Between A Rock And A Hard Place

Ann: Nothing's what I thought it was. John's a bastard. Let's make a videotape. Graham: No, I don't think that's a good idea. Ann: Why not? Graham: Because I don't think it's a choice that you'd make in a normal frame of mind. Ann: And what would you know about a normal frame of mind? - RCA/Columbia movie 'Sex,Lies and Videotape' (1989)

"Being between Scylla and Charybdis is an idiom deriving from Greek mythology, meaning "having to choose between two evils". Several other idioms, such as "on the horns of a dilemma" express the same meaning. Scylla and Charybdis were mythical sea monsters noted by Homer; later Greek tradition sited them on opposite sides of the Strait of Messina between Sicily and the Italian mainland. Scylla was rationalized as a rock shoal on the Italian side of the strait and Charybdis was a whirlpool off the coast of Sicily. They were regarded as a sea hazard located close enough to each other that they posed an inescapable threat to passing sailors; avoiding Charybdis meant passing too close to Scylla and vice versa.

According to Homer, Odysseus was forced to choose which monster to confront while passing through the strait; he opted to pass by Scylla and lose only a few sailors, rather than risk the loss of his entire ship in the whirlpool. Because of such stories, having to navigate between the two hazards eventually entered idiomatic use through the phrase, between a rock and a hard place." 

Rockland County Republican Chairman Vinnie Reda, Clarkstown Republican Chairman, Bob Axelrod, and Clarkstown Highway Superintendent, Wayne Ballard, are paddling up to their necks in some dangerous political waters as they follow County Legislator, and Clarkstown part-time employee, Frank Sparaco's boat into the whirlpool of his latest 'Homerian Odyssey'.

The background to this pseudo-mythological saga is that Sparaco conducted a "Clouseauean" investigation in which he claimed he was seeking corruption in the Town of Clarstown. With Reda, Axelrod and Ballard as his three 'stoogical' stage props, Sparaco held a press event on July 15, 2013 to showcase some heavily-edited, secretly-recorded audio and video of him trying to lure local politicians into making petty bribes in return for his support of the Democratic candidate for Highways Supt., Dennis Malone.  According to Cliff Weathers of NYaltNews.com the only thing missing was the fake mustache and the magnifying glass Sparaco used in the investigation. 

Sparaco claimed in the press conference, and in several subsequent conversations, that he covertly recorded eight hours of audio and video with Rockland County Democratic Party attorney Larry Weissman, Republican Clarkstown Councilman Frank Borelli, and Democrat Dennis Malone.  The press event was described by Weathers as the hysterics of an overindulged brat egged on by a clownish, demented 'uncle'.

Not content to be thrust "on the horns of a dilemma" by any "overindulged brat" or his "demented uncle", Malone "grabbed the bull by the horns" and sued Sparaco, Reda, Axelrod and Ballard.  Through his attorney, Daniel Bertolino, he asked to be provided with an unedited copy of the eight hours of materials that Sparaco claims support his allegations of bribery and corruption.  Sparaco's reaction to the lawsuit was a tirade on Facebook with his school friend and the figurative 'Chairman' of the Independence Party, John Perrotta, calling Borelli and Malone "liars, extortionists and bribery artists" and braggadociously commenting that the lawsuit would be dismissed. 

Having sputtered that he had eight (8) hours of video and audio materials which he had given in their entirety to the FBI, and then stalled when he was asked to produce all eight hours of unedited recordings by the Supreme Court of the State of New York and the Town of Clarkstown's Ethics Board, Sparaco is now stuck between a "rock and a hard place" with his hare-brained companions left awash in the wake of his floundering boat.

Sparaco's motion of October 18, 2013 to have Malone's lawsuit dismissed by Judge Robert M. Berliner, J.S.C. was not granted. An order dated December 02, 2013 reads:

Supreme Court - State of New York - Dennis Malone against Frank Sparaco, Vincent D. Reda, individually and as Rockland County republican Party Chairman; Robert Axelrod, individually and as Clarkstown Republican Party Chairman; and Wayne Ballard, individually and as Clarkstown Highway Superintendent.

It is ordered that this motion is disposed of as follows:

The instant action lies in defamation and defamation by implication.  Reduced to its simplest terms, Ballard, at the time of the events complained of, was the Highway Superintendent of the Town of Clarkstown.  Malone wanted the job, and the two were the two major party candidates in the 2013 general election. Sparaco, in addition to being a Rockland County Legislator, was a part time employee of the Town. 

On or about July 15, 2013, Sparaco, Ballard and Reda held a news conference wherein Sparaco claimed that, in exchange for his support of Malone in the general election, he, Sparaco, would receive another job in the Town, at a pay higher that he was currently receiving. In support of these allegations, Sparaco produced video and audio tapes of the alleged bribe offering.  

He produced a tape of approximately 40 minutes, which tapes were widely disseminated.  However, it was also revealed that there were actually eight hours of tapes, and the tapes produced were merely edited versions.  The full extent of the tapes have not been released to the press or public, to this court's knowledge.  

According to Sparaco, they were turned over to the FBI.  No one has, as of this date, been charged with any crimes.

The plaintiff has requested of Sparaco's counsel that the full tapes be turned over, but, so far, this request has been rebuffed.

Both Sparaco and Ballard move, pre answer, for dismissal.  

They allege that even under the most liberal reading of the complaint, the complaint fails to state a cause of action.  This is particularly true here when CPLR 3016(a) is considered, since the movants also allege failure to comply with that section.  Thus, the complaint must fail.

The plaintiff, of course, argues otherwise.  

He points out that the very material he needs to more fully expand on his complaint, the full eight hours of tapes, is within the control of Sparaco, and he refuses to produce them.  The plaintiff argues that this is exactly what is contemplated by CPLR 3211(d).

The court finds that the Practice Commentaries in McKinney's to be very helpful in deciding these motions.  The Commentaries clearly indicate that the statute is not as unforgiving as the movants would have this court believe.  

At this stage of the proceeding, the court is not prepared to dismiss the complaint.  Therefore, the motions are denied without prejudice to renewal upon completion of discovery.

Defendant Ballard has also alleged that the matter against him, in his capacity as the Highway Superintendent must be dismissed since the plaintiff failed to serve a Notice of Claim.  The plaintiff does not dispute this point, and thus as to Ballard, as Highway Superintendent only, the complaint is dismissed.

This constitutes the decision and order of the court. 

Dated:  New City, New York December 02, 2013
ENTER:  Robert M. Berliner J.S.C

To:
Daniel E. Bertolino, P.C.
Daniel Szalkiewicz & Associates, P.C.
Duncan Rogers Lee, II, Esq.
Whiteman Oysterman & Hanna LLP

While Berliner's decision may be appealed it is very unlikely to be overturned as the plaintiff, Malone, has a constitutional right to confront the full evidence Sparaco claims to have assembled against him.  

It is therefore somewhat half-brained that Sparaco, by retaining the materials necessary for Judge Berliner to dismiss Malone's lawsuit, would run the risk of having members of the Town Board and other employees of the Town subjected to depositions under oath as part of the discovery process in a defamation lawsuit. 

Additionally, the Town of Clarkstown stands complicit in accepting Sparaco's rebuff when it unanimously passed a motion, proposed by Councilman Borelli and seconded by Councilwoman Hausner to refer the behavior of Sparaco, Borelli, Malone and Ballard to the Town's ethics committee. The Board's resolution required Sparaco to turn over the complete and unedited tapes to the Town for it to provide to the Ethics Committee before the committee commenced its investigation. 

It is a logical conclusion that since the eight hours of unedited tapes have not been turned over to the Supreme Court they have not been turned over to the Town Board as was required by its resolution.  Yet the Board has taken no public action to force its part-time employee, Legislator Sparaco, to comply with a resolution which is currently exposing several people, including a town employee and a town councilman, to an incomplete investigation of their ethical behavior.  

The parties involved in the Town's ethics inquiry have been asked to appear before the Ethics Committee in March and one must therefore ask if the Town Board has exercised even the minimum requirements of its 'duty of care' which requires that it adhere to a standard of "reasonable care while performing any act that could foreseeably harm others". 

This curious behavior of Legislator Sparaco in not turning over his eight hours of "corruption" tapes may perhaps be explained by recalling why the dog in Sherlock Holmes' story Silver Blaze did not bark.  

Gregory (Scotland Yard detective): "Is there any other point to which you would wish to draw my attention?"  Holmes: "To the curious incident of the dog in the night-time."  Gregory: "The dog did nothing in the night-time."  Holmes: "That was the curious incident."

The dog did not bark because as Holmes explains: “I had grasped the significance of the silence of the dog, for one true inference invariably suggests others....obviously the midnight visitor was someone whom the dog knew well."

There are two inferences that can be grasped from the significance of Sparaco's denial that he has eight hours of tapes: 1) He did not speak truthfully when he repeatedly said he had eight hours of such material; 2) There are indeed eight hours of tape but perhaps they involve persons not previously identified in the original "demented" press conference. 

Whatever the truth of the matter may be, only Legislator Sparaco knows. However, the point to be drawn to the Town Board's attention is the danger of permitting this Greek myth to sail on for too much longer. 

Those not already in the water may be swept into the Whirlpool of Charybdis if Clarkstown's 'Homer' is permitted to morph into Rockland's 'Homer Simpson' and this cartoonish odyssey founders on the Rock of Scylla that is Malone's lawsuit.

This blog is authored by Michael N. Hull, a retired senior citizen. Hull contributes periodically to the Facebook page Clarkstown: What They Don't Want You To Know.  Hull is one of the defendants in a separate lawsuit filed by Sparaco, Reda, Ballard and a Town Vendor, Mondelli, related to his articles 'Mr Nimick Goes To Clarkstown', 'Autumn Leaves and Highway Robbery', and 'Dialing for Dollars'. The plaintiffs through their attorney Duncan Rogers Lee, II, Esq. are seeking "monitory" (sic) damages to compensate for mental anguish, embarrassment, and emotional injury.  Lee is seeking the office of Village Justice in Upper Nyack on the Republican and Independence Party lines. Lee and Axelrod host a weekly radio show on WRCR 1300 AM. 

(Picture by James Gillray  'Britannia between Scylla & Charybdis' - 1793)