Leonard Link

Fire Island Blogger Immune From Defamation Liability

Acting New York Supreme Court Justice Marilyn Shafer has dismissed a lawsuit brought by prominent Fire Island Pines entrepreneur Eric von Kuersteiner against rival businessman Mark Schrader, whose company provides internet service to the heavily gay Long Island resort community. Von Kuersteiner sought to hold Schrader liable for derogatory comments about von Kuersteiner that were posted on a blog that Schrader had established as an online community forum for Pines residents. Justice Shafer found that a federal statute provided immunity for Schrader, and that in any event the comments could not be the basis of a defamation suit against the anonymous posters, because they could all be characterized as opinions protected by the First Amendment.  Von Kuersteiner v. Schrader, No. 100089/08 (10/14/2008).  Shafer’s opinion was published in the New York Law Journal on October 29.

Von Kuersteiner reportedly bought out the interest in several Pines businesses in 2004 from John B. Whyte, who had established a small business district comprising the Botel (a small hotel), a nightclub called The Pavillion, a grocery, a restaurant and some other shops. The New York Times’ Long Island edition reported in May 2004 that Von Kuersteiner was planning a major renovation and upgrading of the various businesses to "make the downtown... more of a meeting place."

Mark Schrader, co-owner of Pines Pantry and Internet Service, a rival grocery business, established a blog in the spring of 2007, named pavillion.blog, to provide an outlet for Pines residents to "post their thoughts, opinions and comments." Schrader would remove posts that he found "inappropriate," but Von Kuersteiner evidently felt that Schrader had left up too many posts that were critical of him and his businesses.

Justice Shafer’s opinion does not specify when Von Kuersteiner filed his lawsuit, but reports that Schrader deleted the entire blog on December 15, 2007, ending its operation at that time. Von Kuersteiner sued Schrader for defamation, contending that blog postings improperly attacked himself and his business. "These postings," wrote Shafer, "accuse him of, inter alia, watering down the drinks served in his bars; having an illegal septic system which created a bad smell; being unsuccessful and losing money; treating employees badly; not having a women’s restroom; selling spoiled food; ‘screwing’ a former commercial tenant out of his gym equipment; and having as a ‘stated goal’ to ‘get rid of all straights, all women, all children and all folks over 40.’"

Schrader, moving to dismiss the case, filed an affidavit stating that he did not alter any statements that were posted on his blog, although he read everything and deleted anything he believed to be "inappropriate or obscene." He swore that he was not the author of any of the posts about which Von Kuersteiner had complained.

In addition to seeking damages from Schrader, Von Kuersteiner also wanted the court to help him obtain the identity of the anonymous posters by ordering a deposition of a representative of Blog.com, which had hosted Pavillion.blog and might be able to identify the posters from its records.

Turning first to the question of Schrader’s liability, Justice Shafer found that he was shielded by the Communications Decency Act, a federal statute that protects internet service providers from liability for what third parties post on their websites, even if they exercise some editorial discretion to delete or block particular posts. Justice Shafer found that courts had unanimously interpreted the Act to bar any lawsuit against an internet service provider that was not itself generating the objectionable content.

A recent federal appeals decision from California found an exception to that immunity in the case of a roommate service that prompted users to provide discriminatory information for their postings, but upheld the general rule that somebody who merely provides a vehicle for others to express their views would not be held to be a "publisher," as that term has been used in the law of defamation.

Turning to Von Kuersteiner’s discovery request, Justice Shafer found that the law on discovery of internet users’ identities for this purpose has focused on whether the postings in question would give rise to liability for their authors. In this case, she noted, the settled law in New York is that "expressions of an opinion, false or not, libelous or not, are constitutionally protected and may not be the subject of private damage actions."

"When the less than 40 statements complained of are read within the context of the entire 300 postings of the blog, it is clear that they could not be interpreted as anything other than the opinions of the authors," wrote Shafer. "Von Kuersteiner himself describes the blog as an "Internet discussion board/blog on which participants [could] post comments about social life in the Fire Island Pines community.’ The blog is a forum of shared opinions on everything from Von Kuersteiner’s baseball cap to his architecture to the music played by the dj to the Bush administration to the passing of the ‘good old days.’ They form a dialogue in which there are rebuttals and refutations in response to previous posts. The complaint ‘sifts’ through the posts in an attempt to ‘isolate’ statements which seem to be assertions of fact. However, within the context of the blog, no reasonable person would interpret the comments as anything but the authors’ opinion."

Shafer dismissed the lawsuit, and denied Von Kuersteiner’s request for discovery of the identities of those who posted the negative comments on the blog.

Indefinite Civil Commitment for HIV+ Schizophrenic Man

The Court of Appeals of Minnesota has upheld the indeterminate civil commitment to a secure facility of David Kendall Renz, a mentally ill HIV-positive man who has tested positive for syphilis, gonorrhea and chlamydia, sexually transmitted diseases, and who has admitted that he had engaged in sex without informing his partners about his HIV status. The court reached this ruling despite the lack of any identified victim who has actually been infected by Renz. The October 28 opinion for the court by Judge Renee L. Worke does not indicate the gender of Renz’s sexual partners.  In the Matter of the Civil Commitment of David Kendall Renz, 2008 WL 4706962.

Under Minnesota law, there is a significant difference between being civilly committed as "mentally ill" and being civilly committed as "mentally ill and dangerous," as was the case with Renz. Civil commitment for mental illness is limited to 12 months, and the individual is sent to the "least restrictive treatment program" available. A person who is committed as "mentally ill and dangerous" is sent to a secure facility and the commitment may be indefinite, meaning that it will only end upon a determination that the individual no longer presents a danger to others.

Renz had previously been civilly committed as mentally ill, from May 1998 through June 1999, from October 2000 through October 2001, from March 2003 until July 2003, and then from April 2005 until October 2006, but, as the trial court noted, his behavior regarding treatment for HIV had been inconsistent. His treating psychiatrist testified that he was "schizophrenic," did not understand the nature of HIV infection, and was casual about taking medications, evidently believing that he had cured himself because he was asymptomatic. He had admitted to his doctors that he was engaging in unprotected sex. As a result of these admissions, he was tested for venereal diseases, and when he tested positive, doctors and law enforcement officials drew the obviously conclusion that his admissions were true, since at least two of the diseases he had contracted are only spread through intimate unprotected sexual contact.

Having found that Renz was engaging in sexual activity that can transmit HIV, the court decided that he was dangerous, even thought no identified victim has been located. The trial court found that there was "clear and convincing evidence" that he "deliberately engaged in unprotected sexual activity with others even though he has been diagnosed with HIV and, thus, has ‘engaged in an overt act causing or attempting to cause serious physical harm to another’ regardless of intent or the outcome of the action." When questioned, Renz freely admitted that he had engaged in unprotected sex, "at times without disclosing his HIV diagnosis to his sexual partners."

Renz was not prosecuted, even though his conduct might be characterized as criminal were he not mentally ill, but rather subjected to civil commitment. The court drew an analogy between his conduct and the act of "a mentally ill person who fires a shotgun at another or drives a vehicle into a crowd of people at 100 m.p.h." A court-appointed medical examiner, having interviewed Renz, testified that it was "pretty clear" that Renz has unprotected sex, because he said that "it would be impossible to use protection all the time." This doctor also opined that Renz did not appreciate the need for consistently taking his HIV medication because he believed he had cured himself.

Renz’s own treating physician concurred, testifying that he had treated Renz for sexually transmitted diseases, from which he drew the conclusion that Renz was engaging in unprotected sex. Another court-appointed doctor testified that if Renz were released back into the community, he would likely be "sexually active in a way that puts him at higher exposure for engaging in reckless sexual behavior, in part due to his psychiatric state." This doctor testified that Renz had admitted to him having had five or six sexual partners in the previous year. Renz’s psychiatrist testified that he did not seem to understand HIV infection and how it is transmitted. He also testified, somewhat confusingly, that Renz had told him that he told his sexual partners that he has the infection and if they do not care then he does not use protection, but evaluating the accuracy of statements is difficult due to Renz’s schizophrenia.

The court of appeals concluded that in light of all this medical testimony, the trial court "did not err" in concluding that Renz met the requirement for civil commitment as "mentally ill and dangerous." The lack of an identified victim was not a bar to the determination, in light of the obvious inferences about Renz’s conduct to be drawn from his admissions and his venereal infections.

Megill's Bach Mass at Trinity Church (Manhattan)

The Trinity Choir, at Trinity Wall Street in lower Manhattan, inaugurated its 2008-2009 concert season tonight with a performance of Johann Sebatian Bach's towering Mass in B Minor, one of the largest settings of the ordinary of the mass and certainly one of the greatest.  Guest conductor Andrew Megill led an energetic, enthusiastic performance by the talented choir and the "authentic instruments" Rebel Baroque Orchestra.  Tempi were on the quick side of normal, which I found slightly problematic in the acoustic of this church, as the polyphony tended to be blurred in the faster movements.

On the other hand, I think that today those of us who learn these great sacred choral masterworks from recordings have been spoiled for the real thing.  We are used to careful microphone set-ups and artificial balancing, such that polyphonic lines are clear and soloists are always heard, so that the chorus's articulation of the words is usually clear, even in the biggest, most congested moments, trumpets and timpani always cut through the fortissimo "tutti" moments, etc.  Well, it's not like that in a real life church acoustic, and we have to remember that Bach conceived his sacred music to be performed in a big stone church in Leipzig!!!  I'm sure what I heard tonight in Trinity is a fairer representation of what Bach would have heard at a performance of this music than what I hear at home from a high-end digital playback system.  (I don't have SACD surround at home, so I can't opine on whether the realistic church acoustic can actually be better simulated at home using that system...  I imagine it comes closer.)

Trinity Choir follows the practice of using soloists from the choir rather than engaging professional soloists.  This means that sometimes the solos are a bit weaker than one would expect from learning a work on records, but not always.  There are some real standouts in that choir.  Tonight, I was particularly taken by the work of bass soloist Charles Wesley Evans, who sang what I always think of as the "Gilbert and Sullivan number" from the Mass - the gently rocking 6/8, barcarolle-like setting of "Et in Spiritum Sanctum" from the Credo.  This was done as effectively as one could imagine, as Evans' voice suavely interwove with the dueting baroque oboes of Debra Nagy and Meg Owens.  Sublime!

The Trinity series is worth catching.  They are doing two complete Messiah performances in December, also with Megill conducting, and three concert programs in the 2009 portion of the season: the fantastic Frank Martin Mass for Double Choir plus Scandinavian choral works on February 3, led by Stefan Parkman, who will be familiar to fans of Chandos' choral recordings, a trio of Baroque sacred works on March 24 led by Megill (including the wonderfully moving Membra Jesu Nostri by Buxtehude), and a program of Latin American baroque sacred music on May 12 to be led by a mystery guest conductor.  Unfortunately, my teaching schedule spring term means I have to miss the February and March programs... but Trinity also makes these programs available from their website by delayed broadcast, so I may get to hear them "off-site."  This series deserves to be better known -- but the church won't seat many more folks than are already showing up, to judge by the full house tonight for the Bach.

Passionate Pollini in Carnegie Hall

This afternoon's recital by Italian pianist Maurizio Pollini at Carnegie Hall was marked by passion as well as his usual brilliant precision.  Indeed, I was a bit surprised, having found his performance of the Schumann Piano Concerto with the Boston Symphony on Monday night to be more in line with his reputation for cold objectivity.

Well, objectivity was hardly the description for his playing this afternoon.  Unfortunately, I was betrayed by the NYC subway system (a half hour wait for an A train at Chambers Street) and thus arrived a few minutes too late to claim my Balcony front row seat for the opening of the program.  By the kindness of the Carnegie ushers, I heard Beethoven's Tempest Sonata (Op. 31, No. 2) from the stairwell at the back of the balcony.  It was like overhearing a performance from the next room, but with the door partly open.  Even so, I could tell that something extraordinary was going on in the hall.  And that was confirmed when I got to my seat for Beethoven's Appassionata Sonata (Op. 57), which concluded the first half.  Wow!  Of course, all the precision, power, careful articulation and balance for which Pollini has been celebrated through a lengthy career, but also passion in plenty.  I don't think I've ever heard the first movement more powerfully and cogently played.  He took it at a fairly fast clip, but one never had the feeling of skating across the surface of the music.  He was really dug in well, and pulled out all the drama.  The middle movement was eloquent, the final a true presto and wonderfully exciting.

Could he keep it up for the second half?

By comparison, I thought the fires glowed a little lower through the Schumann Fantasy in C, Op. 17.  This is not my favorite Schumann, as I find the first movement rather formless, the second repetitious, and the final strangely reserved.  Pollini played all of it well, managed to make the middle movement cohere, and projected well the elegiac quality of the finale.  But I didn't hear the kind of passionate engagement I had heard in the Appassionata.

He ended the formal part of the program with a Chopin group, the 4 Mazurkas of Op. 33 and the Scherzo No. 2.  These were more brilliant than passionate, I thought, and at times I missed the feeling of the dance that should underlie the mazurkas.  Nothing was less than immaculate, but there was also a reserve that I thought worked in the mazurkas but not so well in the scherzo.

But then came the encores, four of Chopin's greatest hits, including the great Ballade No. 1 and the Revolutionary Etude.  And Pollini really went wild in the big moments, total passion, total abandon - it was truly wonderful.

I've learned my lesson about Sunday afternoon recitals - don't trust the MTA to run A trains more frequently than every 30 minutes, leave much more time to get to the hall..... !

New York Philharmonic - Robertson & Kavakos

This week's program by the New York Philharmonic was built around the 2nd Violin Concerto by Bela Bartok, with the Greek violinist as soloist.  David Robertson, music director of the St. Louis Symphony Orchestra, was the guest conductor, framing the Bartok with Mozart's Symphony No. 34 and Brahms's Symphony No. 3.

I attended the Saturday night performance, which was excellent.  Kavakos played the Bartok with great passion and involvement, emphasizing the dramatic without stinting the lyrical moments.  He is a physically intense player, tall and dark and a bit fierce looking, and this was just right for the slashing double-stopped chords and the rapidly chugging scales.  I found the performance totally involving, even while trying to ignore a handful of people who seemed to be struggling with the final stages of consumption in the audienced....

The opening Mozart was neatly done, but I felt the "vivace" aspect of the opening and closing movements was a bit slighted -- particularly the finale, whose 6/8 can easily fall into a big of a jog if not lively enough.  Opinions can differ, certainly, about tempo and articulation, especially as the pre-metronome Mozart could not leave us a more precise indication of what he intended than the ambiguous "allegro vivace."  And the conductor must play it the way he feels it.

I had somewhat different issues with the Brahms symphony.  I think in some ways this one is the most difficult to "bring off" of the four Brahms symphonies.  The first movement, in particular, has many traps for the conductor, and can easily come off as too heavy if the tempi do not flow adequately.  I thought Robertson's tempi, in general, worked well in this movement, but I did think at times that he was slowing a bit too much for the contrasting themes, losing some momentum.  There is, in addition, one fault in this movement that I blame on Brahms.  He decided he wanted the exposition repeated in classical fashion, but instead of writing the kind of lengthy "first ending" that he had produced for the 2nd Symphony's first movement, here he just writes a few transitional notes, and they don't work for me -- the transition back to the opening of the movement is too abrupt and sounds awkward.  That's why, although I usually like conductors to play the repeat in a classical symphony first movement, in this symphony I think it works better dramatically and musically to just continue onward and ignore the repeated.  Robertson played the repeat, and I felt that "bump" of disruption....  The middle movements were fine, cleanly played and passionate where needed.  The finale was the best.  There were times during this performance when I wondered whether Robertson feels a great affinity for Brahms.  I usually love his work -- I loved his work in the Bartok, for example, where I felt he was totally "inside" the music -- but I felt a certain distance in the Brahms, as if temperamentally he could not quite sink himself into the late 19th century Viennese mode of this music.  Maybe it was just me on this particular evening.

Ricarda Merbeth, soprano - a Naxos discovery in Strauss

The super-budget Naxos label is constantly coming up with surprises, either in composer of whom nobody had ever heard, unusual repertory by "the masters," uncovering the arcane corners of the repertory, or featuring new performers of high quality in their earliest ventures into recording.  Here's a Naxos discovery worth sharing: German soprano Ricarda Merbeth, the featured soloist in a new disc of music by Richard Strauss, joined by Michael Halasz and the Weimer Staatskapelle. 

There is the expected "Four Last Songs," and the relatively neglected "Brentano-Lieder, Op. 68."  That accounts for about 52 minutes.  They fill out the disc to the hour mark with two orchestral excerpts from Strauss's opera, Ariadne auf Naxos.  This is the one questionable aspect of the programming.  There are scores of Strauss songs for soprano and orchestra, and they should have selected a few of these to fill out the disc.  Ms. Merbeth is so good that we should not be denied the pleasure of more of her company.

I have many recordings of the Four Last Songs in my collection, by some of the leading sopranos of our time, working with top orchestras and conductors, but I don't think any of them is more satisfying than this new Naxos.  The orchestra playing is sumptuous, well caught by the engineers in the Weimarhalle in August 2006.  Ms. Merbeth's singing is expressive and well balanced with the orchestra.  She hits her high notes without strain, and is heard at all times.  The requisite emotion pours forth in the autumnal Four Last Songs, while the Brentano-lieder, an earlier work, are suitably lighter in texture. 

As is usual these days, Naxos does not give us texts in the insert leaflet, and I haven't checked to see whether they are available from the label's website (which is noted on many others of their vocal releases but not here).  Most people interested in this repertory are likely to have multiple recordings of the Four Last Songs, so probably don't need another set of texts, but the Brentano-lieder are relatively rare, and a text would have been welcome.  (I have one other recording on a major label -- Gruberova with Michael Tilson Thomas and the LSO -- so I can find my text there on the SONY release.)  I think it is a bad marketing decision to omit the texts, since reviewers are bound to note their omission, and that will deter potential purchasers who are unfamiliar with the music, no matter how affirmative the critic's discussion of the music, performance and sound quality.

For me, this is a very worthwhile release -- one that migrates quickly to the iPod, to join the Schwarzkopf/Szell recording of the 4 Last Songs.

Only Partial Title VII Relief for Sexually-Harassed Worker

U.S. District Judge Michael R. Barrett ruled on October 20 that Sidney Watts Taylor could pursue a retaliation claim against his former employer, H.B. Fuller Co., but not a direct discrimination claim, becuase he is not a member of a "protected class" under Title VII.   Since there are no "protected classes" under Title VII, this is really a somewhat incoherent assertion, until one realizes that sloppy language, from the Supreme Court on down, has infected Title VII jurisprudence, and Barrett's decision is at odds with rulings by some other courts. Taylor v. H.B. Fuller Co., 2008 Westlaw 4647690.

Taylor began working for Fuller at its Louisville facility in 1979.  In years of service, he was a highly rated employee who never encountered any disciplinary problems in the workplace.  In January 2000, he accepted a transfer to the Blue Ash facility to be technical manager, and his problems began.  According to his complaint, Taylor was subjected to pervasive and unwelcome discrimination for being "too feminine."  Barrett's opinion summarizes the allegations of the complaint as a series of incidents stretching over several years, that could not be considered anything other than severe and pervasive as those terms have come to be construed in the jurisprudence of sexual harassment law.   

Taylor complaiend to management about various incidents, but never received effective relief, as the problems continued, and finally in February 2006 he filed charges with the EEOC, as well as an anonymous complaint with OSHA about some workplace safety issues.  Because Taylor had also reported the safety problems to management, word got out that he was the source of the OSHA complaint, which made him unpopular when the company told workers there would be no bonuses because of the OSHA complaint.  At this point, Taylor suffered spray-paint vandalizing of his car in the company lot, and on June 13, 2006, when he went to his office, he found a newspaper clipping on the floor of an article about gay marriage, with the words DIE OSHA FAG written on it in red letters.  He filed a police report at the suggestion of management, but nothing came of it.  He filed the federal court action in December 2006.  The company then seized his office computer, subjected it to scrutiny, discovered some pornographic files on the hard drive, and discharged him.  Thus, the subsequent retaliation charge.  Fuller moved for summary judgment.

Judge Barrett observed that both parties agreed that Title VII does not make sexual orientation discrimination actionable, but Taylor was relying on the growing body of cases building on Price Waterhouse v. Hopkins to develop a cause of action for gay employees subjected to workplace harassment due to their gender non-conformity.  Thus his allegation that he was harassed for not being "manly" enough, rather than for his perceived sexual orientation.  (It is not clear from the opinion whether he is gay or, if so, was "out" at the workplace, but the court writes the decision as if Taylor is gay without saying so.)  Barrett concluded that evidence in the summary judgment record before the court did not support a Title VII claim.  "In the case at hand," he wrote, "the question then becomes was Taylor discriminated and/or harassed because of his sex.  Was it because he failed to act masculine enough and thus, entitled to Title VII protection?  Although the harassment was deplorable, unfortunately, the answer is no."   

The controlling precedent in the 6th Circuit is Vickers v. Fairfield Medical Center, 453 F.3d 757 (6th Cir. 2006), a case much like this one, in which the court found that the plaintiff had not adequately shown that his appearance or mannerisms on the job were perceived a "gender non-conforming" or the cause of the harassment.  Barrett concluded the same was true in this case.  "Taylor's claim of sex stereotype discrimination must fail as he is not a member of a protected class," wrote Barrett.  He found that as bad as the harassment was, it was not motivated by Taylor's sex, but rather by perceived sexual orientation.  "This Court finds the actions of Taylor's co-workers to be deplorable and unacceptable in today's workforce, however, the result here is required by precedent," wrote Barrett.  "Unfortunately, 'Congress has not yet seen fit... to provide protection against such harassment,'" this time quoting from Bibby v. Philadelphia Coca-Cola Bottling Co., 260 F.3d 257 (3rd Cir. 2001).

However, as is frequently the case, the retaliation claim earned better treatment from the court.  Analyzing the evidence presented about events that occurred after Taylor had filed his complaint and settlement negotiations had ensued, the court said there the evidence presented in opposition to the summary judgment motion was sufficient to raise in inference of retaliatory conduct, sufficient to deny the company's summary judgment motion on this claim, so if there is not a settlement, the company will have to risk further proceedings to determine whether it retaliated against Taylor for engaging in protected conduct under Title VII.

Revival Tour of Terrence McNally's "Corpus Christi"

A group of young actors has put together a tenth anniversary revival tour of their production of Terrence McNally's controversial play, "Corpus Christi."  I saw their performance in New York, under the aegis of "108 Productions at Rattlestick Theater" in Greenwich Village last night.  The production is presented as a fund-raising vehicle for the Matthew Shepard Foundation, which works to prevent anti-gay violence.  This seems a suitable tie-in, inasmuch as the play first appeared at around the time of Matthew Shepard's murder, and that the play itself provides interesting parallels to Shepard's life (coincidentally, of course).

The idea is a modern-dress presentation of the life of Jesus of Nazareth, in the person of a young gay resident of Corpus Christi, Texas, named Joshua.  Young Joshua slowly comes to understand his sexuality, forms a liaison with a Judas-character, attracts followers with his preachings of love and tolerance, re-enacts various of the miracles recounted in Christian scriptures, and ultimately is crucified.  Several of the disciplines are gay, and Joshua presides over a same-sex wedding ceremony.  The entire think is presented in a manner that could be called "casual serious" with some sprinklings of humor and plenty of "preaching to the choir" tolerance advocacy. 

When first presented in New York a decade ago, it quickly became a cause celebre, attracting anti-gay picketing at its opening performances.  It has been discovered by local community and college theater groups as a provocate play to put on at low cost, because it can be done effectively by an amateur cast with minimal sets and virtually no investment in fancy costumes.  The play can be found entirely in the texts given to the actors, which can be enacted without realistic sets or props.  On this occasion, the low-budget production is presented by a very dedicated cast, and it works.  Indeed, the performance I attended last night, a Thursday night, was sold out, and the run became heavily sold after a favorable review appeared in the NY Times... so favorable, that they've added another matinee performance tomorrow (Saturday Oct. 25) for which it was announced that some tickets remained available.  As noted above, proceeds after expenses go to the Matthew Shepard Foundation.

As I track LGBT news through my daily westlaw newspaper database searches, I note that performances of Corpus Christi continue to be flashpoints for controversy around the country, and more than one school drama teacher has put his or her career on the line by championing a production of the play by students.  (There is enough bawdiness included to raise issues for prudish school boards....)  So it is interesting that the current NY run, with its high-profile NY Times review, has not attracted protests or pickeing.  Maybe the religious right considers an off-off-Broadway Greenwich Village production to be beneath notice. 

The Black Watch - National Theatre of Scotland at St. Ann's Warehouse in Brooklyn

Last night I saw the production of Gregory Burke's play, Black Watch, at St. Ann's Warehouse, a large theater space on the waterfront in Brooklyn.  This is a reprise of a production that was very successfully mounted in NYC a year ago, completely sold out, and is back for a second look.  I don't know whether the cast is identical to the previous time, which I didn't see.

Black Watch is based on interviews with surviving members of a unit of Scottish soldiers who served tours of duty in Iraq as part of the British forces there.  The Black Watch was a famous Scottish army unit whose separate identity was lost in recent years when dropping enlistments led to a consolidation of regiments.  They had a proud history dating back hundreds of years, and many insular traditions.  The structure of the play is to show bits of the interview process interspersed with recreations of incidents that the interviewees recall.  The combination of sound effects, music, choreography, and stunning performances from the entire cast of athletic young men produces a stunning dramatic effect.

This production is not for the faint of heart.  It includes the constant foul language that soldiers on the front lines are known to employ, lots of physical contact of an aggressive nature, sudden loud noises and strobe effects -- in other words, prepare to have your sense assaulted.  But this is all in the service of dramatic truth, of a determined attempt to help audiences at least begin to understand the feeling of what it must be like to serve under very trying conditions in a setting where the enemy is not an organized national army but rather gangs of malcontents and terrorists with access to powerful weapons and a superior knowledge of the setting.

Is there a political point of view to this show?  I picked up on a continuing undercurrent of discontent about Britain's decision to send troops to Iraq, and some blatant comments about the lack of adequate training and equipment.  But that is not the central focus of the play.  Rather, it is on the impact of this kind of service on the character of the individuals, and on the relationships of the men thrown together under trying circumstances.  As such, it is a very effective example of a well-established genre.

The eleven-member cast is uniformly strong, but one member of the cast really stood out for me - Emun Elliott, playing the role of "Frazz" (nickname for Fraser, according to what appeared on his uniform shirt).  The character itself stands out as a steadfast contrarian.  I thought it was very similar to the character portrayed by Colin Farrell in Tigerland - perhaps it is the comparison of the dark good looks and quirky individuality of the two actors, but just as Farrell's performance in Tigerland had me coming out of the theater convinced that I had seen an important new star, I had a similar reaction to Elliott.  I hope lots of film producers and casting agents make it to this show and that he gets the opportunities to develop his talent that he deserves.

Another standout is Michael Nardone, in the combined role of the writer who is interviewing the surviving members of the Black Watch unit, and the sergeant who is a focus of dramatic attention in the Iraq scenes.  But one could easily run through the entire cast with encomia, as there is not a weak link in the company. 

I understand that the run is again sold out.  I doubt that a movie could or should be made of this -- at least not without quite a bit of rethinking -- because a big part of the impact is watching it performed live, especially in the physicality of things performed before your eyes by cast member rather than the "stunt doubles" that would be used in a film.   Director John Tiffany has an extraordinary achievement here.  The program has a long list of technical staff, and they all would deserve mention.  Certainly Steven Hoggett, the associate director for movement, and Davey Anderson, the associate director for music, deserve special mention.   

A Revised Take on "Will of Alan Zwerling" - Queens, NY, Surrogate Court

I reported on this blog and in the September 11 issue of Gay City News about a decision by Queens Surrogate Robert Nahman that was published in the New York Law Journal on September 9, ruling that the will of Alan Zwerling, a gay man who was married to his partner in Canada, could not be probated without joining the man’s parents as parties, due to uncertainty about whether the marriage was legally recognized in New York. We suggested that the result could be to delay the probating of the will, to the disadvantage of the surviving partner, who we thought was the sole beneficiary under the will.  The opinion can be found at 2008 N.Y. Misc. LEXIS 5651.

We’ve since learned from the attorney for the Estate of Alan Zwerling that the story is much more interesting than what we had deduced from Judge Nahman’s brief, cryptic opinion.

Alan Zwerling and Martin Orrego were married in Canada on July 12, 2007. They had been living together for some time in a house that they had purchased in Queens. Zwerling’s original will provided that Orrego would inherit Zwerling’s ownership interest in the house if Zwerling died. However, shortly after they married, Orrego became involved with another man, Zwerling and Orrego separated, a divorce petition was filed in Queens County, and Zwerling changed his will to leave his estate to his brother Martin Zwerling. Then, a few months later, Alan Zwerling died, still married to Orrego.

Martin Zwerling presented the new will to the Queens County Surrogate’s Court, together with the information that at his death Zwerling was married to Martin Orrego, and with a document signed by Orrego waiving any claims he might have to part of Zwerling’s estate as a surviving spouse. (Under New York law, a spouse cannot be disinherited, and is entitled to a statutory percentage of the estate, regardless of what the will says, unless the spouse agrees to waive his or her statutory rights.)

This would seem to have left the way clear to probating the will and giving Martin Zwerling his inheritance. But Surrogate Nahman was concerned about whether the marriage was legally recognized in New York. If it was not, then Zwerling died an unmarried man, in which case his surviving legal heirs, his parents, might have an interest in contesting the will since it left nothing to them. Although parents don’t have a right to a statutory share of a child’s estate, as heirs at law they would have standing to contest a will that left them nothing.

Nahman wrote, as we previously reported, that in the absence of a "definitive" same-sex marriage recognition ruling by the Appellate Division for the 2^nd Department, which has appellate jurisdiction over the Queens Surrogate Court, he would require that Alan Zwerling’s parents be joined as parties to the probate proceeding. As we pointed out in our prior article, Nahman never mentioned the 4^th Department’s ruling from last spring in Martinez v. County of Monroe, a state-wide precedent holding that a Canadian same-sex marriage was legally valid in New York.

After Nahman’s decision was issued, Zwerling’s parents agreed to sign a document waiving any rights they would have to participate in the probate proceeding or make a claim against their son’s estate, and Surrogate Nahman subsequently issued the necessary "letters testamentary" to Martin Zwerling to proceed with administering the terms of his brother’s will. Had Alan Zwerling’s parents balked at waiving their rights, however, the proceeding could have become prolonged through a will contest.

The main probate asset of Zwerling’s estate is the house that he bought together with Orrego, as "tenants in common." That will be sold, Orrego will receive his appropriate co-owner’s share of the proceeds, and the rest will go to the estate and ultimately Martin Zwerling as beneficiary. Had Orrego refused to waive his rights, he would have had a claim to a surviving spouse’s statutory share of the estate, which under New York law would ordinarily be one-third of the value of the estate, which would include any personal property owned by Zwerling as well as the real estate.