Last June, when former Putnam County district attorney Adam Levy and Sheriff Don Smith reached a settlement in connection to Levy’s defamation lawsuit against him, it appeared the war between the two political enemies had finally ended.
But it appears the legal battle will drag on.
Levy is seeking liquidated damages and award of attorneys’ fees for violation of the settlement agreement’s non-deprecation clause against Smith, according to legal papers filed by his attorney Michael Sussman last week. The motion would force Smith to pay at least $50,000 on top of legal fees incurred by Levy pertaining to comments made by Smith and his legal team over the last month.
Levy sued Smith shortly after the longtime sheriff sent press releases in March 2013 claiming Levy interfered with the Alexandru Hossu rape investigation
and harbored Hossu, who was in the country illegally, at his house. This past June Smith admitted those statements provided to the public were untrue and that he shouldn’t have made them. A settlement was reached in which the county paid $125,000 from taxpayer funds and Smith paid $25,000 out of his own pocket.
Hossu was found not guilty on the rape charges in 2014 and is suing the county for $45 million.
Smith, who has served 16 years, is up for reelection this year against Democratic challenger Robert Langley, a retired sheriff ’s investigator.
Sussman wrote in a legal brief that Smith and his attorney, Adam Kleinberg, made statements that undercut Smith’s retraction and as a result denigrated Levy by suggesting that Smith had factual basis to issue the damaging 2013 press releases about Levy.
Instead of Smith acknowledging he retracted false statements, he and his attorney have put forward discredited information, Sussman wrote, and pushed forward an “abandoned perspective” that Smith had reason to think the false claims he asserted against Levy were true.
“Suggesting that those statements had a factual basis when made and that Mr. Smith only voluntarily retracted them when faced with contrary evidence undermines the apology and retraction and thereby suggests that Smith had evidence supporting the since retracted
statements when Smith published his press releases in March 2013,” Sussman wrote. “However, Smith already has admitted he had no such evidence.”
Sussman cited three instances where he believes Smith violated that non- deprecation agreement between the two sides.
Two instances are when Smith said in statements to The Putnam Examiner and the Putnam Daily Voice that “Each and everyday I strive to tell the truth and if I later learn new information, I make the correction,” in response to a press conference Langley held about seemingly debunked statements Smith sent to New York State and federal officials about Levy’s conduct while in office.
Another instance Sussman cited is when Kleinberg said, “In the years that followed, the Sheriff was embroiled in a very public lawsuit. He was deposed over the course of several days and responded candidly when he could not recall specifics about documents that were not in front of him. He testified to the best of his ability, even while watching his wife losing her fight with cancer on a daily basis. When the dust settled, and all of the information was in front of the Sheriff, he apologized to Levy for certain statements made based on what was known to him at the time.”
Kleinberg dismissed the idea that the non-disparagement clause was broken.
“There was no violation of the settlement agreement,” Kleinberg said. “The timing of this motion, less than two weeks before the election, is inescapable. I intend to file a cross-motion seeking appropriate relief.”
During court proceedings in June, Sussman said in court that Smith agreed to a non-deprecation provision in the settlement agreement that disallows him from making denigrating or deprecating public comments about Levy.
Sussman said the 2013 statements Smith made were “crazy and there was never a factual basis for them.” Sussman believes Smith has “gone back on his agreement and making it seem that there was some basis for what he did” in 2013.