But the private university will still be able to pursue the final count of the complaint, an action called a prima facie tort, which is a legal term for "intentional and malicious action that causes harm," for comments that were made in regard to naturally occurring asbestos at Stevens' construction site.
The suit was filed by Stevens against the Hoboken-based Fund for A Better Waterfront and its two principals. Last week, the FBW called the judge's summary judgment to dismiss the defamation counts a major victory, while Stevens believes that the case is still far from being over.
"The defamation claims were the heart of their case," said FBW's lawyer, Edward Lloyd, who is the director of the Columbia University Law School, Environmental Law Clinic. "Now they're left hanging on by a thin string that's about to be cut."
He added that the prima facie tort is "an end run," an attempt to get around the fact that the school was not successful with its defamation case. He added that they could ask the judge to dismiss the final complaint before it ever reaches trail.
But Stevens' attorney, Charles Fisher of the Princeton firm of Windels, Marx, Lane & Mittendorf, said Thursday that the litigation is far from over and that he looks forward to the possibility of arguing the prima facie tort complaint before a jury. He added that the FBW's claims of victory are premature. "They are trying to trivialize the prima facie tort, but this is a valid cause of action in New Jersey," said Fisher. "We are continuing the case, and we expect that it will go before a jury."
In March and April of 2002, Stevens blasted 35,000 tons of the green-veined serpentine rock that makes up Castle Point on Hoboken's central waterfront. It is uncontested that the rock contains some level of naturally occurring asbestos. In early April, FBW officials alleged that Stevens was not taking the precautionary steps necessary to protect the site and the surrounding neighborhood.
But Stevens contended that precautions were taken and that there was no health threat at the site. They added that Hine and the FBW created a false hazard for the purpose of defeating Stevens' development plans.
In January of 2003, Stevens filed the suit the defamation and prima facie tort against the FBW and its leaders, Ron Hine and Aaron Lewit.
The defamation portion of the suit was based on 10 statements about the asbestos issued by FBW in the form of letters to the editor, a letter to Mayor David Roberts, and postings on FBW's website.
At hearings on June 30 and July 8, the judge said that seven of the 10 statements were not capable of being defamatory. That is, Stevens could not be capable of proving to a jury by "clear and convincing evidence" that the statements made by Hine and Lewit are verifiably false and were made with malice.
Of the three statements that remained, the judge ruled Tuesday that there was not evidence that Stevens was damaged by the statements, which is a requirement in a defamation suit. "We think the judge got it wrong," said Fisher, who said an appeal is possible. He said the school is seeking at least $1.3 million in damages in addition to legal fees and punitive damages. "The defendants embarked on a scheme to damage Stevens without justification by making false and malicious statements, and [the prima facie tort] will enable us to collect at least $1.3 million," said Fisher.
Stevens' spokesperson, Cass Bruton-Ward, added that Stevens still has a strong position in the suit.
"The defendants have relentlessly called this suit frivolous, but the action by the judge this week does not at all support those claims," she said. "This case is still very much alive." In a statement of FBW's website, Hine's lawyer, Renee Steinhagen, who is the executive director of the New Jersey Appleseed Public Interest Law Center, said that the ruling was a victory for the right of the public to comment on what is going on in their community.
"The judge has delivered a fatal blow to Stevens' lawsuit against a public advocacy organization," said Steinhagen. "She upheld the constitutionally protected right to speak freely on a matter of public concern. This will put an end to Stevens' attempt to silence and intimidate those who dare to criticize its development plans."