By: DANIEL WISE
Reacting to a belated acknowledgement
that a computer subject to a disclosure demand had been
discarded, a New York Supreme Court justice has struck an
answer filed jointly by a Roman Catholic priest and the bishop
of the diocese that covers Long Island.
The ruling will severely hamper, and
possibly preclude, the two clergymen and a third defendant in
contesting liability in a $10 million action against them for
libel and wrongful discharge.
Justice R. Bruce Cozzens Jr. ordered
the priest and bishop's answer stricken in Friel v. Papa,
4285/04, after the submission of an affirmation stating that
the computer was discarded more than six weeks after it had
been the subject of a discovery demand.
Patrick Adams, the attorney for the
three defendants, did not return a call for comment. Sean
Dolan, a spokesman for the Diocese of Rockville Centre,
declined to comment about the ongoing litigation.
The priest, Rev. Charles E. Papa, was
sued by the former business manager of his church, Connell
Friel, who claimed he was fired because he reported to the
Suffolk County Police Department and the bishop of the
Rockville Centre Diocese that Papa had used a church computer
to access more than 500 homosexual pornographic Web sites.
No criminal charges were subsequently
filed against Papa.
Friel also sued Bishop William J.
Murphy, who is in charge of the Rockville Centre Diocese.
Papa's church, St. Louis de Montfort, is in Sound Beach, N.Y.
In his bill of particulars, Friel
claimed he had been told a month after he had informed Bishop
Murphy in January 2003 about Papa's improper use of the church
computer that the priest had admitted visiting pornographic
Web sites and accepted administrative leave to get
professional counseling. Nevertheless, Friel alleged, Murphy
allowed Papa to resume his duties at the church six months
later.
In their answer, the three defendants
denied Friel's allegations but did not offer an alternative
theory of the case.
Cozzens' ruling striking the
defendants' answer will hamper, if not bar, the defendants
from contesting liability, procedure experts said.
Pace University Law School Professor
Michael B. Mushlin said that once the answer was stricken, the
defense would be barred from contesting liability, but damages
could still be litigated because the failure to produce the
hard drive only impacted on liability, not damages.
New York University Law School
Professor Oscar Chase said that on the issue of liability the
court would probably conduct an inquest at which Friel would
have to present evidence to establish each element of slander
and wrongful discharge.
The defense would not be permitted to
present any opposing evidence, but the question of whether
they could cross-examine any of Friel's witnesses was a more
open one, he said.
In concluding that discarding the
computer warranted the severe sanction of striking the
defendants' answer, Cozzens wrote, "the defendants'
discarding of the computer hard drive, months after the same
was demanded, has deprived the plaintiffs of the appropriate
means to confront a claim with incisive evidence."
The sanction is
"especially" appropriate, he added, because Papa had
denied Friel's claims that he had visited pornographic Web
sites by stating in correspondence that "his hard drive
was burglarized."
The reference to the burglary came
from information in Friel's bill of particulars, detailing his
slander claim. Friel claims Papa had sent an e-mail to all
members of the church's staff stating Friel had
"victimized him by burglarizing" his hard drive.
Also the bill stated that a nun associated with the church had
told parishioners that Friel had "set Papa up by placing
these Web sites on the parish computer in Papa's office."
The nun, Sister Margaret Judge, who
was named as a defendant, has since died. Kathleen Sweeney,
the assistant director of education at St. Louis de Montfort
was also named as a defendant.
Patrick Cannon of Cannon & Acosta
now represents Friel.
