Ash v. Board of Managers of The 155 Condominium

Can a court bar an owner’s representative who sues a condominium for repeatedly sending letters to the condominium and unit-owners that contained disparaging remarks and address discovery issues, or is this speech protected by state and federal constitutions? That was the issue in Ash v. Board of Managers of The 155 Condominium.

Allan Ash was co-executor of the estate of plaintiff Ruth Mishkin and, upon her death, substituted as plaintiff in an action seeking damages from the condominium, individual board members, and the former managing agent for breach of fiduciary duty and improper use of condominium funds. The action also sought an accounting.

Evidence suggested that from 2003 until October 2006, Ash wrote well over 50 letters and/or publications that were circulated to the board and, in many cases, condominium owners and tenants. Some of the letters included the following: “Yesterday you got another lying letter”; “I have never in my life met such a group of liars and immoral people as I have met in the administration of this Condominium”; “Slime mixes with slime”; “[A board member] is the most polished liar”; “I was fooled when I voted for [a board member]. Within 40 days I learned that [the board member] was a dishonorable creature”; “The Condominium’s money has been spent for self-serving purposes for the benefit of [certain board members] and perhaps their close friends and for cover-up of theft and misappropriation of our funds. I am certain of one thing – [certain board members] are immoral, lack integrity, and have committed acts which no doubt are illegal.”

The letters apparently included discovery demands that were made directly to the defendants and also Ash’s responses about the discovery process. They were circulated to the unit-owners and individual defendants. This led the court to conclude that Ash’s then-counsel had lost control of his client. At a court conference, the judge directed Ash to cease contacting members of the condominium with respect to the litigation and directed that all inquiries be made through counsel.

Thereafter, Ash appeared pro se. The court then stayed discovery to permit Ash to obtain counsel, as the action was derivative in nature. The court also ordered that Ash cease contacting members of the condominium with respect to the litigation, which included a prohibition against sending publications and fliers. Ash was, however, free to contact the members of the condominium with respect to new conditions not related to the litigation.

Ash thereafter retained new counsel and moved to vacate the orders prohibiting him from contacting the condominium unit-owners about the litigation, asserting violations of the New York State and United States Constitutions. The lower court acknowledged that Ash was correct to the extent that orders restraining extrajudicial comments are not generally permitted unless there is a reasonable likelihood of a serious threat to a fair trial.

However, the court noted its inherent power to control its calendar so that the court can regulate proceedings to further the administration of justice. The court did not impose restrictions on Ash as a whim, but rather they were in response to a litigant who had been using the discovery process to delay proceedings and to harass the individual defendants, their families, their neighbors, and their lawyers.

Indeed, Ash wrote one letter to a board member/defendant’s employer alleging that the defendant was “unethical, immoral and perhaps in some cases, criminal.” Further, the letter suggested that the defendant had participated in a felony.

The lower court further justified its orders by noting that Ash had made “countless demands” to see the records of the condominium which, while within his rights to do so, had become detrimental to the discovery process. The letters to defendants or those holding records belonging to the condominium contained comments such as: “I wanted to know what records were available to me, and I wanted you to know that if the only time you would let me come in is between three o’clock and five o’clock, two hours to look at a lot of records, that I would have some trouble. The trouble would be that when I go to the toilet and come out, the two hours would be over. So what do I do? Do I take the records to the bathroom with me [ …] So, your Majesty, please ask Empty Emperor Caesar … how much time will be available to me to see the records or to sit on the toilet and audit the records?”

The lower court explained that Ash could not use the discovery process as a weapon to harass others. Accordingly, on the motion to vacate the prior order, the lower court stated that, while it may have erred in barring Ash from voicing his opinions to board members, it certainly did not err in barring Ash from communicating directly with the defendants or entities that hold the records Ash sought.

The lower court further cautioned Ash that while he was free to speak his mind, words have consequences and may be actionable. Finally, the court sent all discovery issues to a special referee.

Ultimately, the lower court issued an order prohibiting Ash from directly contacting any of the litigants involved in this matter for the duration of the action. “Any communications, questions, assertions of opinion, discovery demands, etc., must be presented to [Ash’s] counsel, who shall then present said communications, questions, assertions of opinion, discovery demands, etc., to counsel for the defendants. Within three days of receipt, counsel for defendants will present said questions, assertions of opinion and discovery demands to the defendants.” Further, the lower court vacated its prior order that restricted Ash’s contact with the members of the board.

Ash appealed and the appellate court reversed the lower court. It explained that a “prior restraint” is “a law, regulation or judicial order that suppresses speech – or provides for its suppression at the discretion of government officials – on the basis of the speech’s content and in advance of its actual expression and it has long been established that such restraints are the most serious and the least tolerable on First Amendment rights.”

“To justify suppression of free speech, there must be reasonable ground to fear that serious evil will result if free speech is practiced.” Thus, prior restraints upon speech and publication “may only be overcome upon a showing of a ‘clear and present danger’ of a serious threat to the administration of justice.”

The appeals court determined “on the record before us” and “at this juncture” that defendants did not meet their heavy burden or that Ash’s “numerous, unnecessary and vexatious ramblings” compromised defendants’ right to a fair trial.

However, the court also directed that the motion court set and enforce an expedited discovery schedule.