The New York Law Journal by Daniel Wise - July 13, 2010
The judge who lost a 2007 Democratic primary for Brooklyn surrogate has filed an unusual lawsuit seeking $15 million from her successful rival and the winner's attorney. The defeated candidate, Civil Court Judge ShawnDya Simpson, contends that Brooklyn Surrogate Diana A. Johnson and her campaign attorney, B. Mitchell Alter, used confidential information against Judge Simpson in the surrogate campaign that Mr. Alter had gained when he represented Judge Simpson in a 2003 Civil Court race. Judge Simpson filed her lawsuit, Simpson v. Alter, 106471/09, last year. Discovery is almost complete in the case. Judge Simpson alleged in her complaint that Mr. Alter improperly disclosed to reporters, blogs and political figures the address of a house that she owns in South Orange, N.J., her mortgage, her children' schools and after-school activities and the fact that one of her children had a health problem that required the family to maintain a domicile in South Orange. She claimed in the bill of particulars to her suit that these disclosures exposed her and her family to "extreme danger" because she had been assigned to Criminal Court in Manhattan and was a prosecutor in Brooklyn for 12 years before her election to the bench. According to Judge Simpson's complaint, Surrogate Johnson "conspired with and permitted" Mr. Alter to disclose the confidential information to challenge Judge Simpson's residency during the 2007 primary. Mr. Alter in interviews denied having disclosed any client secrets, saying that all the information cited by Judge Simpson was "a matter of public knowledge during the 2003 race and was published in a Daily News article." "She is nothing but a sore loser," he added. Judge Simpson's New Jersey house was a campaign issue and "the voter's of Kings County soundly rejected her position that she was a resident of Brooklyn." Surrogate Johnson beat Judge Simpson in the 2007 surrogate primary by 19 percentage points and went on to be elected surrogate, defeating a Republican candidate by a large margin. Surrogate Johnson's lawyer, Marc Kreig, did not respond to a request for comment. Judge Simpson's lawyer, Laura M. Dilimetin, said her client brought the suit against Surrogate Johnson and Mr. Alter because they "have violated one of the most sacred tenets of the legal profession"—to preserve client confidences. Ms. Dilimetin, of Dilimetin & Dilimetin in Manhasset, declined to comment further. Judge Simpson's complaint raises seven causes of action. Three claims—breach of contract, breach of fiduciary duty and legal malpractice—are aimed solely at Mr. Alter and his firm, Alter & Barbaro. Surrogate Johnson is accused of aiding and abetting the lawyer's misconduct and tortious interference with a contract. Both are charged with unjust enrichment and invasion of privacy. The two sides do not dispute that Mr. Alter represented Judge Simpson in a 2003 Civil Court race and her opponent, Surrogate Johnson, in 2007. They also agree that the issue of the South Orange house was raised to question the bona fides of Judge Simpson's residency in Brooklyn in both the 2003 and 2007 races. The first time the issue surfaced, Judge Simpson was being represented by Mr. Alter.
They differ, however, on the scope of the 2003 representation. Judge Simpson alleges that Mr. Alter had been retained to give her advice about establishing residency to qualify for the Civil Court race and any rules restricting where she could reside if she won. It was in that context that she gave Mr. Alter confidential, personal information, she says. Mr. Alter in an interview denied that Judge Simpson had hired him for any purpose other than to make sure that her nominating petitions met all legal requirements. "I did not advise her about residency issues," he said, "and in fact was not retained until after [Judge Simpson] had already moved to Brooklyn to establish residency. "I did not even realize she had a New Jersey address, until her opponent raised a residency challenge based upon it before the New York City Board of Elections." The city board's lack of jurisdiction was "so clear-cut," Mr. Alter said, that her opponent withdrew the challenge once Mr. Alter advised her lawyer that residency challenges can only be brought in the Supreme Court." The matter was resolved with one phone call, he said, which involved so little time, "I did not charge [Ms. Simpson] but just threw it in as a part of the package." Jerry H. Goldfeder, an expert in election law at Stroock & Stroock & Lavan, said courts are extremely liberal in construing residency requirements under the election law. "Basically," he said, "candidates, with multiple residences all of which are legitimate, can choose…the district where they want to run."
In 2007, Queens Supreme Court Justice Peter J. O'Donoghue rebuffed Mr. Alter's effort to use the residency issue to knock Judge Simpson off the ballot. During that litigation, Judge Simpson moved to have Mr. Alter removed as Surrogate Johnson's lawyer on the ground that he had a conflict of interest because he had represented Judge Simpson in her Civil Court campaign. Justice O'Donoghue rejected that claim, finding that two different Brooklyn apartments were at issue in the 2003 and 2007 campaigns. Judge Simpson claims it cost her $100,000 in legal fees to stay on the 2007 ballot. Judge Simpson initially filed her lawsuit in Manhattan. But Mr. Alter successfully sought to move the case to Nassau County because none of the parties resided in Manhattan and he lives in Nassau. Both Mr. Alter and Surrogate Johnson asked Nassau Justice Thomas P. Phelan to dismiss the suit under the doctrine of collateral estoppel because Justice O'Donoghue had already decided the disqualification issue. Justice Phelan, however, let the suit go forward, ruling that the disqualification claim had not been "material" to the resolution of the 2007 election law dispute. Mr. Alter, but not Surrogate Johnson, has appealed the issue to the Appellate Division, Second Department. In his Second Department brief, Mr. Alter refers to a Daily News article written during the 2007 campaign in which Judge Simpson's husband, Jacob Walthour Jr., who at the time was her campaign manager, is quoted as saying that the couple moved to New Jersey to "obtain the best healthcare for a child born with developmental challenges." In addition to the Daily News article, Mr. Alter's appellate brief points to publicly available documents in the record as supporting Surrogate Johnson's legal and campaign position in the 2007 litigation that Ms. Simpson lived in New Jersey. The documents cited in Mr. Alter's brief were an entry from a Verizon directory listing her phone number and address; an Internet post on a New Jersey middle school district's Web site, revealing that Judge Simpson had made a contribution to the school's PTA; and a deed listing Judge Simpson and Mr. Walthour as the co-owners of the South Orange home.