[Note: On June 29, 2016, John A. Michalek, former State Supreme Court Justice, pled guilty to bribery charges. See the Buffalo News article here. As far as I can tell, the charges to which Michalek admitted guilt do not involve the case that I had before “His Honor” that inspired this January 2014 post, although the timeframes coincide. But I’m still waiting for the other shoe to drop. Also, to date, I appear to be the only local lawyer willing to speak out publicly regarding Michalek’s inappropriate conduct while on the bench. See the May 11, 2016 report in The Public re “Michalek’s Blemishes.”]
I recently spent 409 days – from November 20, 2012 through January 2, 2014 – with my First Amendment right to free speech restricted by a series of court orders entered by New York State Supreme Court Justice John A. Michalek. Fortunately, that “prior restraint” has ended.
On January 3, 2014, the NYS Appellate Division, Fourth Department, ruled unanimously that the lower court had “abused its discretion” when it precluded me from communicating with Kaleida Health, a non-party health care provider, concerning the subject matter of the pending lawsuit (an action by the plaintiff development company to extinguish restrictive covenants on eleven parcels of land in the City of Buffalo). In pertinent part, the Fourth Department’s Memorandum and Order reads as follows:
“In appeal No. 1, we agree with appellants that Supreme Court abused its discretion in precluding Giacalone from communicating with Kaleida pursuant to CPLR 3103. Plaintiff sought, inter alia, to enjoin Giacalone from communicating with Kaleida on the ground that Giacalone had violated the New York Rules of Professional Conduct (22 NYCRR 1200.0 et seq.), and the order to show cause bringing on the motion contained a temporary restraining order (TRO) enjoining Giacalone from engaging in certain conduct. By the order in appeal No. 1, the court, inter alia, denied that part of plaintiff’s motion based on the alleged violation of the Rules of Professional Conduct and vacated the TRO, but the court also sua sponte granted the relief with respect to Kaleida pursuant to CPLR 3103. In pertinent part, that statute permits the court to issue “a protective order denying, limiting, conditioning or regulating the use of any disclosure device” (CPLR 3103 [a]). Here, however, there was no evidence establishing that Giacalone had misused the discovery process. Indeed, the documents submitted in support of plaintiff’s order to show cause do not mention the discovery process, nor do they contain any evidence establishing that the conduct complained of was related to any information obtained in that process. Thus, inasmuch as “plaintiff failed to show that there was anything unreasonable or improper about defendants’ demands” or the use of discovery materials by defendants and Giacalone (Response Personnel, Inc. v Aschenbrenner, 77 AD3d 518, 519), and there was no indication that “the disclosure process [was] used to harass or unduly burden a party” or a witness (Barouh Eaton Allen Corp. v International Bus. Machs. Corp., 76 AD2d 873, 874; see Seaman v Wyckoff Hgts. Med. Ctr., Inc., 25 AD3d 598, 599, lv dismissed 7 NY3d 864), the court abused its discretion in precluding Giacalone from communicating with Kaleida (cf. Jones v Maples, 257 AD2d 53, 56- 57). We therefore modify the order by vacating the ordering paragraph in which that relief was granted. In light of our determination, we do not consider appellants’ further contentions concerning preclusion.”
See Affinity Elmwood Gateway Properties LLC v. AJC Properties, 113 AD3d 1094 (4th Dept. 2014) (CA 13-00539, Jan. 3, 2014). As the Appellate Division’s memorandum indicates, the constitutional issues were not considered in light of the court’s vacating of the offending portion of the lower court’s order. [Click hereto review Appellants’ Brief, which contains a detailed discussion of the pertinent facts]
With All Due Respect,