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For ex-cop's slander suit, a split decision; 8 statements by lawyer false, judge rules, but unproven criteria mean no damages

A recently retired Buffalo police lieutenant trying to clear his name over brutality allegations won vindication but no damages -- in his court battle against the attorney he says defamed him.

Gregory M. Kwiatkowski proved that eight statements made about him by attorney Anthony L. Pendergrass in 2007 were defamatory and false, according to a decision by State Supreme Court Justice Frederick J. Marshall.

Marshall found that Kwiatkowski, 47, "proved by clear and convincing evidence that the statements were false."

To win his lawsuit, however, Kwiatkowski had to prove Pendergrass knew that the statements were false when he made them or that he acted in reckless disregard of the truth, but the judge ruled that this legal threshold had not been reached.

"At most, the proof shows that Mr. Pendergrass was careless, overzealous and unprofessional," Marshall said in his decision.

Pendergrass was pleased by the decision, but not by how Marshall reached it.

The attorney maintained that Kwiatkowski neither proved that he made many of the statements nor shown that they were false.

"Ultimately, I think the judge reached the right conclusion, even if he reached it for the wrong reason," Pendergrass said. "There was no proof with clear and convincing clarity with regards to the falsity of any statement purportedly made by me." As for whether Kwiatkowski was vindicated?

"I don't see any vindication," Pendergrass said. "Vindication would have been a judge awarding him an amount of money for defamation."

Andrew P. Fleming, who represented Kwiatkowski, said, "I am, of course, disappointed and surprised by the judge's decision."

Kwiatkowski, through his lawyer, declined to comment.

The bitterness between Kwiatkowski and Pendergrass stems from a November 2006 police call during which then-Officer Cariol J. Horne jumped on Kwiatkowski's back while he was trying to subdue a combative suspect.

Horne said Kwiatkowski had put the suspect, David N. "Neal" Mack, then 54, in a chokehold. Pendergrass represented her at a disciplinary hearing, which drew wide attention.

Kwiatkowski sued Pendergrass for what the lawyer said about him on a radio show, in interviews with reporters and at a public meeting -- not for what he said about him in Horne's legal proceedings, where his comments were legally protected.

Horne lost her job after a hearing officer found that she violated departmental rules when she used physical force against Kwiatkowski.

Marshall found eight statements attributed to Pendergrass to be false.

Among them:

*The Black Star News website reported that Pendergrass said Kwiatkowski and other officers had run roughshod over Mack's home, "beating up his children."

*Kwiatkowski's suit cited an article in the Challenger, a Buffalo newspaper with a predominantly black readership, which reported that Pendergrass, at a September 2007 public meeting convened by the Buffalo Local Action Committee for the Million More Movement, said Kwiatkowski beat a suspect "with brass knuckles while he was handcuffed."

*At the same meeting, Pendergrass said Kwiatkowski "began to strangle Mack," according to the newspaper.

*In a 2007 article about Horne, the Challenger quoted Pendergrass as saying Kwiatkowski "punched her so hard he knocked loose a dental bridge that she has had for over 10 years." He also said that at the public meeting, according to the lawsuit.

*A 2007 article in The Buffalo News quoted Pendergrass as saying Horne "saved the life of a suspect who was already in handcuffs and was being choked out by Officer Greg Kwiatkowski."

*In another Buffalo News article, Pendergrass was quoted as saying Horne "broke the chokehold by Kwiatkowski."

*Pendergrass also told Mary Davis, a radio talk-show host, that Kwiatkowski "administered a brutal beating to an individual" during an arrest in a South Buffalo bar, Kwiatkowski said.

Kwiatkowski denied striking Horne or anybody else.

The judge said he considered Kwiatkowski's specific denials, as well as the fact Horne was disciplined for her actions during the November 2006 arrest.

What's more, "Kwiatkowski was not the subject of any disciplinary action with respect to any of the police brutality incidents alleged by Pendergrass," Marshall said.

As for the South Buffalo bar incident, "there is no credible evidence that such an event even took place," the judge said.

Horne's statements about Kwiatkowski and a Buffalo News article about Mack's arrest tilted the case in Pendergrass' favor.

"Whatever Cariol Horne communicated to the defendant Pendergrass is unknown," Marshall said. "However, the court may take judicial notice of the similar defamatory statements about Kwiatkowski made publicly by Cariol Horne during this same period."

In addition, a Buffalo News article reported that according to both police and witnesses, Horne and Kwiatkowski threw punches at each other, and he used excessive force to gain control over the suspect.

"There was no evidence before this court that Kwiatkowski engaged in any of the behavior alleged in this article," Marshall said.

"However, it may have provided a basis for some of the defamatory statements made by Pendergrass regarding the November 2006 incident," the judge said.

To this day, Pendergrass insists that Kwiatkowski held Mack in a chokehold.

Pendergrass is Mack's attorney in a lawsuit against the city.

"Ultimately, it matters not what this judge says," Pendergrass said. "A jury will determine whether or not [Kwiatkowski] held him in a chokehold and whether he used excessive force in the arrest of Neal Mack."

email: plakamp@buffnews.com