FILED: NEW YORK COUNTY CLERK 10/04/2016 01:45 PM INDEX NO.

653668/2016
NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 10/04/2016

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF NEW YORK
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Bibliotechnical Athenaeum,
Plaintiff,

-against- Index No.: 653668/2016

National Lawyers Guild, Inc., &

The National Lawyers Guild
Foundation, Inc.,

Defendants.
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DEFENDANTS' REPLY MEMORANDUM OF LAW

Defendants submit this Memorandum of Law in reply to Plaintiff's opposition and in further

support of their Motion to Dismiss.

Point One

PLAINTIFF MISCHARACTERIZES THIS CASE AS BEING ABOUT PUBLIC

ACCOMMODATIONS, WHEN IT SOLELY CONCERNS FIRST AMENDMENT ISSUES

As a threshold matter, Plaintiff in its Memorandum of Law in Opposition knocks down a person

of straw when it states that Defendants are challenging the constitutionality of the New York State and

New York City human rights laws. Defendants mount neither a facial nor an as-applied challenge to

those laws. Defendants have no doubt whatsoever that these human rights laws are facially

constitutional as to the behavior they were intended to cover. For an as-applied challenge to be

appropriate, a state entity or official would have had first to have applied these laws to Defendants'

conduct, and no one has done so, cf. New York Coalition of Recycling Enters. v. City of New York, 158

Misc. 2d 1 (Supreme Court, New York County 1992) (as-applied challenge not ripe for

determination because no government action had yet been taken). Defendants instead argue that, as a

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matter of law, the behavior, facts and alleged harms set forth in the Complaint are, as pleaded, outside

the scope of these laws. It is the most basic of judicial functions to determine whether the actions

complained of fall within the scope of the law on which the plaintiff relies, Chase v. Board of Educ. of

the City of New York, 25 Misc. 3d 1204(A) (Supreme Court Kings County 2009) (scope of Human

Rights Law); Matter of Richard Zampieron v Board of Educ. of the City School Dist. of the City of New

York, 30 Misc. 3d 1210(A) (Supreme Court New York County 2010) (Education Law); Reyes v Arco

Wentworth Mgt. Corp., 83 A.D.3d 47 (2d Dept. 2011) (Labor Law); Abrams v. Chu, 124 A.D.2d 30 (3d

Dept. 1987) (Tax Law). Scope issues are appropriately raised on motions to dismiss, which must be

granted if the actions complained of are outside the scope of the law on which the complaint is based,

for example State v. Mobil Oil Corp., 38 N.Y.2d 460 (1976) (defendant's challenged behavior per se is

not and never has been within the purview of the Sherman Act).

Incidentally, Plaintiff's citation of New York City Human Rights Law Section 8-102(9) is

inapposite. The section states: "Such term [public accommodation] shall not include any club, which

proves that it is in its nature distinctly private (emphasis added). Plaintiff has not asserted that

Defendants constitute a club--and certainly Defendants' annual printed program cannot be a club

under the wildest stretch of the imagination.

The human rights laws cited are not broad enough in scope to overcome the rule in Miami

Herald Publishing v. Tornillo, 418 U.S. 241 ( 1974), which holds that Plaintiff cannot dictate the

content of Defendants' First Amendment-protected publication. Rejection of its advertisement is the

only behavior of which the Plaintiff is complaining. Plaintiff confuses the issue by its reference to the

Defendants' annual dinner, in connection with which the program was printed. This is not a claim that

Defendant was denied entry or accommodations at the annual dinner. Although Defendants also

maintain that the dinner itself was not a public accommodation, the Plaintiff nowhere alleges that it

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made any attempt to purchase tickets for or to send representatives to attend the dinner itself.

Additionally, the language it quotes from Ness v. Pan Am World Airways, 142 A.D.2d 233 (2d Dept.

1988) is mere dicta, not part of the holding, as that case concerned a travel agency service, and not

the facilities of a fraternal organization [which] became a 'place of public accommodation' for the one

night that they were used to stage a fashion show to which the general public was invited."

Plaintiff's Complaint must be dismissed, as Plaintiff cannot compel the inclusion of its

advertisement in the Defendants' program.

Point Two

PLAINTIFF'S COUNSEL ABRAMS IS THE ONLY AVAILABLE WITNESS ON HIGHLY

CONTESTED ISSUES

The Complaint filed July 13, 2016 alleged only that Plaintiff is an Israeli organization with

places of business in New York, New York and Elazar, Gush Etzion, Israel (paragraph 5). In his

Affirmation filed September 28, 2016 in opposition to this motion, Mr. Abrams now states that the

Plaintiff is a corporation, incorporated in Israel under a different name on March 18, 2016, and that he

brought this action under its doing business name (paragraphs 2-5). Neither in the Complaint nor in his

affirmation does Mr. Abrams state what business the Plaintiff is in, or that it has any activities in New

York State (other than bringing this law suit) or that it has any employees or representatives, other than

Mr. Abrams himself, in Israel or in New York. Mr. Abrams concedes that he personally contacted

Defendants as employee or agent of Plaintiff to request placement of an ad in the program (paragraph 9

of his affirmation).

Under the circumstances, Defendants must take Mr. Abrams' deposition and direct other

discovery to him, and must question him at trial, as there is no other witness. He is the only one. Mr.

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Abrams willingly and voluntarily assumed the role, and he cannot now argue that he is entitled to act as

witness and advocate in this matter. As the Court of Appeals ruled last December in People v Ortiz, 26

N.Y.3d 430 (2015): [A] lawyer must withdraw from representation when it becomes apparent that she

must testify on behalf of her own client. The rule seeks to avoid the unseemly circumstance of placing

an attorney in a position in which he must argue the credibility of his own testimony which may

confuse the fact-finder and impair the fairness of the trial" (citations and quotes omitted). Mr. Abrams

argument that his testimony would pertain solely to an uncontested issue is quite ingenuous

(Plaintiff's Memorandum of Law filed September 28, 2015, p. 15). Defendants vigorously contest every

element of the claim, and if the case is not dismissed on this motion, must inquire into whether there

was an actual cause or controversy, or whether the Plaintiff was formed solely for the purpose of

bringing this litigation; whether it has any actual business activities in Israel or New York; whether its

address in the proposed advertisement is located in the Israel of pre-1967 borders or in a settlement on

Palestinian lands outside such borders; what actual physical facilities and operations the Plaintiff has at

that address; and the facts and circumstances relating to the attempt to place the ad. Examples courts

have given of uncontested issues include matters of formality and value of legal services rendered,

Zaccaro v. Bowers, 2 Misc. 3d 733 (Civil Court New York County 2003) and records and testimony

regarding the time spent or the advice given by plaintiff, Kirshon, Shron, Cornell & Teitelbaum P.C. v.

Savarese, 581 N.Y.S.2d 487 (3d Dept. 1992). Such routine issues are not pertinent here.

Attorney Abrams is the primary and only apparent witness having personal knowledge of the

material facts in the case, including the nature of the Plaintiff, its business and interests, its activities

and facilities in Israel and New York State, and the facts and circumstances of its request to place an ad

in Defendants' program. Mr. Abrams will thus have to testify at trial and will then, if he is permitted

also to act as attorney, be in the unseemingly and ineffective position of arguing his credibility since

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the functions of an advocate and a witness are inconsistent, Tru-Bite Labs, Inc. v. Ashman, 54 A.D.2d

345 (1st Dept. 1976).

Mr. Abrams must be disqualified as counsel for Plaintiff under the advocate-witness rule.

CONCLUSION

The Complaint should be dismissed in its entirety. In the alternative, Plaintiff's counsel should

be disqualified under the advocate-witness rule.

DATED: Amagansett, N.Y.

October 2, 2016

/s/Jonathan Wallace
Jonathan Wallace
Attorney for Defendants
P.O. 728
Amagansett, N.Y. 11930
jonathan.wallace80@gmail.com
917-359-6234

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