“Your time is limited, so don’t waste it living someone else’s life. Don’t be trapped living with the results of other people’s thinking. Don’t let the noise of other’s opinions drown out your own inner voice. And most important, have the courage to follow your heart and intuition.” “Be yourself. Love yourself. Show others that you love them. And live your life to the fullest every single day.” - Kim O’Neill
I am quoting this article here as a person who works for a non-profit, community service agency, who makes barely above minimum wage (in spite of having a number of advanced degrees) and who has paid over $100,000. thus far to fight absurd, frivolous and abusive lawsuits brought against me by a cult.
year, New York State Comptroller Thomas P. DiNapoli reported that
nonprofits in New York employ nearly 1.3 million people, representing more than
18 percent of all private employment in the state. In New York City alone,
human service organizations—those focused on the overall quality of life of
local populations, and often addressing the most economically
intractable and politically unappealing problems—employ more
than 200,000 people. Yet despite the importance of these
institutions to employees and the people they serve, many nonprofit workers do
not earn a living wage.
United States, nonprofits struggle to
pay competitive wages, especially in the human services sector. New
York nonprofits have the
third-highest prevalence of low wages in the private sector,
behind food service and retail. This is in spite of the fact that its human
services workforce is highly skilled and highly educated—two-thirds of workers
have some college education, and close to half hold bachelor’s degrees or
higher. One factor in the widespread acceptance of these low wages may be that,
across the state, 82 percent of these workers are women, and 50 percent are
people of color. Both of these groups typically earn less than their
counterparts who are white, male, or both. Both women and people of color also
tend to come into our workforce with higher levels of student debt, making low
pay all the more burdensome.
effects of poor pay are wide-ranging and institutionalized, and they pose an
existential threat to the nonprofit sector as it currently exists. Following
the sudden bankruptcy of Federation Employment and Guidance Service (FEGS) in
2014—an 81-year-old, $250 million human services nonprofit in New York City—the
Human Services Council’s Commission on Nonprofit Closures reported that
the systematic underfunding of nonprofits has led to “salaries so low that many
nonprofit employees depend on safety net programs, such as food stamps and
Medicaid. It also results in inadequate investment to keep facilities safe and
in good repair.” Ann Goggins Gregory & Don Howard describe this
underfunding as a “starvation
cycle,” where nonprofits settle into a “low pay, make do, and do
is bad for everyone—for children and families, for communities, and certainly
for employees. It is also frustrating for public agencies charged with
achieving results via contracts with the nonprofit sector and for the taxpayers
who foot the bill.
So how did
we get here?
to poverty in American politics generally—and in public child welfare
specifically—has always been influenced by the widespread understanding of
poverty as primarily a moral and personal failing, rather than a structural
issue. Child and family poverty, and the policy levers pulled in response to
it, have also been marked by
significant racial inequity. Throughout its history and up to the
present day, the United States (to a greater extent than other developed
countries) places strict means testing on its safety net, requiring that
families demonstrate great need prior to receiving assistance. We must
understand strict means testing as a policy strategy, then, within this
politically and morally charged historical context.
provides insight into the old adage (widely attributed to the civil servant and
Great Society architect Wilbur J. Cohen) that “a program for the poor is just a
poor program.” The efficacy of means testing as a policy approach is debatable,
but the record is nuanced, and entangled with a variety of demographic and
economic factors. Nevertheless, case studies dating from the 19th century
to the present day—including the institutional failures of the poorhouse movement,
the rise and fall of mothers’ pensions in the early 20th century, and, more
recently, the ferocious backlash against many War on Poverty
programs—demonstrate how this segregation of programs for the very needy
creates negative stereotypes and connotations. Programs designed (or perceived
to be designed) exclusively for poor or marginalized populations tend to be
politically vulnerable and viewed with scorn, and tend to convey this scorn and
stigma to recipients through their resources, administrative structures, and
A 2006 paper
by Jennifer Stuber and Mark Schlessinger showed that the stigma associated with
means tested programs may also disproportionately impact people who are members
of racial minorities. One of the reasons we see such disregard for the
sustainability of the nonprofit sector—which in many places is the primary venue
for poor Americans to receive assistance—is the trickle-down of these
pejorative attitudes to our own workforce. The result is a stigma around
market-rate compensation for personnel at all levels of nonprofit and charity
organizations, as noted in recent
articles chronicling the high turnover at leading nonprofits in Chicago
In New York
City, as in other places, this dynamic is currently exacerbated by a wide gap
in the treatment of public sector employees and their nonprofit counterparts.
While the city has rightfully taken steps to increase compensation for its own
employees working in challenging front-line jobs, it has neglected to do the
same with its nonprofit partners, which compose a much larger percentage of the
front-line workforce. Some community-based service contracts in New York City
have not seen a reasonable rate increase in a decade, even as costs have risen
steadily across the board.
In a famous
2006 comparison of
the labor practices of Sam’s Club and Costco, management professor
Wayne Cascio demonstrated how better pay and more generous benefits in the
retail sector could actually improve the bottom line by reducing turnover and
supporting improved productivity. Readers recognized that the Costco model was
good for everyone—the organization, workers, and consumers. Why would we not
apply the same thinking to our sector?
this cycle is a challenge, but we must face it. Public and private funders must
send the message that living wages for workers in the nonprofit and human
services sector are a priority—particularly when state and local budgets are
stretched thin, there is an emphasis on cost containment in public contracts,
and individual agencies do not have the leverage to push back. Similarly,
foundations and private donors often focus on efficiency and cost-per-outcome
when making awards. Neither of these perspectives are wrong; human services
agencies should focus on achieving measurable outcomes, and public agency
administrators have a responsibility to tax payers to spend their dollars
wisely. However, we hope funders also keep in mind the high cost of low wages:
systematic devaluation of the nonprofit employee! Fiscal responsibility and
efficiency need not be synonymous with poverty wages.
To this end,
we applaud the Ford Foundation’s willingness to challenge what it calls “the overhead
fiction,” where “foundations, governments, and donors force
nonprofits to submit proposals that do not include the actual costs of the
projects.” The foundation commits to providing 20 percent in overhead going forward—an
amount we agree fully funds the cost of indirect operations.
and private funders are also beginning to deploy performance-based funding,
social impact bonds, capitated rates, or other financing models. Some of these
approaches show promise, and we try to embrace them whenever possible. But it
can be difficult for many nonprofits to assume the level of risk inherent in
these contracts when finances and administrative bandwidth are already
stretched to the limit. We believe that returning the sector to a baseline of
financial health is a necessary first step to reap the benefits of these new
funding models, and that outcome measures must be designed with client and
community priorities in mind, not just bottom-line savings.
We hope to
see much more progress in this area. Ultimately, the “low pay, make do, and do
without” culture sends a message to the children and adults the nonprofit
sector serves. What does the system say about your worth if the person helping
you is paid so little they need public assistance to feed their own family?
Owning our story can be hard but not nearly as difficult as spending our lives running from it. Embracing our vulnerabilities is risky but not nearly as dangerous as giving up on love, belonging and joy - the experiences that make us the most vulnerable. Only when we are brave enough to explore the darkness will we discover the infinite power of our light.
The leader – the guru – of the cult Leahy fled is Appellant
Sharon Gans. A handful of Leahy's
experiences as a member of the Gans cult are recounted in her affidavit
submitted below on the motions to quash at issue on this appeal. See R. 65-74.
Like others who had left Gans – and who are named as co-defendants in the underlying action – Leahy posted comments, opinions and statements of fact
about Gans and various cult members in internet blogs. Those postings led, in fairly rapid
succession, to five separate lawsuits filed against Leahy by active cult
members in five separate New York counties. None of the plaintiffs was Gans – who followed
the cult litigation playbook by remaining behind the curtain. Four of the five suits
have been dismissed. Only this frivolous
defamation action, by wealthy cult member and publicly outspoken financial investor
and money manager Joseph Stilwell, remains pending.
One of the dismissed suits was filed by cult member Conrad
Fischer, who resurrects himself here as Gans's "treating physician"
and opines that she is far too old, far too sick, far too fragile, to withstand
the rigors of a deposition. Apparently smelling an odiferous rat, the
court below exercised its discretion and discounted what it sensed – logically
and appropriately – was a sham affidavit. So, too, should this Court.
Appellant takes 33 pages to assert the same handful of
"abuse of discretion" arguments over and over and
over again, as if repeating them makes them more cogent:
•that Gans is too old, sick and fragile;
•that Gans – the financing of whose luxurious apartment at
New York's Plaza Hotel is the subject of Stilwell's defamation claims – knows nothing
about how her residence was purchased and possesses no documents about the
•that it is Leahy – rather than Gans and her five suit-filing
followers – who is engaged in a vendetta borne of "animus";
•that Leahy "admitted" her sole intention in
seeking Gans's deposition was to harass her and to force Stilwell to withdraw
his complaint – although the record is clear that the simple and reasonable predictionGans wouldinstruct Stilwell
to do so was made by Leahy's counsel, who has spent more than a decade
litigating against cults;
•that notwithstanding the Court of Appeals 2014 decision in Kapon v. Koch, 23 N.Y.3d, 32 (2014), the court below should have ordered
Leahy to submit written interrogatories to Gans or to rely on testimony from
Stilwell – whose position about the financing of Gans's apartment is implicit
in his complaint – rather than compel the deposition of the only other person
with first-hand knowledge of the facts;
•that instead of limiting the documents subject to subpoena, the
court below authorized a “fishing expedition” – a cliché Appellant typed at
least a dozen times – notwithstanding that Gans claims she has no documents
that could be “fished,” and notwithstanding her failure, twice, to fulfill her
obligation to demonstrate the “utter irrelevance” of those documents and
instead to suggest that the obligation to make this determination fell on the
•that Leahy has not produced “a scintilla of evidence” to
support her assertions about Gans, Stilwell and Gans’s other followers,
notwithstanding the sworn statements in Leahy’s Affidavit and exhibits (R.
None of those
challenges to the basis
upon which the court below denied Gans’s motion to quash suffice to establish an abuse of discretion. The order appealed from should be
Did the court below abuse its discretion in denying a motion
to quash the subpoena:
found that “the Subpoena adequately provides notice of the reasons and
circumstances that the information sought is required (R.3);
found that Gans had failed to “demonstrate[e] or actually stat[e] how and why
this discovery is utterly irrelevant” and instead found “based upon a review of
the Subpoena, the motion papers including exhibits, and the underlying court
documents . . . that the requested information is relevant” (R.4);
·When its reference to review of “the motion
papers including exhibits, and the underlying court documents” (R.4) implicitly
acknowledged it had made a reasonable credibility determination and rejected
Gans’s and her cult-member “treating physician’s” claims about her inability to
testify due to ill health.
STATEMENT OF FACTS
Leahy notes at the outset that Appellant’s “Statement of
Facts” is hardly that.Instead, along with
references to the record on appeal, it inserts largely irrelevant procedural
history and argument.It is peppered
with alleged and often unproven factual assertions outside the record, and with
self-serving rhetorical flourishes attacking Leahy (“portraying herself as a
crusader,” “self-created speculative theories,” “overwhelming animus,” “vindictive comments,” “incredible claims,” “ulterior
motives”).Although several of
Appellant’s facts are unproven and untrue, because they are outside the record
and irrelevant to adjudication of this appeal, Leahy will not burden the Court by
reciprocally ignoring the boundaries of the record to refute them.
These relevant facts should be considered on this appeal.
was a member of Gans’s cult for over 18 years.R.65, ¶1.
was also a member, and remains a member of Gans’s “inner circle.”R.65-66, ¶2; R.67, ¶7.
gave approximately $246,000 to the cult during the years of her
membership.R.66, ¶¶4, 9.
cult’s leader, Gans “authority is unquestioned and omnipotent,” and she issues
orders and instructions to her followers.R.65, ¶1; R. 67, ¶6.
was sued by five cult members, including Conrad Fischer (R. 67-68, ¶7), whose
“medical opinion” was submitted below to assert that it is “unbearable” for
Gans to engage in even routine activities, and she could not bear the
psychological and emotional strain of testifying.R. 84.
a history of using medical excuses to avoid providing testimony.R. 70, ¶14.
five remaining claims asserted by Stilwell against Leahy, three relate to
Stilwell’s role in acquisition of Gans’s apartment.R. 81. ¶8.
has produced documents establishing that Gans’s apartment is owned by an LLC at
Stilwell’s address (R. 69, ¶12; R.72-74).Appellant’s June 1, 2016 affidavit for the first time admits that Gans
and Stilwell are partners in the LLC.R.107, ¶2.
published comments alleged to be defamatory claim that “Joe [Stilwell] either
laundered the money for her [Gans] and funneled it through a ‘corporation’ to
make it legal or he paid for it outright.”R. 69, ¶11.Documents and
testimony Leahy seeks from Gans should establish the substantial truth of that
statement.R. 25, Requests 1, 2, 4, 5,
6.One document request in the subpoena should
establish Gans’s role in orchestrating Stilwell’s lawsuit, and those brought by
four other cult members.R. 25, Request
3.That is an appropriate request to
explore, inter alia, the basis for
a potential claim of frivolous litigation, and the bona fides of Stilwell’s assertion of damage to reputation.
court below found that “the Subpoena adequately provides notice of the reasons
and circumstances that the information sought is required (R.3).
court below found that Gans had failed to “demonstrate[e] or actually stat[e]
how and why this discovery is utterly irrelevant” and instead found “based upon
a review of the Subpoena, the motion papers including exhibits, and the
underlying court documents . . . that the requested information is relevant”
court below had placed Appellant on notice of its obligation to demonstrate
“utter irrelevance” when it ruled on the first subpoena addressed to Gans.R.39.Further, the court stated pointedly that “Gans’s claim that she . . .
has no knowledge of anything related to this lawsuit is purely self-serving.”Id.Nevertheless, as
noted immediately above, the court held Appellant had repeated her failure to
demonstrate irrelevance when she moved to dismiss the second subpoena.R.4.
court below implicitly acknowledged it had made a reasonable credibility
determination and rejected Gans’s claims about her inability to testify due to
ill health, and those of Conrad Ficher, her cult-member “treating physician.”R.4.
his decade-long experience in litigating against cults, and assessing the
credibility of Leahy’s reports of Gans’s total control of her followers, Leahy’s
counsel, rather than Leahy, predicted that an order requiring Gans to testify will end Stilwell’s
lawsuit, “because Gans will order Stilwell to withdraw it.”R. 48-49, ¶19.Although Appellant spews the charge
repeatedly, Leahy neither made any “admission of improper motivations” nor
sought to depose Gans for “personal retribution,” from “visceral hatred,” “admitted
hatred,” or to “blackmail” her (see, e.g., Appellant’s Brief (“App. Br.”) at 2, 3, 11, 14-15, 25, 26, 33).
Leahy seeks to depose Gans as a crucial
witness to the merits of Stilwell’s defamation claims, and to explore Gans’s
role in commencing and prosecuting the several suits brought against Leahy for
exposing facts Gans wants to keep secret. The subpoena’s examination topics and document
requests are tailored to those issues.R.22, 25-26.
did not “refuse” to depose Stilwell.She
instead sought to exercise her legal right to depose Gans first, and speculated that doing so might obviate the need to
depose Stilwell.R.47, ¶15.From the outset, Leahy has made clear her
intention to position this case for summary judgment at the earliest
opportunity.Counsel’s analysis of the
outstanding claims against Leahy (see R.81),
raises the prospect that nothing more than Gans’s testimony will be
needed.Gans and Stilwell have done
everything in their power to postpone that day and make this litigation as
expensive for Leahy as possible – including by filing this appeal.
Appellant’s brief repeatedly assures the Court that Gans has no responsive
documents, Gans’s own sworn statements reveal that she has never conducted a suitable,
comprehensive search, “do[es] not know” whether she possesses certain specific
documents, “would not” have others to her knowledge, and thinks it “unlikely”
she has any communications between her and Stilwell relating to the purchase of
her apartment.R.107, ¶3; App. Br. at
counsel implicitly admitted to the court below that Gans might have communicated about Leahy, about the other lawsuits against Leahy by
Gans’s followers, and with Stilwell about this lawsuit, but claimed, ipse dixit, that such communications “would not be relevant.”R.15, ¶9.
brief repeatedly assures the Court that Stilwell has already produced all
documents about this purchase (App. Br. at 13-14; see also R.16, ¶11).However,
as counsel to non-party Gans, Appellant’s counsel is in no position to make
such a representation. Nor is it
accurate.Counsel for Leahy has
requested from Stilwell’s counsel copies of improperly redacted documents, and documents
referred to in but to this day missing from his production.And Stilwell has, incredibly, not produced a
single communication between him and Gans on any subject.R.47, ¶14.
·Leahy, who was
previously deposed during a jurisdictional discovery phase of this action, did
not “refuse” to submit to the further deposition scheduled under an instruction
by the court below.App. Br. at 4, n.4,
32, n.9.That instruction paralleled the
requirement in the Order under appeal that Gans’s deposition “shall occur on or
before June 30, 2016.”R.9.When Gans ignored Leahy’s several requests to
schedule her deposition, Leahy adjournedher own deposition,
advising Gans’s counsel that the deposition would be rescheduled she was
“advised of your intentions about scheduling Gans's deposition in accordance
with the Court's June 10 Order.”
affidavits submitted below repetitively contend that she knows and possesses
nothing relevant.Her brief in this
Court bootstraps those proclamations to argue that “[w]ild speculation without
any basis in reality or a factual predicate of relevance cannot be used to
support a request for discovery.”App.
Br. at 13.But depositions are the
typical, time-honored discovery tool for testing the assertions in affidavits.
As Appellant recognizes, the standard of review on this
appeal looks to whether the court below abused its discretion in denying Gans’s
Motion to Quash.See Matter of
Kapon v. Koch, 23
NY 3d 32, 39 (2014).Appellant lumbers
her brief, and this Court, with tens of cases that support unremarkable and
wholly irrelevant propositions.Of the
scarce citations that even begin to address relevant issues, none justify a finding that the court
below abused its discretion.
Justice DiBella evaluated the submissions on Appellant’s
motion and the underlying court documents, and concluded that “Leahy has
demonstrated that the requested discovery is material and necessary to her
defense.”R.8. He was provided with evidence that Gans’s
“treating physician” was both a member of her cult and a plaintiff who had also
sued Leahy as part of a five-pronged assault intended to silence her.So he apparently made the entirely
common-sense credibility determination that Dr. Fischer’s overheated recitation
of Gans’s supposed infirmities did not warrant depriving Leahy of access to a
Although infrequently stated explicitly in published
opinions, courts are routinely called upon to assess the credibility of documents,
affidavits and assertions submitted to solicit judicial relief.See, e.g., Tribeca Equity
Partners L.P. v. Savitt, 44
Misc. 3d 1201(A) (N.Y. Civ. Ct. 2014) (holding it was not an abuse of
discretion for the court to deny a party's adjournment request upon finding the
proffered excuse not credible; determining that a party’s excuse for
not appearing before the court was not credible, and that a party’s claimed interpretation
of language in a court-ordered subpoena was not credible).
Citing to Kapon v. Koch, supra, the
court below rejected Appellant’s several suggestions that Leahy rely upon
alternative means of discovery –including by deposing Stilwell – to obtain the
information sought by the subpoena.The
court noted Kapon’s holding (23 N.Y.3d at 38) on the requirements of CPLR
3101(a)(4), and concluded that Gans’s testimony was required because “relevant
to the prosecution or defense of an action.”R.4. All of the cases
Appellant cites at App. Br. 24-25 for the proposition that the court below
abused its discretion by declining to grant a protective order or to permit
written interrogatories in lieu of a deposition were decided before Kapon.
Even were the cases Appellant cites at App. Br. 27 without
elaboration – to argue that the court below abused its discretion by failing to
address Dr. Fischer’s extravagant claims of risks to Gans’s health –
persuasively analogous to the circumstances at bar (and they are not), the
court’s decision to discount Fischer’s diagnosis of Gans’s health as inherently
suspect was a valid, justifiable and lawful exercise of discretion.
Having twice failed to demonstrate below the “utter
irrelevance” of the testimony and documents sought by the subpoena, Appellant
attempts gamely to do so on this appeal, and futilely cites several cases
stating the “utter irrelevance” standard.But even were Appellant’s attempt in this Court untimely to demonstrate
abuse of discretion below, nothing has changed.As Justice DiBella twice found, the testimony and documents sought from
Gans are not merely relevant, they are “material and necessary” to Leahy’s
defense.R.8.Neither case Appellant cites at App. Br.
25-26, Berkowitz v. 29 Woodmere Blvd. Owners’ Inc, 23 N.Y.S.2d 352 (2nd Dept. 2016) nor Reuters
Limited v. Dow Jones Telerate, Inc., 662 N.Y.S.2d 450 (1st Dept. 1997) supports a
finding here that because the court below declined to “protect” Gans, it abused
its discretion.The court below rejected
Appellant’s protests of overbreadth, annoyance, embarrassment and burden.So, too, should this Court.
Finally, if the Court concludes that further deference to or
consideration of Gans’s actual physical condition is warranted, we respectfully
suggest it should remand to the court below, to conduct such further
proceedings as it may deem appropriate, such as ordering that the deposition be
taken at Gans’s bedside or that she submit to a physical examination by a
physician appointed by Leahy or by the court.
The Order appealed from should be affirmed, with costs.
Dated: March 29, 2017
PETER L. SKOLNIK
Attorneys at Law
20 Church Street
Montclair, New Jersey 07042
242 West 36th Street, 9th
New York, New York 10018
Attorneys for Defendant-Respondent
APPELLATE DIVISION - SECOND DEPARTMENT
CERTIFICATE OF COMPLIANCE
I hereby certify pursuant
to 22 NYCRR § 670.10.3(£) that the foregoing appellant's brief was prepared on
a computer using Microsoft Word 2016.
proportionally spaced typeface was used, as follows: Name of typeface: Times New Roman
PETER L. SKOLNIK
Attorneys at Law
20 Church Street
Montclair, New Jersey 07042
242 West 36th Street, 9th
New York, New York 10018
One claim absurdly alleges defamation
based on Leahy’s rhetorical hyperbole calling Stilwell a “snake oil
salesman.”Another asserts invasion of
privacy based on a wholly unproven and refuted allegation that Leahy revealed
“contents of Plaintiff’s confidential divorce agreement.”R. 81, ¶8.