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STATE OF NEW YORK SUPREME COURT

COUNTY OF JEFFERSON

GARY KING, HARVEY WHITE,DONNIE MASON, MARTY MASON,PAUL MASON,MARLENE BURTON, DANIEL BURTON AND FRANK GIAQUINTO, Plaintiffs, ~~ KATHRYN HLUDZENSKI,RICHARD C. WILEY,SR. AND JOHN DOES, 1-10, Defendants.

Index No. 2012-1654

REPLY MEMORANDUM

BOND,SCHOENECK &KING,PLLC Attorneysfog Defendant Kathryn Hludzenski Office and P.O. Address One Lincoln Center Syracuse, New York 13202-1355 Telephone: (315)218-8000

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TABLE OF CONTENTS Page PRELIMINARY STATEMENT .....................................................................................................1 DISCUSSION ..................................................................................................................................1 THE STATEMENTS ALLEGED IN PLAINTIFFS' COMPLAINT ARE NOT DEFAMATORY BECAUSE THEY ARE EITHER FACTUALLY TRUE OR ARE THE OPINION OF MS. HLUDZENSKI, AND DISCOVERY IS UNNECESSARY ................................................................................................................1 CONCLUSION................................................................................................................................8

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PRELIMINARY STATEMENT This reply memorandum is submitted in further support of Ms. Hludzenski's motion for summary judgment. Plaintiffs' opposition to Ms. Hludzenski's motion centers on the purported need for discovery. Plaintiffs have failed to demonstrate what discovery is needed for them to oppose this motion. This is a defamation action, and the text of the statements that Plaintiffs allege are defamatory in their complaint is not disputed. The grounds of the motion are that the allegedly defamatory statements are truthful or are protected opinion, and therefore are not defamatory as a matter of law. Plaintiffs have failed to show how the proposed discovery is related to the grounds on which summary judgment is sought. DISCUSSION THE STATEMENTS ALLEGED IN PLAINTIFFS' COMPLAINT ARE NOT DEFAMATORY BECAUSE THEY ARE EITHER FACTUALLY TRUE OR ARE THE OPINION OF MS. HLUDZENSKI,AND DISCOVERY IS UNNECESSARY As set forth in Defendant's moving papers, Plaintiffs have alleged that three particular statements posted on Ms. Hludzenski's blog are defamatory. The first statement, contained in paragraph 17 of Plaintiffs' complaint, only references Plaintiffs Donnie Mason and Marty Mason. The allegedly defamatory statement was: Marty Mason &Donny [sic] Mason Men of Substandard Values and Character ...have deployed a desperate attempt to strip citizens of their fundamental right to vote [and] this clearly demonstrates that these men are not fit to serve in any capacity in our local government. Complaint, 17. The grounds of the motion for summary judgment are undisputed: that Donnie and Marty Mason supported a petition and presented a resolution to the Town Board, which
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would require voters to present a New York State driver's license with a Cape Vincent address when voting in Town elections. It is also undisputed that at the time the resolution was presented, two Town Board members expressed their concern that the resolution was unlawful. Hludzenski Affidavit, Exhibit C; Plaintiffs' Memorandum, at 6. Most importantly, it is undisputed that the Voter ID Resolution was later rescinded after the Town received an opinion from the Town Attorney that the resolution was unlawful under both state and federal law. Hludzenski Affidavit, Exhibit E; Plaintiffs' Memorandum, at 6. These facts are not from Ms. Hludzenski's affidavit, but are from the minutes of the Town Board on which Donnie Mason and Marty Mason were members. Tellingly, neither Donnie nor Marty Mason has submitted an affidavit in opposition to this motion calling into question the factual basis for the August 12, 2011, blog post or any of the grounds in the motion. As Plaintiffs do not dispute the factual statements in question, discovery is not necessary. The second allegedly defamatory statement likewise relates to the illegal Vote ID Resolution supported by Plaintiffs and states: Recently three of our Town Board members passed a resolution. The basis for this resolution was a petition submitted to the Town Board by Harold Wiley. There were a little over 200 signatures on this petition. The petition was a request for the Town of Cape Vincent, Town Board to take action and impose requirements on Certain People to limit voter's rights in order to prevent what Harold Wiley called "Voter fraud." Some of the signatures on this petition may have been obtained fraudulently through misrepresentation however; I am certain that Edsall, Reinbeck and Binsley knew exactly what they were all signing.

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Additionally a few signatures belonged to a people that hold positions in our municipal government, signing this petition symbolizes a broken trust as well as poor judgment. Others that signed [the petition] were wind Leaseholders. Relatives of leaseholders and members of that "grass Roots" organization Voters for Wind. Harvey White, Gary King,Paul Mason, Karen Stumph, Beth White, Margaret Jollif Darrel Burton, Marlene Burton, to name a few. The group calling themselves Voters for Wind(VFW)are attempting to take the right away from people to be voters against wind. The VFW wants to deny citizens of our community a choice. Hludzenski Affidavit, Exhibit J; Complaint, 18. This statement, when read as a whole, is simply afollow-up on the events of the Town Board meeting of August 11, 2011, when the illegal Voter ID Resolution was adopted. It identifies certain of the Plaintiffs as members of the group known as Voters for Wind. Gary King, the only plaintiff who submitted an affidavit in opposition to this motion, does not deny that he is a member of VFW. In fact, Plaintiffs allege in their own Complaint that they are members of VFW. Complaint, ~j 11. The remainder of the factual statements in the allegedly defamatory statement are that the Town Board passed a resolution limiting voting rights and did so in response to the petition signed by the Plaintiffs. Again, Plaintiffs have not submitted any proof in opposition to this motion disputing these facts. Rather, they confirm the veracity of them.. Their proposed discovery is simply unrelated to the grounds of the motion. The third allegedly defamatory statement states: Harold C. Wiley Chairman Cape Vincent Democratic Party has teamed up with Gary King Chairman of a new gang (Citizens for Fair Government). Their next mission appears to be intimidation ox exacting retribution against those people that have either registered to vote in Cape Vincent or changed their primary

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residence.in order to vote in Cape Vincent. Harold Wiley and Gary King collected a hit list of names of each new voter in Cape Vincent and sent letters to the assessors ofthose communities where these residents own another home. Alerting the assessor that these people have registered to vote, the letter states that we provide you with this information in the event that there are implications for your community's implementation of the STAR program... However, it does not end there they have started a new letter writing campaign. They are writing letters to all the newly registered unethical and immoral voters in Cape Vincent asking them to consider voting for the very men that wanted to take their voting rights again. Does it get any nuttier than this? All three of these candidates Mason, Mason and White have conflicts of interest. Mason and Mason have proven that they are interested in personal financial gain over what is right for our community. Hludzenski Affidavit, Exhibit K; Complaint, ~ 19. The letter referenced in the blog post is attached to the Hludzenski Affidavit as Exhibit L. The statement that Mr. King sent a particular letter that has his name and title on it is not defamatory. It is unclear how Mr. King's reputation is harmed by a statement that he sent a letter supported by the group that he chairs, which says exactly what Mr. King now says this group believes in his affidavit: i.e., that Citizens for Fair Government believes that part-time residents of Cape Vincent are registering to vote in Cape Vincent as a part of an effort to receive a STAR exemption on their properties in Cape Vincent.' Accordingly, he could not be defamed by a statement that he sent such a letter.

Plaintiffs attempt to defeat summary judgment by submitting the affidavit of Mr. King, in which he admits that he letter purports to be from him, but denies that he drafted it or authorized it to be issued. Plaintiffs assert that discovery is therefore necessary. This argument is nonsensical and does not support Plaintiffs' purported need for discovery. Plaintiff Gary King
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The balance of the allegedly defamatory statement on its face is clearly protected opinion, and not an assertion of fact. For example,"Doesn't it get any nuttier than this?" is obviously not a factual assertion about Mr. King. In the context of a defamation action, a factual statement is one capable of being proven true or false. Gross v. New York Times Co., 82 N.Y.2d 146, 152-153 (1993). Likewise, the statement that the letter sought "retribution" is only her opinion based on the text of the letter. Hludzenski Affidavit, 30. Regardless of whether Mr. King actually sent the letter that had his name and title on it, Ms. Hludzenski's reporting of the letters and her opinion of the purpose behind the letters are not defamatory. In any event, as the Chairman of CFG,he is a public figure and he can hardly claim Ms. Hludzenski acted with malicious indifference to the truth by stating that Mr. King sent a letter making statements which CFG supports and that has his name on it. Plaintiffs attempt to create questions of fact on this motion by providing a dissertation on the reasons and intentions underlying the petition and Voter ID Resolution. This dissertation is completely irrelevant to the motion. What is relevant are the words of the statements and whether or not they are supported by undisputed facts, which they are. It is beyond dispute that the Voter ID Resolution was unlawful because it attempted to impose restrictions on voting in Town elections, which cannot be done by a Town Board. The Town Board rescinded the Resolution because it was unlawful and did so on the advice of the Town Attorney. Discovery is not needed to show these basic facts, none of which are in dispute. Plaintiffs attempt to avoid dismissal by asking for discovery related to "the resolution, petition, community opinion of Plaintiffs, determination of residency by other

cannot claim that he needs discovery to determine whether he actually sent the letter. Regardless, Ms. Hludzenski's statement that Mr. King sent the letter is not defamatory.
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municipalities, communications by Defendant and other third parties regarding Plaintiffs, and Defendant's state of mind and intention." Plaintiffs' Memorandum, at 9. None of the proposed discovery goes to the grounds for this motion: that the Plaintiffs did support a Voter ID law in Cape Vincent, and that the Town Board did rescind the Voter ID Resolution after the Town Attorney advised it was illegal. Furthermore, the discovery that Plaintiffs claim they need is within the particular knowledge of the Plaintiffs themselves, who admittedly are members of the group that "formulated a measure to drastically reduce or eliminate" perceived voter fraud in Cape Vincent. Plaintiffs' Memorandum, at 5. Plaintiffs' own opposition papers state that the efforts of CFG resulted in the petition and August 11, 2011, Resolution that formed the basis of the allegedly defamatory statements. Plaintiffs' Memorandum, at 5. Thus, their claimed need for discovery from the defendant regarding the resolution and petition is baseless. Likewise, Plaintiffs' demand for discovery into Ms. Hludzenski's state of mind and intent is irrelevant. On a motion for summary judgment, a plaintiff must present evidence with "convincing clarity" that "the statement at issue was published with actual malice, that is, with knowledge that it was false or with reckless disregard of whether it was false." Freeman v. Johnston, 84 N.Y.2d 52,57(1994). Ms. Hludzenski submitted a sworn affidavit, setting forth the factual basis for her statements and opinions, which is in the record before the Court. Plaintiffs' argument that the words used by Ms. Hludzenski were meant to imply a crime under the New York State Election Law is baseless and unsupported by the allegedly defamatory statements. See Hludzenski Affidavit, 30. The proposed discovery is nothing more than an effort to unnecessarily prolong this baseless defamation action, which was clearly brought to squelch debate on a matter of
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public importance. Plaintiffs want to exert pressure on defendants by imposing legal costs of conducting discovery. The law is clear that summary judgment is particularly appropriate in libel cases for these very reasons. Immuno AG v. Moor-Jankowski, 77 N.Y.2d 235, 256 (1991). Plaintiffs also argue in their opposition that Defendant is not entitled to her attorneys' fees because the statements in question do not directly relate to the BP resolution. This statement is disingenuous. Plaintiffs in their own Complaint allege that "the posts and comments ostensibly relate to Defendants' disagreement with Plaintiffs' position on the development of wind farms in Cape Vincent." Complaint, ~ 13. Plaintiffs further allege that they support the development of wind farms in Cape Vincent, are "pro-wind," and are involved in Voters for Wind and Citizens for Fair Government. Complaint, ~~( 9, 10, 11. The allegedly defamatory statements, when read as a whole, all relate the unlawful Voter ID Resolution to the controversy of wind farms in Cape Vincent. Plaintiffs' argument now that the statements have nothing to do with wind farms in Cape Vincent is incredulous. Plaintiffs do not need discovery to oppose this motion. The text of the allegedly defamatory statements is not in dispute, nor are the factual bases behind them. There is no need to undergo expensive discovery to come to the conclusion that the Court can come to on the already established record. Importantly, Plaintiffs do not oppose Defendant's motion for summary judgment dismissing Plaintiffs' intentional infliction of emotional distress and interference with business relations causes of action. As the motion with respect to those causes of action is unopposed, it should be granted.

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CONCLUSION For these reasons and the reasons set forth inDefendant's moving papers, Defendant's motion should be granted.

Dated: April 15, 2013

BOND,SCHOENECK &KING,PLLC By: ~ ,T ~ ~~

nat an B. Fellows, Esq. Suzanne M. Messer, Esq. Attorneysfog Defendant Kathryn Hlicdzenski Office and P.O. Address One Lincoln Center Syracuse, New York 13202-1355 Telephone: (315)218-8000

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