Preview
FILED: KINGS COUNTY CLERK 01/24/2024 11:17 AM INDEX NO. 525698/2021
NYSCEF DOC. NO. 58 RECEIVED NYSCEF: 01/24/2024
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
SEAN DUGAN, REPLY AFFIRMATION
Plaintiff, Index No.: 525698/2021
-against-
ANTHONY BERINI,
Defendant.
Daniel S. Szalkiewicz, an attorney duly admitted to practice before the courts of the State
of New York, hereby affirms, under the penalties of perjury, as follows:
1. I am a member of DANIEL SZALKIEWICZ & ASSOCIATES, P.C., attorneys
for Plaintiff SEAN DUGAN (“Dugan” or “Plaintiff”). I am fully familiar with the facts and
circumstances of this matter from my firm’s file kept in the ordinary course of business and from
information provided by our client.
2. I submit this reply affirmation in further support of Plaintiff’s motion which seeks
(1) dismissal of the sole counterclaim of Anthony Berini (“Defendant” or “Berini”); (2) the
ability to amend Plaintiff’s Complaint; and (3) such other further and different relief as this
Court may deem just and proper.
3. Notably, in his opposition papers, Defendant does not deny the following:
a. Berini created an imposter account pretending to be Plaintiff that he used to
make vile and racist comments on the internet, calling students at Adelphi
University “colored people” and “y’all” and suggesting that if Black people
had issues with Adelphi University they should “just move[.]” (Answer, ¶48)
b. Berini posted all of the defamatory statements on an account he created to
impersonate Mr. Dugan. In fact, the handle of the Instagram account he used
was “seanduganadelphi[.]”
c. Defendant used his Instagram account to harass and bully third parties
(Affirmation ¶¶47-53)
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d. The police informed Berini that the statements were false, directed him to
remove the postings, and yet he still chose to repost them knowing the content
had no basis in fact.
e. Berini faces no prejudice by the filing of the proposed amended complaint.
4. Based on the foregoing, and as stated below, Defendant’s counterclaim should be
dismissed in its entirety and Plaintiff should be permitted to amend his complaint.
REPLY TO DEFENDANT’S ASSERTION THAT RACIST IMPERSONATION
STATEMENTS ARE A MATTER OF PUBLIC INTEREST OR CONCERN
5. Defendant ignores the documentary evidence and argument that his conduct in
creating the imposter account is not a matter of public interest or concern under Civil Rights Law
§76-a.
A. The Motion Contains Factual Allegations Demonstrating Not Only Malice, but that
the Counterclaim Must Fail
6. Plaintiff’s motion is supported by factual allegations of malice. Mr. Dugan’s
affidavit specifically “adopt[s] and incorporate [s] by reference the factual allegations and
assertions made by my attorneys in their annexed affirmation into my affidavit” (Dugan Aff. ¶3).
7. Mr. Dugan’s motion is completely the opposite of Defendant’s opposition, which
contains no sworn testimony by Defendant and merely speculates as to the lack of malice and
public interest involved.
8. Initially, Defendant fails to show how his actions can be considered “lawful
conduct in furtherance of the existence of the constitution of free speech in connection with an
issue of public interest.” In his counterclaim, Defendant brazenly admits that he changed the
name of his account “to @seanduganadelphi and added a picture of Dugan on the account”
(Counterclaim ¶48).
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9. New York Penal Law, § 190.25, criminal impersonation in the second degree,
makes it a crime to “[i]mpersonate[] another and do[]an act in such assumed character with
intent to obtain a benefit or to injure or defraud another” (Penal Law § 190.25 (Consol., Lexis
Advance through 2023 released Chapters 1-774). The law also makes it illegal to
[i]Impersonate[] another by communication by internet website or electronic means with intent
to obtain a benefit or injure or defraud another” (Id.).
10. All the messages were posted on an account impersonating Mr. Dugan.
Defendant’s actions cannot be considered lawful, and New York’s anti-SLAPP law does not
protect his illegal activities.
11. Second, Defendant’s answer and counterclaim should reaffirm Judge
Rothenberg’s decision. While Defendant correctly points out that Judge Rothenberg found
“Defendant’s alleged activity would not fall within the protections of the First Amendment,
since the First Amendment protects the right to criticize another person, but it does not permit
anyone to give an intentionally false impression that the source of the message is that other
person[.]” Berini has conceded that he created the impersonation account and posted the
defamatory statements using Mr. Dugan’s name. Defendant’s conduct is no longer “alleged
activity” but proven activity and therefore his conduct is not protected.
12. The same applies to the conversations with the police, as Defendant admits in his
counterclaim that “[o]n that same day of June 8, 2021, after this conversation with the detectives,
Berini deleted the posts that contained the screenshots of the Jester’s accusations against Dugan.”
While his statement is technically inaccurate as he did not delete the posts on June 8, 2021, as
seen in the Affidavit of Patrick Dugan, Berini’s statement is still notable as yet another
admission of his responsibility for the account and posts.
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13. Third, Berini’s statements and the conversation were not of “public interest.”
Dugan is a private person. Defendant attempts to argue that the private conversation between
two parties of fabricated conduct that was alleged to have taken place in a private chat room that
had nothing to do with Adelphi is somehow a matter of public concern “within the Adelphi
University Community.” Defendant is unable to show how the statements “He harassed me and
my female friends…Yes…He threatened to fix…Dox…My friend…He threatens to call my
parents…I have his dick picture…Because he’s disgusting…He send it to a group with 14 year
olds…He used to be my friend until he started talking behind my back…Because I said I was
going to tell Adelphi” are a matter of public concern on a public issue (see Exhibit 3).
14. Setting aside the fact there is no truth to any of the statements, is it a matter of
public concern that Plaintiff supposedly threatened to call Jester’s parents? That Jester thinks
Plaintiff is disgusting? Perhaps that Jester allegedly had Plaintiff’s ‘dick pic’ or was talking
behind the person’s back? The statements posted by Defendant, taken as a whole, are not a good
faith effort to warn others of “alleged sexual misconduct towards minors” but rather is the
textbook definition of “mere gossip and prurient interest[.]”
15. As the First Department has held “[w]hen determining whether content is within
'the sphere of legitimate public concern, allegedly defamatory statements can only be viewed in
the context of the writing as a whole' and '[c]ourts must examine [the] content, form, and context'
of the statements. Statements falling 'into the realm of ‘mere gossip and prurient interest' are not
matters of public concern nor are 'publications directed only to a limited, private audience'”
(Aristocrat Plastic Surgery, P.C. v Silva, 206 AD3d 26, 30 [1st Dept 2022][ citations omitted]).
In both Ashkenazy v Gindi, (2022 NY Slip Op 32261[U], *131 [Sup Ct, NY County 2022]) and
Sharp v Bar Fluid LLC, (2023 NY Slip Op 33786[U], *2 [Sup Ct, NY County 2023]) the
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Supreme Court discussed how private issues relating to private individuals, such as conduct that
takes place in locations “public patronage of which is voluntary” do not fall under anti-SLAPP.
In Ashkenazy, the Supreme Court specifically noted that “to be a ‘public controversy . . . the
subject matter must be more than simply newsworthy . . . it must be a real dispute, the outcome
of which affects the general public or some segment of it in an appreciable way.”
16. The claims in this matter are not part “of any larger controversy that affects the
general public or some segment of it in an appreciable way” and “is no more than a private
matter of public concern merely to gossips, is not a public controversy requiring a limited-
purpose public-figure analysis” (Id.). The anti-SLAPP claim must fail.
17. Finally, Plaintiff has demonstrated that the statements were made with malice as
the evidence shows Berini reposted the statements even after he was made aware of their falsity
by the NYPD.
18. As detailed in the annexed affidavit of Patrick Dugan, the detective who met with
Berini confirmed that, even after her conversation with him about his impersonation account, he
had not “taken it down yet or deleted those images” (Dugan Affidavit, ¶11). More so, on or
about July 4, 2021, the detective confirmed that Berini’s account was, indeed, “back up” (Dugan
Affidavit, ¶12).
REPLY TO THE OPPOSITION TO PLAINTIFF’S REQUEST TO AMEND THE
COMPLAINT
19. Defendant’s opposition completely ignores the well settled caselaw that “leave to
amend a pleading should be freely given (see CPLR 3025[b]), provided that the amendment is
not palpably insufficient, does not prejudice or surprise the opposing party, and is not patently
devoid of merit” (Bhatara v Kolaj, ___AD3d___, 2023 NY Slip Op 06721, *1-2 [2023]).
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20. Defendant has failed to allege one iota of prejudice by the amendment to the
complaint. In fact, Defendant was made aware that Plaintiff intended to amend the complaint
should the parties not resolve the matter.
21. On January 6, 2023, Plaintiff filed the amended complaint in the form that was
attached to the March 16, 2022 cross motion and approved by Judge Rothenberg. Almost
immediately, Defendant objected and I agreed to withdraw the complaint and to file a new one
(Exhibit 1).
22. On March 16, 2023, I sent opposing counsel an email with a proposed amended
complaint and three exhibits. In the email, I wrote:
Mike and David,
I am attaching, pre-filing, the amended complaint for your review, together
with the exhibits. I do not want there to be any additional exhibits. The only
deviation from the underlying one is Exhibit 3. The reason this is included
is Judge Rothenberg wrote in her decision "Plaintiff’s opposition papers
also demonstrate that he has a defamation cause of action based on the
comments referring to Blacks as “colored people” and using stereotypical
African American dialect." The statements were originally contained in
Sean's Third Cause of Action. Once approved by you, I will upload the
document.
(Exhibit 2)
23. Defendant once again objected (Exhibit 3), and, for a second time, my client
capitulated to Defendant’s demands with the hopes of coming to a fair resolution to this matter.
On March 16, 2023, I sent opposing counsel the following email:
Mike,
I spoke with my client. As a sign of good faith, he has agreed to
temporarily not include the allegation of racism in his First Amended
Complaint. He is doing this with the understanding that we will be
engaging in good-faith settlement talks and that the allegation has severely
triggered your client. However, if we do not have an agreement, he
reserves all rights to file a motion for a second amended complaint and to
include the allegation. He is not waiving any future rights to the claim by
removing the two lines and the exhibit.
(Exhibit 4).
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24. As previously discussed, settlement conversations broke down, and Plaintiff is
now requesting the ability to amend the complaint.
25. Defendant concedes that context is relevant to whether a statement is actionable
as defamatory (Opposition, p. 5) and it is especially relevant here, where Defendant’s attorney is
attempting to portray Defendant’s Instagram account as a well-meaning news source,
conveniently disregarding other content on the account which demonstrates that Defendant used
it to harass, demean, and intimidate third parties.
26. Also relevant, contextually, are Defendant’s one-sided and bizarrely
confrontational communications with Plaintiff prior to his public defamation of him. Similarly,
information about Defendant’s ejection from the GAMES Club in the days after the January 6,
2021 Capitol Attack is relevant to the timing of Defendant’s harassment of Plaintiff, a GAMES
Club member, shortly thereafter.
27. Given Defendant has been on notice of his conduct and Plaintiff’s claim from at a
minimum March 16, 2023, he faces no prejudice and the complaint should be amended.
WHEREFORE, it is respectfully requested that Plaintiff’s request be granted in its
entirety, together with such other and further relief which this Court deems just and proper.
Dated: January 24, 2024
New York, New York
_________________________
Daniel S. Szalkiewicz, Esq.
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Preview
FILED: KINGS COUNTY CLERK 01/24/2024 11:17 AM INDEX NO. 525698/2021 NYSCEF DOC. NO. 58 RECEIVED NYSCEF: 01/24/2024 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS SEAN DUGAN, REPLY AFFIRMATION Plaintiff, Index No.: 525698/2021 -against- ANTHONY BERINI, Defendant. Daniel S. Szalkiewicz, an attorney duly admitted to practice before the courts of the State of New York, hereby affirms, under the penalties of perjury, as follows: 1. I am a member of DANIEL SZALKIEWICZ & ASSOCIATES, P.C., attorneys for Plaintiff SEAN DUGAN (“Dugan” or “Plaintiff”). I am fully familiar with the facts and circumstances of this matter from my firm’s file kept in the ordinary course of business and from information provided by our client. 2. I submit this reply affirmation in further support of Plaintiff’s motion which seeks (1) dismissal of the sole counterclaim of Anthony Berini (“Defendant” or “Berini”); (2) the ability to amend Plaintiff’s Complaint; and (3) such other further and different relief as this Court may deem just and proper. 3. Notably, in his opposition papers, Defendant does not deny the following: a. Berini created an imposter account pretending to be Plaintiff that he used to make vile and racist comments on the internet, calling students at Adelphi University “colored people” and “y’all” and suggesting that if Black people had issues with Adelphi University they should “just move[.]” (Answer, ¶48) b. Berini posted all of the defamatory statements on an account he created to impersonate Mr. Dugan. In fact, the handle of the Instagram account he used was “seanduganadelphi[.]” c. Defendant used his Instagram account to harass and bully third parties (Affirmation ¶¶47-53) 1 1 of 7 FILED: KINGS COUNTY CLERK 01/24/2024 11:17 AM INDEX NO. 525698/2021 NYSCEF DOC. NO. 58 RECEIVED NYSCEF: 01/24/2024 d. The police informed Berini that the statements were false, directed him to remove the postings, and yet he still chose to repost them knowing the content had no basis in fact. e. Berini faces no prejudice by the filing of the proposed amended complaint. 4. Based on the foregoing, and as stated below, Defendant’s counterclaim should be dismissed in its entirety and Plaintiff should be permitted to amend his complaint. REPLY TO DEFENDANT’S ASSERTION THAT RACIST IMPERSONATION STATEMENTS ARE A MATTER OF PUBLIC INTEREST OR CONCERN 5. Defendant ignores the documentary evidence and argument that his conduct in creating the imposter account is not a matter of public interest or concern under Civil Rights Law §76-a. A. The Motion Contains Factual Allegations Demonstrating Not Only Malice, but that the Counterclaim Must Fail 6. Plaintiff’s motion is supported by factual allegations of malice. Mr. Dugan’s affidavit specifically “adopt[s] and incorporate [s] by reference the factual allegations and assertions made by my attorneys in their annexed affirmation into my affidavit” (Dugan Aff. ¶3). 7. Mr. Dugan’s motion is completely the opposite of Defendant’s opposition, which contains no sworn testimony by Defendant and merely speculates as to the lack of malice and public interest involved. 8. Initially, Defendant fails to show how his actions can be considered “lawful conduct in furtherance of the existence of the constitution of free speech in connection with an issue of public interest.” In his counterclaim, Defendant brazenly admits that he changed the name of his account “to @seanduganadelphi and added a picture of Dugan on the account” (Counterclaim ¶48). 2 2 of 7 FILED: KINGS COUNTY CLERK 01/24/2024 11:17 AM INDEX NO. 525698/2021 NYSCEF DOC. NO. 58 RECEIVED NYSCEF: 01/24/2024 9. New York Penal Law, § 190.25, criminal impersonation in the second degree, makes it a crime to “[i]mpersonate[] another and do[]an act in such assumed character with intent to obtain a benefit or to injure or defraud another” (Penal Law § 190.25 (Consol., Lexis Advance through 2023 released Chapters 1-774). The law also makes it illegal to [i]Impersonate[] another by communication by internet website or electronic means with intent to obtain a benefit or injure or defraud another” (Id.). 10. All the messages were posted on an account impersonating Mr. Dugan. Defendant’s actions cannot be considered lawful, and New York’s anti-SLAPP law does not protect his illegal activities. 11. Second, Defendant’s answer and counterclaim should reaffirm Judge Rothenberg’s decision. While Defendant correctly points out that Judge Rothenberg found “Defendant’s alleged activity would not fall within the protections of the First Amendment, since the First Amendment protects the right to criticize another person, but it does not permit anyone to give an intentionally false impression that the source of the message is that other person[.]” Berini has conceded that he created the impersonation account and posted the defamatory statements using Mr. Dugan’s name. Defendant’s conduct is no longer “alleged activity” but proven activity and therefore his conduct is not protected. 12. The same applies to the conversations with the police, as Defendant admits in his counterclaim that “[o]n that same day of June 8, 2021, after this conversation with the detectives, Berini deleted the posts that contained the screenshots of the Jester’s accusations against Dugan.” While his statement is technically inaccurate as he did not delete the posts on June 8, 2021, as seen in the Affidavit of Patrick Dugan, Berini’s statement is still notable as yet another admission of his responsibility for the account and posts. 3 3 of 7 FILED: KINGS COUNTY CLERK 01/24/2024 11:17 AM INDEX NO. 525698/2021 NYSCEF DOC. NO. 58 RECEIVED NYSCEF: 01/24/2024 13. Third, Berini’s statements and the conversation were not of “public interest.” Dugan is a private person. Defendant attempts to argue that the private conversation between two parties of fabricated conduct that was alleged to have taken place in a private chat room that had nothing to do with Adelphi is somehow a matter of public concern “within the Adelphi University Community.” Defendant is unable to show how the statements “He harassed me and my female friends…Yes…He threatened to fix…Dox…My friend…He threatens to call my parents…I have his dick picture…Because he’s disgusting…He send it to a group with 14 year olds…He used to be my friend until he started talking behind my back…Because I said I was going to tell Adelphi” are a matter of public concern on a public issue (see Exhibit 3). 14. Setting aside the fact there is no truth to any of the statements, is it a matter of public concern that Plaintiff supposedly threatened to call Jester’s parents? That Jester thinks Plaintiff is disgusting? Perhaps that Jester allegedly had Plaintiff’s ‘dick pic’ or was talking behind the person’s back? The statements posted by Defendant, taken as a whole, are not a good faith effort to warn others of “alleged sexual misconduct towards minors” but rather is the textbook definition of “mere gossip and prurient interest[.]” 15. As the First Department has held “[w]hen determining whether content is within 'the sphere of legitimate public concern, allegedly defamatory statements can only be viewed in the context of the writing as a whole' and '[c]ourts must examine [the] content, form, and context' of the statements. Statements falling 'into the realm of ‘mere gossip and prurient interest' are not matters of public concern nor are 'publications directed only to a limited, private audience'” (Aristocrat Plastic Surgery, P.C. v Silva, 206 AD3d 26, 30 [1st Dept 2022][ citations omitted]). In both Ashkenazy v Gindi, (2022 NY Slip Op 32261[U], *131 [Sup Ct, NY County 2022]) and Sharp v Bar Fluid LLC, (2023 NY Slip Op 33786[U], *2 [Sup Ct, NY County 2023]) the 4 4 of 7 FILED: KINGS COUNTY CLERK 01/24/2024 11:17 AM INDEX NO. 525698/2021 NYSCEF DOC. NO. 58 RECEIVED NYSCEF: 01/24/2024 Supreme Court discussed how private issues relating to private individuals, such as conduct that takes place in locations “public patronage of which is voluntary” do not fall under anti-SLAPP. In Ashkenazy, the Supreme Court specifically noted that “to be a ‘public controversy . . . the subject matter must be more than simply newsworthy . . . it must be a real dispute, the outcome of which affects the general public or some segment of it in an appreciable way.” 16. The claims in this matter are not part “of any larger controversy that affects the general public or some segment of it in an appreciable way” and “is no more than a private matter of public concern merely to gossips, is not a public controversy requiring a limited- purpose public-figure analysis” (Id.). The anti-SLAPP claim must fail. 17. Finally, Plaintiff has demonstrated that the statements were made with malice as the evidence shows Berini reposted the statements even after he was made aware of their falsity by the NYPD. 18. As detailed in the annexed affidavit of Patrick Dugan, the detective who met with Berini confirmed that, even after her conversation with him about his impersonation account, he had not “taken it down yet or deleted those images” (Dugan Affidavit, ¶11). More so, on or about July 4, 2021, the detective confirmed that Berini’s account was, indeed, “back up” (Dugan Affidavit, ¶12). REPLY TO THE OPPOSITION TO PLAINTIFF’S REQUEST TO AMEND THE COMPLAINT 19. Defendant’s opposition completely ignores the well settled caselaw that “leave to amend a pleading should be freely given (see CPLR 3025[b]), provided that the amendment is not palpably insufficient, does not prejudice or surprise the opposing party, and is not patently devoid of merit” (Bhatara v Kolaj, ___AD3d___, 2023 NY Slip Op 06721, *1-2 [2023]). 5 5 of 7 FILED: KINGS COUNTY CLERK 01/24/2024 11:17 AM INDEX NO. 525698/2021 NYSCEF DOC. NO. 58 RECEIVED NYSCEF: 01/24/2024 20. Defendant has failed to allege one iota of prejudice by the amendment to the complaint. In fact, Defendant was made aware that Plaintiff intended to amend the complaint should the parties not resolve the matter. 21. On January 6, 2023, Plaintiff filed the amended complaint in the form that was attached to the March 16, 2022 cross motion and approved by Judge Rothenberg. Almost immediately, Defendant objected and I agreed to withdraw the complaint and to file a new one (Exhibit 1). 22. On March 16, 2023, I sent opposing counsel an email with a proposed amended complaint and three exhibits. In the email, I wrote: Mike and David, I am attaching, pre-filing, the amended complaint for your review, together with the exhibits. I do not want there to be any additional exhibits. The only deviation from the underlying one is Exhibit 3. The reason this is included is Judge Rothenberg wrote in her decision "Plaintiff’s opposition papers also demonstrate that he has a defamation cause of action based on the comments referring to Blacks as “colored people” and using stereotypical African American dialect." The statements were originally contained in Sean's Third Cause of Action. Once approved by you, I will upload the document. (Exhibit 2) 23. Defendant once again objected (Exhibit 3), and, for a second time, my client capitulated to Defendant’s demands with the hopes of coming to a fair resolution to this matter. On March 16, 2023, I sent opposing counsel the following email: Mike, I spoke with my client. As a sign of good faith, he has agreed to temporarily not include the allegation of racism in his First Amended Complaint. He is doing this with the understanding that we will be engaging in good-faith settlement talks and that the allegation has severely triggered your client. However, if we do not have an agreement, he reserves all rights to file a motion for a second amended complaint and to include the allegation. He is not waiving any future rights to the claim by removing the two lines and the exhibit. (Exhibit 4). 6 6 of 7 FILED: KINGS COUNTY CLERK 01/24/2024 11:17 AM INDEX NO. 525698/2021 NYSCEF DOC. NO. 58 RECEIVED NYSCEF: 01/24/2024 24. As previously discussed, settlement conversations broke down, and Plaintiff is now requesting the ability to amend the complaint. 25. Defendant concedes that context is relevant to whether a statement is actionable as defamatory (Opposition, p. 5) and it is especially relevant here, where Defendant’s attorney is attempting to portray Defendant’s Instagram account as a well-meaning news source, conveniently disregarding other content on the account which demonstrates that Defendant used it to harass, demean, and intimidate third parties. 26. Also relevant, contextually, are Defendant’s one-sided and bizarrely confrontational communications with Plaintiff prior to his public defamation of him. Similarly, information about Defendant’s ejection from the GAMES Club in the days after the January 6, 2021 Capitol Attack is relevant to the timing of Defendant’s harassment of Plaintiff, a GAMES Club member, shortly thereafter. 27. Given Defendant has been on notice of his conduct and Plaintiff’s claim from at a minimum March 16, 2023, he faces no prejudice and the complaint should be amended. WHEREFORE, it is respectfully requested that Plaintiff’s request be granted in its entirety, together with such other and further relief which this Court deems just and proper. Dated: January 24, 2024 New York, New York _________________________ Daniel S. Szalkiewicz, Esq. 7 7 of 7