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$10m suit against N.Y. promoter is dismissed

February 16, 2011

By Staff Reporter

By Harry Keaney

A $10 million lawsuit brought by two West of Ireland men against New York concert and events promoter Gertrude Byrne arising from the festivals A Day in the Bog and A Day in Old Ireland, held in Yonkers, N.Y., was dismissed by a U.S. district court judge in Manhattan last week.

Loretta A. Preska, U.S. district judge for the southern district of New York, dismissed the case after the plaintiffs, Paul Claffey and Pat Jennings, failed to show up.

Byrne said that the judge’s decision to dismiss "with prejudice" ended the case.

Claffey, however, disagreed, saying, in a statement, "it is our full intention to appeal this decision."

But Byrne’s lawyer, Charles Bradley, said that while Claffey and Jennings could appeal, he doubted they would be successful. He added that when the case was dismissed with prejudice, the plaintiffs "can’t bring the same case again."

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Byrne said that if Claffey and Jennings choose to appeal, they "have two chances to win, slim to none."

"Their appeal, if they take it, has no merit and it too will be dismissed," Byrne said. "Not only do they not have a case, they would have to prove that Judge Loretta Preska abused her discretion in dismissing the case. Because they lost in court, they now want to try the case in the media."

Bradley said the judge did not make an order for costs, but he said he had the right, if his client wished to exercise it, to enter a judgment for legal costs. "That would not include legal fees," he said.

The case arose after Claffey, chief executive of two local radio stations in the West of Ireland and a radio show host, and Jennings, a hotelier, accused Byrne of misusing trade secrets and service marks concerning the festival idea, which, Claffey and Jennings claim, was theirs.

Claffey and Jennings claimed they had legal title to the name A Day in the Bog and Beat on the Peat, and that the festivals, held in Yonkers Raceway under the title A Day in Old Ireland in 1996, ’97 and ’98, was a breach of their copyright.

Byrne’s statement

"The dismissal was based on the fact that even though the plaintiffs had known since July 19 that the trial of the case was to commence on Sept. 8, 1999, and that the court would not allow any adjournment, they chose not to be present, having elected to stay in Ireland," Byrne said. "When the plaintiff’s attorney, Gregory A. Sioris, advised the judge at the pre-trial conference that his clients would not appear for the trial, she made the order of dismissal."

Contacted by the Echo afterward, Sioris declined to confirm that the case was dismissed with prejudice, saying he did not have a court order. However, he said the case wasn’t dismissed on its merits but on the procedural matter of a failure to prosecute.

He said he had tried to get an adjournment, but the judge indicated she would be ordering a dismissal.

Sioris said his clients had a prior engagement in Ireland.

According to Judge Preska’s order, a copy of which the Echo obtained Monday, trial in the action was set some time ago for Sept. 8. On or about Aug. 30, the plaintiff’s counsel requested an adjournment of the trial on the ground that the plaintiffs would be preparing for a legal action to take place in October in Ireland. The request was denied by order dated Sept. 2. At the final pretrial conference on Sept. 7, counsel for the plaintiffs informed the court that the plaintiffs would not appear for trial and that counsel was unable to prove plaintiffs’ case in their absence.

"Accordingly, the action is dismissed with prejudice for lack of proof," Judge Preska’s order stated.

‘Frivolous’

The case had already provoked an array of allegations and counter allegations, with each side questioning the other’s honesty and integrity.

Byrne said that the case was not only frivolous, but Claffey and Jennings "tried to win by coming in the back door."

She added that in late February 1998, Claffey and Jennings were claiming victory on being awarded an injunction against her, even though she had not been served with the complaint. Byrne said that Judge Preska instructed Sioris that if he intended to proceed, he would first have to serve Byrne with the action.

The complaint was then served to Bradley, Byrne’s lawyer, in June 1998.

Byrne said that throughout the length of this case, Claffey and Jennings "repeatedly failed to show up for the discovery process or to provide information and documents to support their allegations made in the complaint."

Byrne said that when they finally did show up for the discovery process, their claim was that she had used trade secrets revealed by Claffey and Jennings to her.

Byrne, in her statement, said that when asked by Bradley what these trade secrets were, they advised the court that they designed the piece of equipment, the JCB, that extracted the cubes of turf from the bog, and that only they had the trade secret through months of research on how to find the right texture of turf so that, when it was burned at Yonkers Raceway, would have a special aroma that was a family secret.

Settlement suggested

Byrne also said in her statement that she received several phone calls from a mutual acquaintance of the plaintiffs suggesting a settlement out of court. "It wasn’t even a consideration for me," Byrne said, claiming such actions were "cowardly with intent to intimidate."

"They never had a case to begin with," Byrne said, adding that, combined with the evidence they gave under oath in their deposition hearing, she was not surprised that they did not show up for the trial.

"While not having to sit through a trial was less stressful, it would have been interesting to see how they were going to explain testimony they had given under oath at their deposition hearing," Byrne said.

As regards the names A Day in the Bog, Beat on the Peat, or A Day in Old Ireland, Byrne said that legally she can name the event any way she chooses.

Sioris did not respond to Byrne’s written statement, but Claffey, in his statement, said the decision of Judge Preska related "to the fact that the case was not held at all in a federal court in Manhattan due to the inability of witnesses being in a position to travel to the United States."

Claffey said this was clearly signaled to the court in the weeks prior to the court date.

"Everyone knows the idea of A Day in the Bog belongs to Paul Claffey, as he was the inspiration behind this festival," Claffey’s statement claims.

"Justice will be seen to be done in this case. This does not signal the end of these proceedings but merely a postponement of the trial."

The Echo was unable to contact Jennings prior to going to press.

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