Barnhart and McMurray Fire Back: Claims About 'Racist Party' Were "Opinions" and Not Defamation
Monroe Co. Leg. Rachel Barnhart and Well-Known Atty., Nate McMurray Seek Dismissal For Defamation Suit from Local Dentist, Nicholas Nicosia. New Documents Filed 14-15 Feb. Remain "Pending."
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A flurry of documents was filed on the 14th and 15th of February by the legal teams of Monroe County Legislator Barnhart and well-known attorney, Nate McMurray, in support of the dismissal of a 2023 defamation and tortious interference lawsuit filed against the pair.
McMurray's Attorney, Richard Soto, and Barnhart's Attorney, Michael Higgins drafted documents in support of a dismissal of all “defamation and tortious interference” claims made by local dentist, Nicholas Nicosia.
Additionally, the two defendants also filed two pieces of evidence: a picture of a tweet suggesting Barnhart—who is Jewish—was merely investigating racism as well as another copy of the infamous “Notice of Claim” unveiled by McMurray in August 2022.
The claim was filed on behalf of Rochester firefighter Jerrod Jones, who is Black.
Jones is currently the plaintiff in a civil rights suit against the City of Rochester with McMurray—who is White—representing. The Party is mentioned throughout the suit in support of a claim to a generally racially “hostile” workplace at the Rochester FD.
According to the WebCivil supreme database, the documents are still pending.
The incident first unfolded when a team of Rochester Firefighters attended a politically themed party on 7 July 2022 at the alleged urging of their crew lead, Captain Jeff Krywry. The party was hosted by Nicosia and his wife, Mary. One of the firefighters, a Black man named Jerrod Jones felt the party theme was “anti-Black and sexist,” and sued the city for discrimination making use of Nate McMurray as his lawyer.
McMurray is on the legal team of the Jewish-led Advocates for Justice Chartered Attorneys. Though they are associated, this organization differs from Advocates for Justice proper. Advocates for Justice, the politically oriented 501c3 is also based in NYC and shares similar leadership.
The July 2022 party held at the Nicoasia’s did contain some political imagery, which included a cutout of former President Donald Trump. The Nicosia’s say the decorations were of a Republican or conservative nature, while their opponents believe the themes were racist and sexist. They also claim the decorations advocate for what they perceived as “political violence.”
There are now several defamation and discrimination lawsuits pending that relate to the matter. In particular, Nicosia's suit for defamation and tortious interference is against McMurray and Barnhart together.
Barnhart's and McMurray's team have responded to Nicosia’s most recent opposition to dismissal in several ways.
One of those ways is asserting privilege, Which Soto does for McMurray. Soto claims that McMurray's quoted statements in the plaintiff's complaint either "do not accuse plaintiff of doing anything" or constitute protected opinions. Soto asserts that the statements are shielded by "Civil Rights Law § 74," suggesting immunity for statements made during legal proceedings.
Finally, Soto argues that Nicosia's characterization of a "sham" action, is tenuous as there have been no determination that the facts presented in the Notice of Claim are part of a deceptive or manipulative legal maneuver, especially given the protection of opinions under the Civil Rights Law § 74.
Michael Higgins, Attorney for Barnhart adds more to the discussion, suggesting that it's not clear which statements Nicosia desired to sue for. According to Higgins, it seems Nicosia takes issue with many statements that are "unpled." Higgins asserts that Barnhart never actually directly accused Nicosia of racism and cannot be held responsible for directly calling Nicosia what the dentist referred to as an "open racist." They further express that any definitive statements made stemmed from trusting McMurray, Jerrod Jones, and several other Black firefighters who claim they identified a racist work environment.
As McMurray is legally bound to tell the truth, the argument centers on a reasonable person having more reason to view McMurray as credible in his role as an attorney, in addition to RFD members.
Another Black client who sued a local municipality for discrimination was Irondequoit Town Council member Patrina Freeman. A client of McMurray’s, Freeman was accused by a federal judge of trying "to use the Court to advance her legislative agenda," only 5 months after the August 2022 press conference.
Freeman was also accused by multiple Town employees as well as fellow council members of threats, intimidation, and various abuses of power. Council Member and Reverend Patrina Freeman was censured by the board in November 2022 for allegedly threatening to "kill” fellow Town staff among other issues.
Freeman would appear near Barnhart in the infamous 11th of August 2022 press conference. The Black leader would receive only support from Jewish legislator Barnhart.
McMurray is also the defendant in another lawsuit from Scott Peters, a longtime public servant and current Irondequoit Police Chief. Peters alleges that McMurray defamed him by claiming he was present at the Nicosia’s party. Though again, the Peters lawsuit occurred after the bulk of the actions under review in Nicosia v. Barnhart and McMurray.
Higgins goes further, adding that many of the definitive claims made by Barnhart were either "hyperbolic" or "passionate advocacy." Essentially, Higgins argues that one could reference a face on a sign as either a poster or as a head displayed on "a spike, stake or stick," and still "the defamatory 'sting' is the same."
Accompanying the legal documents were two exhibits: yet another version of the first Notice of Claim unveiled in close proximity to the 11th of August 2022 press conference as well as a tweet from Barnhart on that day. The Tweet is from late in the afternoon and, on its own, appears to show Barnhart seeking further investigation. Barnhart claims to "smell downplaying at best and coverup at worst."
Court reconvenes on the 21st of February where Barnhart's taxpayer-funded defense is likely to either be approved or denied in a separate, but related lawsuit: Barnhart v. Monroe County.
A full dismissal of Nicosia’s Lawsuit is also another distinct possibility.
