne Renwick, David Saxe and Judith Gische added that “plaintiff has diligently prosecuted its claims, inter alia, filing an amended complaint and vigorously opposing defendant’s prior motion to dismiss, both at the motion court and on appeal.” They also noted that several of the restaurant group’s claims survived an earlier attempt by Lieu to have the underlying suit dismissed, thereby “undercut[ting] defendant’s contention that this litigation is a sham.”
The panel’s decision, in Manhattan Sports Restaurants of America v. Lieu, 654076/13, reversed a November 2015 opinion by Manhattan Supreme Court Justice Jennifer Schecter.
In the meantime, the underlying lawsuit brought by Manhattan Sports Restaurants of America against Lieu plods on. No trial date has been set.
That suit, filed in 2013, is currently in depositions and has gotten “pretty personally vicious,” said the restaurant group’s attorney, David Jaroslawicz, on Wednesday. He noted that the lawsuit, in which the restaurant group accuses Lieu of driving its Second Avenue restaurant, Siro’s, out of business in 2013, is “proceeding at a glacial pace.”
According to the amended complaint in the underlying suit, Lieu violated state and city laws by “willfully refusing to have plaintiff operate a clubhouse [inside the Siro’s restaurant] using Mariano Rivera’s name to promote it because Mariano Rivera is of Hispanic heritage and defendant stated she did not want ‘ghetto people’ form the Bronx congregating in the bar and restaurant.”
The restaurant group, with its ties to Rivera, became tabloid fodder when the suit was filed in November 2013, according to Jaroslawicz.
The suit claims Lieu effectively harassed and hampered the success of Siro’s—a 20,000-square-foot restaurant that opened in 2012. The complaint specifically claims Lieu barged into the restaurant at random hours, bossed around employees and forbade the sports bar from showing sports on TVs because that would attract undesirable people of color.
She also told Kantrowitz that two African-American workers at the restaurant could not walk onto the building’s patio because “they did not fit in,” according to the suit. Additionally, management did not allow Indian or Asian cuisine “because having persons from a Third World country, the Indian sub-continent and Asia, would not fit in with defendant’s idea of what the building’s image should be like,” according to Jaroslawicz and the suit.
Moreover, Lieu is accused of trying to charge the restaurant group “absurd” prices for chilled water air conditioning, including bills of more than $50,000.
Lieu’s attorney, Andrew Levander of Dechert, has previously told the press that he believes the suit against his client is phony, and meant to disguise the restaurant failing on its own.
On Wednesday, Dechert partner, Kathleen Massey, noted that a 2014 order by the lower court dismissed the majority of the 11 claims brought against her client in an amended complaint, including allegations that Indian or Asian cuisine were not allowed.
Massey also said a co-manager denied he was restricted from using Rivera’s name on promotional materials.
“This case was commenced against an individual to blame her unfairly for the failure of Manhattan Sports Restaurants of America to operate a successful restaurant,” she added. “Discovery has confirmed that the claims against our client are baseless and that the allegations are contradicted by sworn statements by the other co-managing member of Manhattan Sports.”
Levander has charged more than $1.4 Million in fees so far, according to court records. Lieu is a managing director at the Manhattan real estate investment company Ruben Companies.
“It was frivolous to begin with and it reinforces my belief that every claim begets a counterclaim,” Jaroslawicz said of the counterclaims.
“I think the defense took the position that they were going to intimidate the plaintiff and [Kantrowitz] by suing him personally,” he added.
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