The lawyer for the developer of Absecon Gardens alleges a comment posted online by a local activist has hurt his client’s standing in the community. The attorney also said the lawsuit is not an attempt to quell public opposition to his client’s controversial housing project.
Louis Niedelman, of the Atlantic City law firm Cooper Levenson, denied the suit he filed against resident Barbara Brown last month on behalf of Anthony Cappuccio, president of Boardwalk Development & Design Inc. in Margate, is a Strategic Litigation Against Public Participation, or SLAPP, suit.
SLAPP litigation is a legal strategy designed to dissolve or silence public opposition. In New Jersey, a party that is facing a SLAPP suit can countersue and seek damages.
Brown is a member of the Save Absecon Committee, which opposes the Absecon Planning Board’s 2011 decision to remove the senior housing designation for the 76-unit complex on New Jersey Avenue. The organization filed a lawsuit and a Superior Court judge upheld the board’s decision in March. The group now plans to appeal to the Appellate Division.
Niedelman’s lawsuit does not list any exact quotes from Brown but states the defendant “issued defamatory statements and information constituting libel and slander, thereby irrevocably damaging the reputation of the character” of Cappuccio.
Niedelman also wrote cease-and-desist letters to Absecon residents Joe Courter, chairman of the Save Absecon Committee, and Robert Kusnirik, a former member of Save Absecon’s core committee. The letters state Niedelman conducted an investigation and they may receive a claim in the future regarding defamatory conduct against Cappuccio.
Because of the lack of quotes listed in the suit there was speculation by Save Absecon members that it was a SLAPP suit.
Courter said the lawsuit also brought a lot of attention to the group’s cause.
“It’s energized us. Definitely,” he said. “We’re fired up now.”
In response to that claim, Niedelman, who said he did not want to try the case in the public, pointed to a post by Brown on the website for the Current newspaper in August under a story about Cappuccio and the project.
In the post, Brown states “Cappuccio is paying people off and it is quite obvious.”
But Brown, owner of the British Connection on New Jersey Avenue, said her comment was in response to the previous poster — a user named “Silent Majority” who states that Cappuccio “is claiming because he dumped 500 (thousand) in taxes in the city of Absecon and also a councilman’s concrete business is being used in the building process he can buy his way to get anything he wants.”
Brown maintains she has never said anything to defame Cappuccio. Her comments are more toward what she perceives to be leniency by the city’s planning department in allowing the structure in the city’s downtown. She said her building faced much tougher restrictions.
“I’m not saying he’s handing out bags of money,” she said. “If you read through the comments, it’s obvious what I’m saying.”
Jerry Falivene, council president and owner of J Fal Contractors, said he was hired as “a subcontractor of a subcontractor” to work on the project and Cappuccio had “no idea who I was.”
Falivene said he has recused himself from all matters regarding Absecon Gardens.
“Any notion that I made any contribution is absolutely ridiculous,” he said.
Niedelman said the comments have hurt Cappuccio’s standing in Absecon.
“People read it and said, ‘What is going on here, Tony?’” Niedelman said. “He feels damaged in that way.”
In a statement, Cappuccio called the lawsuit “a meritorious and legally sanctioned defamation claim.”
“This statement and others meet all the legal requirements to justify my lawsuit,” he said. “I also believe in the right of free speech and the notion of open government. However, Ms. Brown crossed the line with such a defamatory comment.”
Niedelman also said he has no evidence of anything defamatory said by Courter or Kusnirik but sent them the letters because they have been outspoken on the project and he was warning them not to cross the line.
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