Attorneys for the state must respond by today to new allegations that crucial emails in a lawsuit brought by the owners of the Wandering Dago food truck were improperly deleted.
Attorneys for the controversially named food truck filed papers last month in U.S. District Court expanding their contention that the state failed to preserve emails relevant to the case.
In a letter filed Feb. 20, food truck attorney George Carpinello cited a Feb. 6 deposition of the governor’s top racing adviser, Bennett Liebman, as well as documents produced by others that indicate emails were improperly destroyed. Carpinello called for court sanctions against the defendants in the case.
“Plaintiff has been severely prejudiced by the destruction of documents that could have shown the extent of the involvement of high state officials in adverse actions against Wandering Dago by state agencies,” Carpinello wrote.
The owners of the Wandering Dago sued NYRA and the state in federal court in August 2013, alleging their First Amendment rights to free expression were violated when they were prevented from doing business at the Saratoga Race Course and the Empire State Plaza in summer 2013. They sought $350,000 in damages for lost sales.
The lawsuit, filed in U.S. District Court in Albany, named state Commissioner of General Services Roann M. Destito and several other OGS officials, as well as NYRA and NYRA officials, including President and CEO Christopher K. Kay. The NYRA defendants have since settled their end of the case, agreeing to pay $68,500 and admitting no wrongdoing.
The dispute centers around the food truck’s name, seen by some as offensive to Italians. The truck’s owners, Andrea Loguidice and Brandon Snooks, have contended it is not intended to be offensive.
Assistant Attorney General Colleen D. Galligan, representing the Office of General Services defendants, wrote in November that her clients had no control over Liebman’s emails.
The issue of the emails first came up in November when Carpinello initially asked for sanctions. But the judge for the lawsuit, Magistrate Judge Randolph Treece, found it was too early to issue a final ruling on sanctions then. That should ultimately be left for the trial judge, he ruled.
Treece also observed the lawsuit is against individuals of one government agency, while the emails were in another government agency. Liebman is not a defendant in the suit, nor is his agency, the New York State Gaming Commission, Treece noted then.
Liebman testified in the February deposition that he was surprised the emails relevant to the suit, as well as a Freedom of Information Law request by The New York Times, were not preserved.
“I had assumed incorrectly that the Governor’s office would preserve documents that had been the subject of a FOIL request, but apparently that was not the case,” Liebman testified.
Carpinello emphasized that passage in his letter to the court asking for sanctions against the defendants.
He noted an email exchange produced by the New York Racing Association at an early court appearance. NYRA also produced later an email chain concerning Wandering Dago that included several state employees from the Office of General Services, Department of State and Executive Chamber, Carpinello wrote.
“Mr. Liebman testified that he was never directed by counsel to take steps to preserve any emails until long after they would have been automatically purged,” Carpinello wrote, “despite general awareness in the Executive Chamber that these documents would very likely be the subject of litigation. We believe the indisputable evidence of spoliation calls for the imposition of sanctions.”