NY Court Holds Trump’s Feet to Fire in Suit by Zervos

Summer Zervos leaves a New York appeals hearing on Oct. 18, 2018. The court ruled Thursday that President Donald Trump isn’t immune from a defamation lawsuit filed by the former “Apprentice” contestant. In 2016, after Zervos accused Trump of unwanted kissing and groping, Trump called her a liar. (AP Photo/Mary Altaffer, FILE)

MANHATTAN (CN) – In a stinging rebuke of President Donald Trump’s assertion of immunity, a New York appeals court ruled 3-2 Thursday to advance defamation claims by ex-“Apprentice” contestant Summer Zervos.

Trump “interpretation conflicts with the fundamental principle that the United States has a ‘government of laws and not of men,’” Justice Dianne Renwick wrote for the majority.

“Despite the suggestion in his brief that he is the ‘embodi[ment of] the Executive Branch,’ and though he is tasked with significant responsibilities, the President is still a person, and he is not above the law,” the ruling continues.

Zervos came forward in 2016 with allegations that Trump kissed and groped her without permission a decade earlier, but her lawsuit hinges on whether Trump defamed her by calling her a liar during his presidential campaign.

Mark Kasowitz, an attorney for Trump with the firm Benson Torres, has attempted repeatedly to nix the complaint, arguing that the Supremacy Clause of the Constitution protects Trump from state court exercising “direct control” over a sitting president.

But the assertion fell flat Thursday with the Appellate Division, First Department.

“We reject defendant President Trump’s argument that the Supremacy Clause of the United States Constitution prevents a New York State court – and every other state court in the country – from exercising its authority under its state constitution,” Renwick wrote. “Instead, we find that the Supremacy Clause was never intended to deprive a state court of its authority to decide cases and controversies under the state’s constitution.”

Trump also tried a new tack on appeal: insisting that the “accusations cannot constitute defamation as a matter of law” since many of his statements did not refer to Zervos by name.

Renwick shot this maneuver down, however, noting that “a denial, coupled with the claim that the accuser is or will be proven a liar, impugns a person’s character as dishonest or immoral and typically crosses the line from nonactionable general denial to a specific factual statement about another that is reasonably susceptible of defamatory meaning.”

Justices Troy Webber and Cynthia Kern concurred with Renwick’s opinion, while Justice Peter Tom joined a partial dissent by Justice Angela Mazzarelli.

In her opinion, Mazzarelli advocated for staying the action until Trump leaves office. 

“While the court’s need to order the president of the United States before it so he can answer to contempt charges is hypothetical, the even remote possibility of such an event elevates an arm of the state over the federal government to a degree that the Supremacy Clause cannot abide,” Mazzarelli wrote. “While I have no reason to doubt that the court would demonstrate extraordinary deference to defendant and no reason to believe that defendant would not cooperate in the litigation, there is no way to be absolutely certain that the court would not at some point have to take steps to protect its own legitimacy.”

Trump attorney Kasowitz said Thursday he plans to appeal to New York’s highest court,  “which we expect will agree with the dissent.”

“We respectfully disagree with the majority decision in the Appellate Division,” Kasowitz said. “We believe that the well-reasoned dissenting opinion by 2 of the 5 justices, citing the U.S. Supreme Court decision in the Clinton v. Jones case, is correct in concluding that the Supremacy Clause of the U.S. Constitution bars state courts from hearing cases against the president while he or she is in office.”

Zervos’ attorney Mariann Wang commended the majority decision to move the case forward to discovery. “We are very pleased that the First Department has affirmed once again that defendant ‘is not above the law,’ said Wang, an attorney with Cuti Hecker Wang. “We look forward to proving to a jury that Ms. Zervos told the truth about defendant’s unwanted sexual groping and holding him accountable for his malicious lies.”

Judge Jennifer Schecter, who refused in March 2018 to dismiss or otherwise delay the defamation complaint in Manhattan Supreme Court, set the deadline for all party and nonparty depositions to be completed by June 28.

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