JUDGE DISMISSES FOXCROFT VILLAGE DEFAMATION CLAIMS VS TWO WHISTLEBLOWERS OVER RAW SEWAGE & MORE
OWNER GAYLA SUE LEVIN DECLINES COMMENT
PLAINTIFF ALLEGES PAYOFFS BY GEORGE LEVIN TO TOWN OFFICIALS BASED ON HER CONTACT WITH PROPERTY MANAGER
FOXCROFT TO APPEAL DECISION
State Supreme Court Judge Kevin R. Bryant last week dismissed defamation
claims brought by Foxcroft Village LLC against two residents of the Loch Sheldrake mobile home park.
The resident owners - Jenny Paesch and Jacqueline Murphy - prevailed under a
recently-amended New York law, called the anti-Strategic Lawsuit Against Public Participation
Foxcroft Village LLC in November filed a defamation lawsuit against the pair based on
Facebook comments they made that which were critical of living conditions there.
Gayla Sue Levin, who under her company "L &F Enterprises" admitted to being one of the owners of Foxcroft when reached by phone on Tuesday, said "no comment" when asked about the court decision. She also refused to confirm whether she was the sole owner or if her ex-husband - George Levin - remained a principal. "It doesn't matter," she said before hanging up.
(In 2012, the Securities and Exchange Commission filed a civil complaint against George Levin and a jury in 2015 found that he committed securities fraud in connection with two private investment funds that raised more than $157 million from over 150 investors in less than two years).
Monticello attorney Marvin Newberg represented Foxcroft in the defamation case and in multiple other lawsuits on behalf of the property.
"Foxcroft intends to appeal this decision," Newberg told The SullivanTimes on Tuesday. "This statute was amended in November 2020 and there is very little appellate case law authority interpreting this law. "
Newberg wrote in court papers opposing the motion by the two defendants to dismiss the claims that: "While it would be nearly impossible to have an approximately 250 unit mobile home park without conditions complaints by some of the residents...this action was brought by reason of the Defendants' malicious and willful libel and defamation per se, wherein they accused Foxcroft Village of the felony of bribery of public officials. A false, defamatory statement is libel per se if it charges another with a serious crime or intends to injure another in his or her trade, business or profession. "
A person answering the phone at the Foxcroft Village office on Tuesday hung up when asked for the names of the owners.
The court ruled that Paesch and Murphy could proceed with their counter-claims against
Foxcroft Village LLC for negligence, intentional infliction of emotional distress, and for
violating the anti-SLAPP law, according to Christopher Watkins, the attorney representing the two women. He said that they are seeking compensatory and punitive damages, as well as
their attorney fees and costs.
"This kind of lawsuit is precisely why New York amended its anti-SLAPP law, which
used to be extremely narrow and allowed the wealthy and the powerful to intimidate their critics through the courts," Watkins said on Tuesday. "This is an important decision and hopefully, by the end of this case, the owners of Foxcroft Village will deeply regret ever trying to bully my clients into silence."
In an affidavit that's part of the suit, Paesch said that as of November 2021 , water service was sporadic and "would be cut off altogether for hours and sometimes for days at a time, leaving us with no running water."
She also said that her septic system was failing for many years that the the property's employees "would make stopgap fixes ...which never actually solved the problem. We had raw sewage on our property and inside our house and it even got in the dishwasher line. Things were so bad last year that my family had to move into a hotel for a few days."
Paesch also testified in her affidavit that:
"Before I posted on Facebook in November 2021, the property manager who worked at Foxcroft when I moved in, Mikey Mergendahl, was in touch with me on Facebook and by phone. He told me that George Levin and Foxcroft paid off Town and other government officials to look the other way. Attached as Exhibit 5 is a true and correct copy of a message from Mikey Mergendahl about George Levin paying off government employees from January 2020. I had no reason not to believe Mr. Mergendahl based on everything I saw and experienced and that I know about the way that Mr. Levin operates, and the fact that conditions were allowed to remain so bad here. "
Watkins said that his clients lived with raw sewage inside their homes for years "due to the neglect of the owners and management of Foxcroft Village, and when they spoke out and sought help, they were slapped with a 'two million lawsuit' for defamation."
He added that the new anti-SLAPP law "levels the playing field" and that the decision "should be a warning to other bullies: You can no longer use the courts as a weapon to silence your critics."
Bryant ruled that the online comments about poor conditions at Foxcroft Village
involving leaking sewage systems, unreliable water service, lack of garbage disposal, and
unresponsive management, were on matters of public concern. The court pointed out that those same substandard conditions had led to a lawsuit against Foxcroft Village and its owners by the New York State Attorney General, as well as enforcement actions by the New York State Department of Health, and numerous complaints from the Town of Fallsburgh Building Department.
According to Watkins, Bryant also ruled that Foxcroft Village "misrepresented much of what was written" by Paesch and Murphy and took their "comments out of context." In addition, their comments were "based on personal knowledge, statements from their neighbors and publicly available documents from known credible sources." Therefore, they were not acting with malice and were shielded from Foxcroft Village's defamation lawsuit.
As part of the suit, Watkins obtained 27 pages of complaints filed with Town of Fallsburg against Foxcroft. The latest complaints are below.
A copy of the decision and order on motion is below.