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Privé developers win another victory in ongoing litigation with neighbors

Dara and David Clarke had alleged malicious prosecution, negligent reporting to the police and defamation
By Francisco Alvarado | February 27, 2018 08:45AM

Prive at Island Estates and BH3’s Charlie Phelan, Greg Freedman and Daniel Lebensohn and Gary Cohen

UPDATED Feb. 28, 2:45 p.m.: The developers at Privé at Island Estates racked up another court win in the long-running legal battle with neighboring homeowners. Miami Federal Judge Robert Scola Jr. granted summary judgment in favor of project builders Gary Cohen, Daniel Lebensohn, BH3 and five related companies last week, related to allegations of wrongful prosecution and defamation.

Dara and David Clarke, a pair of residents who sued the developers and the city of Aventura in Miami-Dade Circuit Court over the construction of a sidewalk near their home, had filed a separate federal lawsuit against Cohen, Lebensohn, BH3 and the five entities for malicious prosecution, negligent reporting to the police and defamation.

Last month, a Miami-Dade jury awarded a $26 million verdict to Cohen and BH3 in a lawsuit brought against the developers by the Williams Island Property Owners’ Association, which along with the Island Estates Homeowners Association, has sought to stop the luxury two-tower development since 2013.

According to Scola’s order, the federal lawsuit was spawned by an incident in the early evening of Feb. 26, 2015. Upon returning home with his wife, who had complained to Aventura Police officers that a Privé construction crew was working on the sidewalk after permitted hours, David Clarke drove his Porsche SUV over the freshly poured concrete. Cohen, who was on the phone with the foreman, hung up and called 911 and mistakenly identified Dara Clarke as the person behind the wheel of the Porsche.

She was arrested for disturbing the peace, resisting arrest and criminal mischief. Lebensohn then shared information on Dara Clarke’s arrest, including her mugshot, to Privé public relations firm Boardroom Communications, Scola’s order states. “Boardroom’s efforts resulted in the publication of three articles on Clarke’s arrest, which were also referenced on Aventura Bytes blog posts,” Scola wrote. “There were also several follow-up articles and subsequent media coverage.”

The Miami-Dade State Attorney’s Office subsequently dropped the charges because prosecutors could not ultimately determine under whose property rights the sidewalk fell under.

Matthew Leto, an attorney for the Clarkes, said the case is not over. “In our view, that scenario is a classic case of malicious prosecution and false reporting to the police,” Leto said.  “We feel confident that these issues will be placed before a jury after the appeals process is completed.”
A lawyer for the developers did not respond to a request for comment.

Scola agreed with lawyers for the developers that there was no malicious prosecution because Cohen and Lebensohn did not actively pursue to have the Clarkes criminally prosecuted. The judge also determined that cops had probable cause to arrest Dara Clarke and that there is no evidence the Privé developers made false reports to the police.

Scola found that Clarke didn’t present any evidence she was defamed. Instead, she claimed that the dissemination of facts regarding her improper arrest was made in bad faith. “Once again, the Court notes that Clarke conspicuously has not challenged the propriety of her arrest by claiming false arrest against the officers,” Scola wrote. “And Clarke’s defamation claims suffer a similar infirmity to her claim for negligent reporting.”

Furthermore, Lebensohn’s statements that the Clarkes were behaving like “spoiled brats” who engaged in a “fraternity prank” did not constitute defamation, Scola ruled. “Although not expressed in a particularly sensitive or diplomatic fashion, Lebensohn’s comment reflects his point of view with respect to the trespass claim,” Scola wrote. “Therefore, the court finds that the statement is not defamatory as a matter of law because it is statement of pure opinion.”