Application, Motion-Undefined in Shelly Studer v. Drn Counseling-Consulting Services, Lcsw, Pllc, Dominick Nicotera| Trellis.Law

On January 30, 2020 a Order was filed involving a dispute between Shelly Studer, and Dominick Nicotera, Drn Counseling-Consulting Services, Lcsw, Pllc, for Special Proceedings - Other (Civil Rights) in the District Court of Oneida County.

Preview
INDEX NO. EFCA2020-000333
(FILED: ONEIDA COUNTY CLERK 0472372024 12:40 PM
NYSCEF DOC. NO. 351 RECEIVED NYSCEF: 04/23/2024

STATE OF NEW YORK
SUPREME COURT ONEIDA COUNTY

SHELLY STUDER,

Plaintiff,
DECISION & ORDER
-vs-
Index No. EFCA2020-000333
DRN COUNSELING-CONSULTING
SERVICES, LCSW, PLLC and
DOMINICK NICOTERA,

Defendants.

Appearances:

Shelly Studer Saunders Kahler, LLP
By: Merritt S. Locke, Esq. & Elizabeth I. Gaffney; Esq.

DRN Counseling-Consulting Law Offices of Raymond Nicotera
Services, LCSW, PLLC By: Raymond Nicotera, Esq.

Dominick Nicotera Law Office of David A. Longeretta, PLLC
By: David A. Longeretta, Esq.

Papers Considered:'

Affirmation of Raymond V. Nicotera, Esq., dated April 14, 2024 [Dkt. No. 336] (hereinafter
“Nicotera Affirmation”)

Order to Show Cause, signed by Hon. Julie Grow Denton, JSC, dated April 15, 2024 [Dkt. No.
339] [Motion #12]
Affidavit of Dominick Nicotera, sworn to April 17, 2024 [Dkt. No. 341]

Letter from David A. Longeretta, Esq., dated April 17, 2024 [Dkt. No. 342]

' Noticeably absent from the list of documents to follow is the affirmation of Plaintiff's counsel in opposition, dated
April 18, 2024, with attached Exhibits A-C [Dkt. Nos. 343-346]. As explained within this Decision & Order, those
documents are being stricken from the record-at the request of counsel-for DRN-Counseling-Consulting Services;
LCSW, PLLC, and thus were not considered during the Court’s deliberations.

1 of 38
INDEX NO. EFCA2020-000333
FILED: ONEIDA COUNTY CLERK 04723/2024 12:40 PM
NYSCEF DOC. NO. 351 RECEIVED NYSCEF: 04/23/2024

Reply Affirmation of Raymond V. Nicotera, Esq., dated April 19, 2024 [Dkt. No. 348]
(hereinafter “Nicotera Reply Affirmation”)

Transcript of February 15, 2024 Appearance before Hon. Julie Grow Denton, JSC, certified
April 16, 2024 [Dkt. No. 349] (hereinafter “Transcript”)

Oral Argument held April 19, 2024?

HON. JULIE GROW DENTON, JSC:

Pending before the Court is a motion to recuse, brought by Defendant DRN Counseling-

Consulting Services, LCSW, PLLC (“DRN Counseling”) and joined by Defendant Dominick

Nicotera (collectively “Defendants”). The motion was brought by Order to Show Cause signed

on April 15,2024 [Dkt. No. 339] and is based upon several allegations that fall under these main

topics: (1) campaign contributions received by the undersigned’s campaign committee in 2022

from Plaintiffs counsel, Merritt S. Locke, Esq., and three of Attorney Locke’s partners at her

law firm, create an appearance of impropriety; (2) the Court has an implicit bias in favor of

Attorney Locke based not only upon the aforementioned campaign contributions, but also upon

the relationship between her and the Honorable Bernadette T. Clark, JSC (“Justice Clark”), who

made rulings characterized by Defendants as “favorable” (Nicotera Affirmation, J 6 [Dkt. No.

336]) to my husband and me involving a 2017 lawsuit where we were named defendants; (3) the

undersigned acted unfairly toward David A. Longeretta, Esq. at a February 15, 2024 court

appearance, where he represented both Defendants; and (4) a Court notice dated April 11, 2024

unfairly emboldened Plaintiff and Attorney Locke during a mediation session taking place the

same day. Before discussing the substance of these allegations, the Court first needs to address a

procedural argument raised in Attorney Nicotera’s reply affirmation.

? By-Court Notice-dated-April-15;2024-[Dkt-No:340];-and-at
the request of David-A-Longeretta; Esq: [Dkt-No-
338], Attorney Longeretta’s appearance was excused at oral argument. -

2 of 38
INDEX NO. EFCA2020-000333
FILED: ONEIDA COUNTY CLERK 04723/2024 12:40 PM
NYSCEF DOC. NO. 351 RECEIVED NYSCEF: 04/23/2024

When the Court signed the Order to Show Cause for this motion, it set Noon on April 18,

2024 as the deadline for answering papers. Attorney Locke did submit opposing papers on April

18, 2024, but at 12:25 p.m. Attorney Nicotera asks that these papers be stricken as untimely (see

Nicotera Reply Affirmation, {3 [Dkt. No. 348]). Typically, the Court would excuse this type of

tardiness, given that it was for a relatively short period of time. In this case however, in light of

an exchange between the Court and Attorney Nicotera at oral argument on this recusal motion,

the Court will strictly enforce the filing deadline.

At oral argument, Attorney Nicotera offered to submit two different documents to the

Court discussing 22 NYCRR Part 151 (with copies for Plaintiffs counsel), which articles were

not attached to his reply affirmation timely filed earlier in the day. Explaining its desire to apply

filing deadlines equally to both sides, the Court inquired as to how it could accept Attorney

Nicotera’s papers nearlysix hours after the 9:00 a.m. deadline for reply papers established in the

Order to Show Cause, while also considering his request to strike the papers of Plaintiffs

counsel on the basis that they were filed 25 minutes late. The Court suggested an alternative

whereby Attorney Nicotera would withdraw his request if Plaintiffs counsel would agree to the

Court accepting the articles. Attorney Nicotera instead withdrew his request for the Court to

receive the articles.

Consequently, the Court will strike the affirmation of Plaintiffs counsel with exhibits

[Dkt. Nos: 343-346] from the record. In doing so, all attorneys of record are hereby put on

jotice that going forward, ai filing deadline set by the Court in this matter will be strict}

nforced. Should an attorney need an extension, a letter application for permission for late filing

will need to be uploaded to NYSCEF with sufficient notice under the circumstances for the

Court to act on the request.

3 of 38
INDEX NO. EFCA2020-000333
NYSCEF DOC. NO. 351 RECEIVED NYSCEF: 04/23/2024

Legal Analysi

Defendants seek recusal pursuant to 22 NYCRR § 100.3(E)(1)(a)(i), which provides that

“[a] judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality

might reasonably be questioned, including but not limited. to instances where . . . the judge has a

personal bias or prejudice concerning a party ... .”? Attorney Nicotera acknowledged at oral

argument that the decision to recuse under these circumstances is discretionary (see also Cellino

Law, LLP v, Looney Injury Law PLLC, 222 AD3d 1337, 202 NYS3d 647, 649 [4" Dept. 2023];
Shuman v. Bower, 278 AD2d 860, 860 [4" Dept. 2000]).

I, Campaign Contribution:

The Court learned for the first time in the moving papers that Attorney Locke donated

$1,000.00 to the undersigned’s campaign committee in 2022, which is the year that I was elected

to the state Supreme Court (see Nicotera Affirmation, § 10 [Dkt. No. 336]). The Court also

learned for the first time that three other partners in Attorney Locke’s firm donated individually

in the amount of $1,000.00 each (see id. [Dkt. No. 336]). Attorney Locke acknowledged at oral

argument that these donations were in fact made. Defendants assert that “[t]he fact that Your

Honor received $4,000 in campaign contributions collectively from the partners in the firm

Saunders & Kahler, LLP barely a year prior to this case being transferred to Your Honor alone

raises the appearance of impropriety” (see id., 1 53 [Dkt. No. 336]).

3 The moving papers also cite to Judiciary Law § 14, which mandates recusal where a judge is a party to the
proceeding, has been the attorney or counsel to the proceeding, has an interest in the proceeding, or is related by
consanguinity or affinity to the controversy within the sixth degree (see Nicotera Affirmation, { 51 [Dkt. No. 336]).
None of those situations applies to the undersigned. The moving papers also cite to 22 NYCRR § 100.3(E)(1)(a)(ii),
which provides that a judge shall recuse themselves when they have personal knowledge of disputed evidentiary
facts about the proceeding (see id. [Dkt. No. 336]). Defendants do not allege such knowledge on the part of the
undersigned, and the undersigned represents that she has no such personal knowledge.

4 of 38
INDEX NO. EFCA2020-000333
NYSCEF DOC. NO. 351 RECEIVED NYSCEF: 04/23/2024

At the outset, the Court wishes to clarify that “Your Honor” did not receive $4,000.00 in

campaign contributions. The campaign committee (Committee to Elect Julie Grow Denton for

Supreme Court) received those contributions. “A judge or candidate for public election to

judicial office shall not personally solicit or accept campaign contributions, but may establish

committees of responsible persons to conduct campaigns for the candidate” (22 NYCRR §

100.5(A)(5)).
Moreover, “a judge need not disqualify in a case solely because the judge learns from a

party’s motion papers that some of the attorneys were contributors to the judge’s campaign”

(New York State Advisory Comm on Jud Ethics, Op 23-41). A judge is to consider various

factors as appropriate to determine whether “the specific circumstances might give rise to a

publicly perceived appearance of impartiality,” such that recusal subject to remittal would be

appropriate (id. [emphasis added] [internal quotation marks and citation omitted]).

A, Relative Size and Impact of ‘Individual Contribution

The state Advisory Committee on Judicial Ethics has identified relevant factors to include

the size of the contribution relative to contributions by other attorneys and whether the attorney’s

adversary is also listed as a contributor (see id.). Since the undersigned is to be shielded from

knowing the identity of contributors (see New York State Advisory Comm on Jud Ethics, Op 10-

135), the Court could not look at the campaign committee’s financial disclosure report to discern

this information. The Court therefore inquired of Attorney Nicotera at oral argument as to

whether he had knowledge of the same, since his papers were silent on the issue. As it turns out,

Attorney Nicotera did have knowledge. In particular, he knew that Attorney Longeretta (who

has represented Defendants jointly from the outset of this litigation in 2020 until Attorney

— ee

5 of 38
INDEX NO. EFCA2020-000333
NYSCEF DOC. NO. 351 RECEIVED NYSCEF: 04/23/2024

Nicotera’s formal representation of Defendant DRN Counseling began on April 11, 2024*)

appeared on the donor list as having made a contribution of a greater amount than Attorney

Locke, The Court did not ask, and Attorney Nicotera did not disclose, the amount of Attorney

Longeretta’s contribution, although Attorney Nicotera described the difference between the

contributions as “de minimus.” For purposes of this motion, the Court will consider the two

contributions to be equal, and thus neither attorney can be perceived as having greater favor than

the other.

Another consideration identified by the Appellate Division, First Department is the

relationship between a particular contribution and the total amount of campaign contributions

received by a campaign committee (see Anderson v. Belke, 80 AD3d 483, 483 [1% Dept. 2011]).

Again, because the Court cannot review the campaign committee’s financial disclosure report,

the Court inquired of Attorney Nicotera at oral argument whether he knew the ratio. By letter

dated April 19, 2024 [Dkt. No. 350], Attorney Nicotera represents the total amount of

contributions reflected on the report to be $87,150. As such, Attorney Locke’s contribution

made up 1.15% of the total received (as would Attorney Longeretta’s contribution), which hardly

has the look or feel of undue influence.

B. Whether the Contributions of Attorney Locke’s Law Partner:
Can Be Imputed to Attorney Locke

For the first time in reply papers, Attorney Nicotera points to 22 NYCRR § 151.1 (“Rule

151.1”) as grounds for reassignment of this case due to the collective campaign contributions by

Attorney Locke and her law partners (see Nicotera Reply Affirmation, J 8-9 [Dkt. No. 348]).

Attorney Nicotera also focused much attention on this Rule at oral argument. Although new

* The Court uses the term “formal representation” because Attorney Nicotera has served as corporate counsel to
——~—DRN Counseling and, since the undersigned’s involvement starting in August 2023, has attended most (if not-all)
court proceedings — to include status conferences with the attorneys of record.

6 of 38
INDEX NO. EFCA2020-000333
FILED: ONEIDA COUNTY CLERK 04723/2024 12:40 PM
NYSCEF DOC. NO. 351 RECEIVED NYSCEF: 04/23/2024

arguments are generally discouraged in reply papers, the Court will nevertheless address the

topic so as to dispel all suspicion.

Rule 151.1 provides that cases are not to be assigned to a judge if it gives rise toa

“campaign contribution conflict” (22 NYCRR § 151.1(A)(1)). A “campaign contribution

conflict” is defined relative to individual contributions and collective contributions. Defendants

assert that a collective campaign contribution conflict exists here. For collective contributions,

the Rule reads as follows:

For purposes of this Part, a campaign contribution conflict shall exist when
the sum of all contributions to a judge’s campaign for elective office... by
(a) an attorney appearing of record in a matter before such judge, and
attorneys appearing in the matter as co-counsel or special counsel to such
counsel of record, and (b) each such attorneys’ law firm or firms, and (c)
each client of each such attorney in the matter — totals $3,500.00 or more.

(22 NYCRR § 151.1(B)(2)). Reading the Rule literally, Plaintiff in this case now has two

attorneys of record (Attorney Locke and Elizabeth I. Gaffney, Esq.). No one has alleged that

Attorney Gaffney made a campaign contribution. Both attorneys practice with Saunders Kahler,

LLP, and no one has alleged that the law firm made a separate campaign contribution. Nor is

anyone alleging that Plaintiff herself made a campaign contribution. Under this reasoning,

Attorney Locke’s $1,000.00 campaign contribution does not exceed the threshold.

Attorney Nicotera asks the Court to interpret the Rule to mean that the campaign

contributions of Attorney Locke’s law firm partners can be imputed to her for purposes of

concluding that the $3,500.00 threshold has been exceeded. This interpretation however, runs

contrary to the interpretation used by the New York State Unified Court System. In a November

4, 2011 memorandum from then-Chief Administrative Judge Ann Pfau about administering Rule

151.1 (copy attached, but which is accessible through the nycourts.gov public website by

7 of 38
INDEX NO. EFCA2020-000333
NYSCEF DOC. NO. 351 RECEIVED NYSCEF: 04/23/2024

inserting “Part 151” in the home page search engine), an entire footnote is devoted to the topic of

imputed contributions:

Note that there are no imputed contributions under Part 151. Therefore, for
purposes of calculating the $2,500.00 threshold for an individual campaign
contribution conflict, an attorney’s contribution will not be imputed to the
attorney’s firm. Likewise, the contributions of multiple attorneys at a firm
not serving as counsel, co-counsel or special counsel will not be aggregated
and imputed to the firm. A corporate contribution will not be imputed to a
shareholder or officer. A personal contribution will not be imputed to any
other person or the contributor’s employer. For purposes of calculating the
$3,500 threshold for a collective campaign contribution conflict,
contributions from listed contributors will be aggregated, but contributions by
other persons and entities (e.g. family members, co-workers, employers,
subsidiaries, etc.) will not be imputed and aggregated [emphasis in first
sentence added].

Based on this guidance, the Court concludes that it is to look only to the aggregate of the

contributions of the attorneys of record, their law firm(s), and their client(s) when determining

whether a campaign contribution conflict exists. Thus, the contributions of Attorney Locke’s

law firm partners would not factor into the application of Rule 151.1.

At oral argument, Attorney Nicotera questioned the process by which this case was

transferred to the undersigned in August 2023. Previously, Justice Clark was the assigned judge.

She recused herself upon motion of the Defendants [Dkt. No. 155]. Attorney Nicotera pointed

out that Justice Clark issued her recusal letter on August 23, 2023, and the next day a Court

Notice advised the parties that the case had been reassigned. He questioned how it was possible

for a Rule 151.1 conflict check to have been performed in such a short time. As stated at oral

argument, the undersigned has no involvement in the reassignment of cases. To the best of my

knowledge, transfer orders are submitted to the office of the District Administrative Judge

(DAJ”) for assignment of a new judge. The undersigned can only presume that a Rule 151.1

conflict check occurs as part of that process. In this case, as in all cases that have been

8 of 38
INDEX NO. EFCA2020-000333
FILED: ONEIDA COUNTY CLERK 04/23/2024 12:40 PM
NYSCEF DOC. NO. 351 RECEIVED NYSCEF: 04/23/2024

transferred to me, I simply receive the signed transfer order and the file. To the extent anyone

may be implying that I secured the transfer of this case so that I could show favor to Attorney

Locke and her client, such an implication is completely unwarranted.

Moreover, before Attorney Nicotera raised this argument in his reply papers, the

undersigned advised the law clerk for the DAJ about this recusal motion within an hour of it

being received on April 15, 2024. I conveyed the index number for the case and the docket

number for Attorney Nicotera’s moving affirmation. The law clerk indicated she would advise

the DAJ. I received a message later that same day from the DAJ’s office that the decision to

recuse rested solely within my discretion. The Court infers from this direction that Rule 151.1 is

inapplicable to this case.

C. Whether Attorney Locke Has Received Undue Favor from the Court

Nor can the Court identify an instance where Attorney Locke received undue favor from

this Court that would give rise to a public appearance of impropriety. When this case was first

transferred to the undersigned, there was a pending motion brought by Defendants for leave to

reargue Justice Clark’s Decision & Order dated July 17, 2023 [Dkt. No. 146]. Attorney Locke

opposed that motion by filing her affirmation (consisting of 15 pages and 58 paragraphs) with 21

exhibits attached [Dkt. Nos. 161-182]. By Decision & Order dated October 25, 2023 [Dkt. No.

189], this Court granted Defendants’ request to file a summary judgment motion, which

opportunity was previously denied in the aforementioned Decision & Order of Justice Clark.

This Court also provided Defendants with partial relief relative to a request to compel non-party

witness Trisha Smith (“Smith”) to comply with discovery subpoenas, whereas Justice Clark’s

prior Decision & Order denied Defendants all relief requested. Attorney Locke filed a Notice of

9 of 38
INDEX NO. EFCA2020-000333
NYSCEF DOC. NO. 351 RECEIVED NYSCEF: 04/23/2024

Appeal from this Court’s Decision & Order [Dkt. No, 292] (as have Defendants [Dkt. No. 311]).

This outcome does not, on its face, appear favorable to Attorney Locke or her client.

In the moving papers, Defendants further accuse the undersigned of having displayed a

“protectionist bias attitude in favor of Ms. Locke” at a February 15, 2024 court appearance

(Nicotera Affirmation, § 59 [Dkt. No. 336]). Not only was Defendants’ summary judgment

motion returnable on that date, but also Defendants’ motion for contempt brought against Smith

for alleged violations of the October 25, 2023 Decision & Order. To the best of Attorney

Nicotera’s recollection, this “protectionist bias attitude” was.displayed when the undersigned

allegedly threatened Attorney Longeretta with discipline and sanctions for imputing dishonesty

to Attorney Locke (see id., §{[ 29-31 [Dkt. No. 336]).> The Transcript however, reflects the

Court quoting various subsections from Rule 3.4(a) of the New York State Rules of Professional

Conduct to inquire of defense counsel whether he believed Attorney Locke had acted in violation

of this Rule such as to warrant the filing of a complaint with the Grievance Committee (see

Transcript at 19, lines 15-21 [Dkt. No. 349]). Defense counsel confirmed that he did not believe

Attorney Locke had violated her professional obligations, that he was making no such

accusations, and then explained the basis for his concern about the nature of the non-party

witness’ responses to various subpoenas (see id., at 19, line 24, through 22, line 25; see id., at 24,

line 4, through 25, line 16 [Dkt. No. 349]). At no point does the Transcript reflect the Court ever

threatening defense counsel with discipline and sanctions.

5 The Nicotera Affirmation was prepared without the benefit of the Transcript from the February 15, 2024
appearance, because the court reporter did not have an opportunity to complete same prior to the affirmation being
filed (see Nicotera Affirmation, § 27 [Dkt. No. 336]). Attorney Nicotera indicated at oral argument that the
Transcript was ordered several weeks before and received by him on April 18, 2024 at 10:26 a.m. The Court notes
the Transcript was uploaded to NYSCEF on April 19, 2024 at 8:40 a.m. [Dkt. No. 349].

10 of 38
INDEX NO. EFCA2020-000333
FILED: ONEIDA COUNTY CLERK 0472372024 12:40 PM
NYSCEF DOC. NO. 351 RECEIVED NYSCEF: 04/23/2024

Finally, at Attorney Nicotera’s request and over Attorney Locke’s objection, the Court

has stricken from the record her opposition papers to this recusal motion. This result is certainly

not favorable to Attorney Locke.

D. Conclusion

Having considered the issue of Attorney Locke’s campaign contribution in the various

contexts analyzed above, the Court does not see any undue influence as a result of that

contribution. The amount makes up a small percentage of the total campaign contributions

received by the campaign committee; defense counsel contributed a roughly equal amount; the

contributions of others cannot be imputed to Attorney Locke; and Attorney Locke has not been.

unduly favored in this case.

IL. Relationships with Justice Clark

Attorney Nicotera theorizes that the Court has an affinity to favor Attorney Locke

because of her familial relationship with Justice Clark’s husband and because of rulings that

Justice Clark made in a case where my husband and I were named defendants (see Nicotera

Affirmation, §{ 53-58 [Dkt. No. 336]). Some background is necessary to understand this logic

and expose the flaws in its reasoning.

A, Justice Clark’s Husband

From personal knowledge, the undersigned knows that Justice Clark’s husband was

formerly married to Attorney Locke’s mother. During that marriage therefore, Mr. Clark was

Attorney Locke’s stepfather. According to Defendants, Mr. Clark individually contributed

$1,000.00 to the undersigned’s campaign committee (see Nicotera Affirmation, J 10 [Dkt. No.

336).

11 of 38
INDEX NO. EFCA2020-000333
FILED: ONEIDA COUNTY CLERK 04723/2024 12:40 PM
NYSCEF DOC. NO. 351 RECEIVED NYSCEF: 04/23/2024

As with the campaign contributions from Attorney Locke, her law partners, and Attorney

Longeretta, the Court did not know about Mr. Clark’s contribution until the issue was raised in

Attorney Nicotera’s affirmation. As previously discussed with respect to Rule 151.1, campaign

contributions from one individual are not to be imputed to another individual for purposes of

identifying a “campaign contribution conflict.” Furthermore, any stepfather/stepdaughter

relationship between Mr. Clark and Attorney Locke ended years ago when Mr. Clark and

Attorney Locke’s mother divorced. While Defendants conclude that an “enduring familial

relationship” must still exist because Attorney Locke’s firm represents Mr. Clark’s business

interests (see Nicotera Reply Affirmation, | 7 [Dkt. No. 348]), this Court has no idea what those

business interests are, whether they directly involve Mr. Clark, whether Mr. Clark is the one who

chooses to retain Attorney Locke’s firm, or whether Attorney Locke is the attorney with whom

Mr. Clark interacts (assuming Mr. Clark is actively involved).

B. Justice Clark’s Rulings in Kopek v. Denton (EFCA2017-002231)

In 2017, my husband and I were named defendants in a defamation suit to which Justice

Clark was assigned. By way of a bench decision rendered on December 13, 2017 (more than six

years ago), Justice Clark dismissed the Complaint against me. By way of written decision dated

January 12, 2018 (also more than six years ago), the Court issued sanctions against the attorney

representing the plaintiff, after determining that naming me in the lawsuit was frivolous. By way

of written decision dated January 11, 2019 (more than five years ago), Justice Clark denied the

plaintiffs motion to dismiss a counterclaim asserted by my husband in his answering pleadings.

The case concluded with a stipulation of discontinuance with prejudice filed on January 13, 2020

(more than four years ago).

12 of 38
INDEX NO. EFCA2020-000333
FILED: ONEIDA COUNTY CLERK 04723/2024 12:40 PM
NYSCEF DOC. NO. 351 RECEIVED NYSCEF: 04/23/2024

Defendants reason that because Justice Clark ruled favorably toward me and my husband,

and that a personal monetary benefit ensued from the sanctions award that included payment of

attorney’s fees, the undersigned feels an affinity toward Judge Clark that would extend to her

husband and Attorney Locke as Mr. Clark’s stepdaughter. Together with the campaign

contributions from Attorney Locke and Mr. Clark, Defendants conclude that Attorney Locke,

Mr. Clark and Attorney Locke’s law firm “have substantial influence in this Court” (see Nicotera

Affirmation, § 58 [Dkt. No. 336]). Defendants clearly think they have “connected the dots” in a

way that suggests bias on the part of this Court. For several reasons, they are incorrect.

To suggest the undersigned can be “substantially influenced” by previously unknown

campaign contributions makes little sense. To think the undersigned can be “substantially

influenced” because of Justice Clark’s decisions in the defamation action is to presume that

Justice Clark did something more than decide the motions on the merits. The undersigned

maintains that any judge, based upon the application of the law to the facts, would have issued

the same decisions. This assertion is bolstered by the fact that the plaintiff did not perfect any

appeals and plaintiff's counsel did not contest the sanctions award. Quite simply, Justice Clark

was doing her job — not doing the undersigned a favor.

Furthermore, Justice Clark denied my husband’s motion to dismiss the complaint against

him. Discovery ensued, which incurred attorney’s fees and costs for my husband to pay — not to

mention the anxiety and stress we both felt throughout the litigation. Two years passed before

the case concluded, and only after my husband’s attorney filed a motion for summary judgment.

Immediately prior to the deadline by which the plaintiff's attorney was to file opposition papers

to the motion, he contacted my husband’s attorney and offered to withdraw the complaint with

prejudice if my husband would also withdraw his counterclaim. The case settled with no

13 of 38
INDEX NO. EFCA2020-000333
NYSCEF DOC. NO. 351 RECEIVED NYSCEF: 04/23/2024

involvement of Justice Clark, and with no exchange of monies between the parties. Anyone who

believes the undersigned has favorable feelings about or benefitted financially from any part of

this experience is sorely mistaken.

C. Conclusion

Attempts to draw a connection between the undersigned and Attorney Locke through her

former stepfather and through Justice Clark are not only too attenuated to make logical sense, but

also not grounded in fact. Moreover, as explained in the first paragraph of Section I.C above, the

undersigned’s very first decision in the instant case ruled against Plaintiff and essentially

reversed Justice Clark’s July 17, 2023 Decision & Order. It’s hard to see how that outcome was

“substantially influenced” by the concocted relationship Defendants are now trying to draw

among Attorney Locke, Mr. Clark, Justice Clark and the undersigned.

TIL. The Court’s Attitude Toward Defense Counsel on February 15, 2024

Beyond claiming that the Court threatened sanctions against defense counsel at the

appearance on February 15, 2024 (which claim was addressed in Section I.C above), Defendants

further point to several other instances where they claim the Court treated Attorney Longeretta

° As an aside, the Court set the February-15, 2024 return date for the contempt motion so that it would coincide with
the return date for Defendants’ summary judgment motion, in an effort to be respectful of the attorneys’ calendars.
Defendants fault the Court for asking only one question of each attorney relative to the summary judgment motion
(see Nicotera Affidavit, § 26 [Dkt. No. 336]). The Court suspected the contempt proceeding would be time-
consuming, which it was, as it lasted nearly two hours (see Transcript, at 59, lines 2-3 [Dkt. No. 349]). Given the
severity of the relief sought, the Court believed time spent on the contempt motion was of greater priority.
Moreover, the summary judgment papers clearly set forth the evidence and arguments of each party, such that the
Court did not have any questions other than the one that was asked of each attorney.

14 of 38
INDEX NO. EFCA2020-000333
FILED: ONEIDA COUNTY CLERK 04723/2024 12:40 PM
NYSCEF DOC. NO. 351 RECEIVED NYSCEF: 04/23/2024

A. “Your Honor repeatedly admonished Mr. Longeretta....”

Defendants maintain that the Court’s repeated requests of Attorney Longeretta to

articulate the specific basis upon which to hold Smith in contempt amounted to an admonishment

of counsel (see Nicotera Affirmation, § 29 [Dkt. No. 336]). The Court acknowledges that it did

ask this question repeatedly, but not for the purpose Defendants describe. The undersigned’s

intent — as stated when this particular exchange began with Attomey Longeretta — was to identify

specifically how the non-party witness was in contempt, because it seemed to the Court that

Defendants were more concerned about whether Smith had sufficiently responded to two

subpoenas, than whether she had complied with the Court’s Order (see Transcript, at 13, lines 2-

7 [Dkt. No. 349)).
To give context to the conversation between the Court and Attorney Longeretta, Smith

asked for an opportunity to retain counsel at the outset of the proceeding, and the Court wanted

her to be able to articulate to an attorney the basis for contempt (see id., at 13, lines 8-9 [Dkt. No.

349]). Each time Attorney Longeretta responded to the Court’s inquiry, his answers revolved

around whether Smith had adequately produced information responsive to the subpoenas; the

answers did not identify how Smith was in contempt of the Court’s Order (see, e.g., id., at 13,

lines 15-21; at 16, line 14, through 17, line 21; at 20, line 11, through 22, line 25; at 24, line 4,

through 25, line 16; at 27, lines 17-21 [Dkt. No. 349]). As the Court said about halfway through

the proceeding:

That’s why I’m drilling down on this so hard, because [Smith] is facing some
very serious consequences. I’m not saying she’s going to experience those
consequences, but she’s facing them. She’s going to retain an attorney to
defend her in this contempt proceeding. And I want to be sure that I
understand what the basis of the contempt is, not just: I don’t think she gave
us all the information we’re entitled to. That’s a different argument
altogether.

15 of 38
INDEX NO. EFCA2020-000333
FILED: ONEIDA COUNTY CLERK 04723/2024 12:40 PM
NYSCEF DOC. NO. 351 RECEIVED NYSCEF: 04/23/2024

(d. at 26, lines 7-15 [Dkt. No. 349]). Nonetheless, the Court did instruct Smith to ask questions

of an attorney that related to Attorney Longeretta’s explanations; namely “whether the

explanation that Mr. Longeretta just gave about whether production of the folder with the

original metadata was part of the Court’s order dated October 25, 2023, supplemented by a Court

notice dated December 5, 2023” (id., at 17, line 22, through 18, line 3 [Dkt. No. 349]), and

whether the order compelled her to turn over certain text messages (see id., at 37, lines 5-11

[Dkt. No. 349]).
Reading through the Transcript, the undersigned finds no language to suggest the Court

admonished defense counsel for bringing the contempt motion. A distinction exists between

clarification for the basis of a motion and admonishment for having filed the motion in the first

place. If the Court thought the contempt motion was frivolous on its face, the undersigned would

have rejected the Order to Show Cause and allowed Defendants to bring the motion by way of

notice instead. That being said, the undersigned also maintains that respondents in contempt

proceedings should have a clear understanding of the basis for contempt, so that they can

adequately prepare.

B. “Unexpectedly, after advising Mrs. Smith the procedure to follow once she obtained
her own attorney, Your Honor suddenly placed Mrs. Smith under oath and allowed
her to give testimony about her compliance with the subpoenas.”

Defendants apparently feel the Court overstepped its boundaries when it asked questions

of Smith about her compliance with the subpoenas previously served upon her in discovery (see

Nicotera Affirmation, [36 [Dkt. No. 336]). The description of the Court’s actions however, is

once again taken out of context.

While the Court was engaged in conversation with Attorney Longeretta to articulate

specific bases for contempt, Smith took it upon herself to share three Dropbox files with

16 of 38
INDEX NO. EFCA2020-000333
FILED: ONEIDA COUNTY CLERK 04723/2024 12:40 PM
NYSCEF DOC. NO. 351 RECEIVED NYSCEF: 04/23/2024

Attorneys Locke and Longeretta during the proceeding (see Transcript, at 30, lines 5-11 [“I

literally, just as Mr. Longeretta was speaking, went through and shared all three folders with both

of them. It was a matter of me just trying to make the folders look a little more professional . . . .

Ihave shared all three folders with them. He has access to all three folders now.”] [Dkt. No.

349]). Upon learning this, Attorney Longeretta then explained that Defendants believed Smith

was still withholding text messages (see id., at 33, line 18, through 34, line 8 [Dkt. No. 349]).

This representation prompted the Court to engage in conversation with Attorney Longeretta

about the basis for such a belief and whether the October 25, 2023 Decision & Order required

production of evidence by Smith in the first place (see id., at 34, line 9, through 37, line 4 [Dkt.

No. 349)).
At that point, Smith asked to go off the record to explain something involving her family

(see id., at 37, lines 12-21 [Dkt. No. 349]). The Court obtained the consent of both Attorneys

Locke and Longeretta before doing so (see id., at 37, line 22, through 38, line 2 [Dkt. No. 349]).

Thereafter, the Court resumed its conversation with Attorney Longeretta about what other

actions or inactions on the part of Smith were deemed to be in contempt of the Court’s Order

(see id., at 38, line 12, through 39, line 2 [Dkt. No. 349]). Defense counsel explained that if

Smith did not have any more text messages to disclose, she should say so under oath (see id., at

39, lines 11-17 [Dkt. No. 349]).
This comment caused the undersigned to point out that Smith had made such a

representation under oath in a sworn affidavit in response to the Court’s October 25, 2023

Decision & Order (see id., at 39, lines 18-22 [Dkt. No. 349]). The Court pressed Attorney

Longeretta to articulate a sound basis upon which to believe Smith lied under oath, to which he

responded that Defendants simply do not believe that such text messages do not exist given the

17 of 38
INDEX NO. EFCA2020-000333
FILED: ONEIDA COUNTY CLERK 04723/2024 12:40 PM
NYSCEF DOC. NO. 351 RECEIVED NYSCEF: 04/23/2024

number of phone calls that apparently took place between Smith and the Plaintiff (see id., at 39,

line 23, through 42, line 1 [Dkt. No. 349]). The Court then reiterated its point that the October

25, 2023 Decision & Order did not require Smith to make any furthér disclosures, but.rather to

affirm under oath that to the best of her knowledge, she had fully complied with the subpoenas

(see id., at 42, line 2, through 45, line 19 [Dkt. No. 349]).

While the Court thereafter discussed with both counsel whether they received the

Dropbox folders sent by Smith in the midst of the appearance, Smith asked the Court to explain

the phrase “quality of the responses” used by the undersigned throughout the conversations with

Attorney Longeretta (see id., at 47, lines 9-14 [Dkt. No. 349]). The Court explained that it used

the phrase to describe the Defendants’ articulated concern that Smith had not turned over all

responsive documents (see id., at 47, lines 15-24 [Dkt. No. 349]). The Court then inquired of

Smith whether she would like to represent verbally that she had turned over all text messages and

e-mails requested through the subpoenas, but gave the assurance that Smith was under no

obligation to do so (see id., at 48, lines 12-18 [Dkt. No. 349]). Smith voluntarily agreed (see id.,

at 48, line 19 [Dkt. No. 349]). Neither attorney objected. Indeed, Attorney Longeretta asked if

the Court would pose an additional question to Smith (see id., at 49, lines 6-9 [Dkt. No. 349]).

As evidenced by this explanation, the invitation given to Smith to testify under oath was

not sudden. It followed her voluntary decision to send Dropbox folders to the attorneys in the

midst of the proceeding, followed an extensive conversation about the Defendants’ concern that

her sworn affidavit was insufficient to assuage their concerns, and followed the Court’s repeated

focus on language in the October 25, 2023 Decision & Order as it pertained to directives to

Smith’ [Dkt. No. 189]. The context for asking Smith if she would like to answer questions under

7To confirm, the October 25, 2023 Decision & Order required the non-party witness to sign an affidavit that
included the following representations: (1) whether she was in receipt of the subpoena from Merritt S. Locke, Esq.

18 of 38
INDEX NO. EFCA2020-000333
NYSCEF DOC. NO. 351 RECEIVED NYSCEF: 04/23/2024

oath was therefore clearly set out: did she wish to verbalize answers to questions already posed

by the Court in its Decision & O

Case Info

Judge

Bernadette T Track Judge’s New Case

Case No.

(Subscribe to View)

Document Filed Date

April 23, 2024

Case Filing Date

January 30, 2020

County

Parties

Dominick Nicotera Defendant
DRN COUNSELING-CONSULTING SERVICES, LCSW, PLLC Defendant
GAFFNEY, ELIZABETH INGRAHAM Attorney for the Plaintiff
JENSEN, JOHN CARLO Attorney
LOCKE, MERRITT SULLIVAN Attorney for the Plaintiff
LONGERETTA, DAVID ANTHONY Attorney for the Defendant
LONGERETTA, DAVID ANTHONY Attorney for the Defendants
New York State Department of Labor Non Party
NICOTERA, RAYMOND VICTOR Attorney for the Defendant
Shelly Studer Plaintiff
ANTHONY LONGERETTA Attorney
SCOTT LOCKE Attorneys for Plaintiffs
MARK MAHONEY Attorney
LUCILLE ANZALONE Attorney
ANTHONY JOHNSON Attorney
STEVEN LOCKE Attorney
DAVID LOVETT Attorney
JOSHUA BAUER Attorney
ZOYA WEISENSEL Attorney
David LoRe Attorneys for Defendants

For full print and download access, please subscribe at https://www.trellis.law/.

Order: Shelly Studer v. Drn Counseling-Consulting Services, Lcsw, Pllc, Dominick Nicotera

Preview

Related Topics

Case Info

Parties