Dwellers are kvellers after judge SLAPPs down bar’s defame suit

BY SYDNEY PEREIRA | The Lower East Side Dwellers have emerged victorious after a two-year legal battle in which the bar No Fun NYC sued the Dwellers, its founder Diem Boyd, and another Dwellers member, Sara Romanoski, for $3 million. The lawsuit claimed the Dwellers had defamed the bar — alleging that Boyd made false statements about No Fun that caused harm to the business.

But on Tues., April 24, State Supreme Court Justice Lynn Kotler ruled otherwise — finding in favor of the Dwellers on the basis that the case was a “strategic lawsuit against public participation,” otherwise known as a SLAPP suit.

“This is a First Amendment case,” said Diem Boyd, the Dwellers’ founder and director. “It was to intimidate us, to tie us up in litigation, to basically silence us. Basically, their goal was to throw this at us and think that we were going to run away.”

Diem Boyd, head of the L.E.S Dwellers, speaking at a recent community meeting with Julie Menin, commissioner of the Mayor’s Office of Media and Entertainment. Menin’s MOME is the umbrella agency for the city’s new “nightlife mayor,” Ariel Palitz. Boyd gave a PowerPoint presentation on how the oversaturation of the nine-block area of “Hell Square” with liquor licenses is causing myriad quality-of-life problems.  Photos by Clayton Patterson

Referencing the national climate surrounding First Amendment rights under President Donald Trump, Boyd noted that the move by No Fun was a “Trump tactic — out of the Trump playbook.”

On April 26, 2016, No Fun, which is located at 161 Ludlow St., filed suit, charging defamation. The original complaint said that the Dwellers petitioned against the bar’s liquor license renewal in 2013, spread fliers around the neighborhood with false information, and spoke falsely at a Community Board 3 meeting about the bar in 2015. The suit specifically alleged that the information the Dwellers were circulating was false — which the bar argued was defamation.

“For No Fun, the legal action was about standing up to bullies who spout falsehoods with impunity. We believe the decision by the court is deeply flawed,” No Fun’s lawyer, A. Adam Mehrfar, said in a statement to The Villager. “We intend to appeal.”

Mehrfar amended the complaint four times, and at least one of those times the complaint was significantly altered. For Boyd, the amended complaints revealed the gaps in the defamation suit’s fundamental basis.

The Dwellers’ lawyer echoed that sentiment.

“We are glad the court recognized the truth at the heart of this case: that No Fun’s claims were without legal merit,” said attorney Renée Paradis. “It’s telling that No Fun filed four different drafts of its complaint and couldn’t find a single viable claim. This is a good day for community organizing and free speech.”

A critical factor in the judge’s decision was No Fun’s inability to prove that its business was significantly harmed by the alleged false statements. Kotler noted in her ruling that No Fun’s liquor license was renewed, and also cited that No Fun’s lawyer said the bar had public support.

“The court finds that [No Fun] cannot establish by clear and convincing evidence that its business reputation or credit standing were harmed by the alleged defamatory statements,” Kotler stated in her ruling.

The battle stretched over two years with dozens of affidavits submitted, much of which were in support of Boyd and the Dwellers. Nearby residents and community group leaders — as well as other bar owners and even bar owners’ lawyers — submitted statements defending the Dwellers.

The fight was watched by community activists around the city, including one group covering Washington Heights and Inwood that praised the ruling.

“Moving Forward Unidos applauds the dismissal of the frivolous lawsuit filed by No Fun against L.E.S. Dwellers,” Nancy Preston, co-founder of the Uptown group, said. “This lawsuit exemplifies intimidation tactics at the extreme used to put fear in current and future neighborhood activists. The lawsuit hung over the heads of the L.E.S. Dwellers for two years, and considerable expense was required to respond.”

Preston, who wrote an affidavit on the Dwellers’ behalf last September, added that she is encouraged by Kotler’s ruling, particularly for her group’s quality-of-life advocacy work in its own neck of the woods in Upper Manhattan.

Others defended Boyd and the work she has spearheaded Downtown.

“Diem has been a great ally to us,” wrote Jan Lee as a former property and business owner in Chinatown and part of the Civic Center Resident Coalition in his affidavit last September. “The Lower East Side has become a safer neighborhood because the L.E.S. Dwellers act as a watchdog group.”

On Tuesday, Lee thanked the judge for upholding the First Amendment, saying by email that “residents in New York City should not have fear of lawsuits being brought against them, even if [the lawsuits] are frivolous and meant to intimidate block associations.”

MOME Commissioner Julie Menin, right, speaking on nightlife issues with Diem Boyd, of the L.E.S. Dwellers, left, and other community residents and business representatives.

Lee, now the director of The Chinatown Coalition, a quality-of-life group, said community groups are currently exploring how “entertainment” should be defined — basically, it should be defined by residents and “not bar owners who exploit neighborhoods,” he said.

Mayor Bill de Blasio recently appointed Ariel Palitz as the city’s nightlife mayor, which some community groups have criticized as a bad choice because of her history owning a bar that received noise complaints and her tenure on Community Board 3’s State Liquor Authority committee. Palitz’s office, managed within the Mayor’s Office of Media and Entertainment, is expected to make recommendations to the mayor and City Council on how to improve laws regarding nightlife through studying typical complaints, public safety, zoning and working conditions, among other nightlife-related issues.

Since Palitz’s appointment, however, it has been MOME Commissioner Julie Menin who has met with various community groups Downtown at least twice, including The Chinatown Coalition and the Dwellers.

The most recent meeting at Hotel Indigo on Tues., April 24, was attended by more than 100 people, according to Boyd. A few dozen had to be turned away due to a lack of space. The majority who came were residents and members of community groups, but Boyd said it was “frustrating, planning-wise,” that nightlife industry types attended since the room was already jam-packed — so much so that a last-minute change to a larger room was required. Boyd felt it would be better for industry reps instead to attend the borough-wide town halls that the nightlife office is expected to schedule, as required by legislation.

“The goal was to educate people about her office and learn more about how the nightlife office will work,” Boyd said of the Indigo meeting. “Residents and community groups felt left out during the City Council’s process on passing the bill, with little understanding of what the nightlife mayor and her office will do. Menin afforded the community an opportunity to be included and have their concerns heard.”

Added Chinatown activist Lee, “We plan on working closely with Commissioner Julie Menin, who has been extremely open and available to us by way of two recent meetings with block associations from the most troubled areas Downtown. With Ariel Palitz and Julie Menin we plan to define the ‘culture’ and ‘entertainment’ that is Downtown, and it will include a responsible resident-centric point of view.”

In addition to dismissing No Fun’s case, Kotler ruled that the Dwellers’ counterclaims remain, which means the case will continue on as the watchdog group seeks a settlement for financial, emotional and psychological damages over the two-year legal battle. The court will hold a preliminary conference for the countersuit June 26.

“This is the first time we’ve been sued,” Boyd said. “I hope our last, honestly. I don’t want residents to ever feel that pressure again — that they can’t complain.”

Regardless of the ongoing legal troubles, Boyd said the lawsuit hasn’t swayed the Dwellers from their mission.

“We’ve continued our work,” she said. “Was it great to have this hanging over our head? No. But we were not deterred from doing what we think is important to make this a better, more liveable community for everyone. So we will continue as we always have.”

Leave a Reply

Your email address will not be published. Required fields are marked *