Stonington - A New London Superior Court judge has rejected an attempt by the town to be removed as a defendant in the lawsuit that Pawcatuck resident Tracy Swain filed against First Selectmen Ed Haberek.

The ruling means the case can proceed with the town responding to her allegations, followed by discovery, depositions and trial.

Because the town's motion to strike Count 2 of the complaint was unsuccessful, the town now could be held liable for damages if a jury agrees with Swain's allegations that Haberek used a town-issued BlackBerry to send her a "sexually graphic photo of himself" in January 2010. In addition, the town now will incur legal fees to defend itself against the lawsuit.

Swain's attorney Scott Camassar said the case had essentially been on hold until Judge Robert Martin made his ruling on Nov. 6.

The town argued that Swain had not filed a written notice of her claim with the town within the required six months, but Swain argued that the town had become involved in the issue earlier when it fought her attempt to get Haberek's cellphone records from Verizon, the town's cellphone provider. Martin ruled that the town failed to address all of Swain's claims and so the motion must be rejected in its entirety.

Swain's suit states that prior to Jan. 12, 2010, Haberek had extensive phone, email, text and Facebook communication with her. When Swain told him on that date to stop sending the messages, he allegedly sent her the photos of himself. Haberek has said the allegations are false.

The suit charges that the town has not only interfered with Swain's attempt to get evidence of the calls from Haberek but has failed to enforce its own policy about use of communications equipment by town employees.

Earlier this year, Camassar offered to release the town from the lawsuit and any liability if Haberek agreed to one of two scenarios.

Under terms of the first offer, Haberek must immediately turn over the photos that he allegedly sent to Swain on Jan. 12, 2010. He must admit that he used the BlackBerry to do so, and must provide documentation about when he sent the photos and where he was at the time. Swain has said that Haberek told her he was in his Town Hall office when he sent the photos.

Under the second option, Haberek must agree to pay for an analysis of his BlackBerry, desktop computer and other devices that were in his possession on Jan. 12, 2010, by an independent computer forensics expert. Only the three parties in the suit would have access to the information, and "any data unrelated to this incident need not be disclosed," according to the offer.

In addition, Haberek must consent to the release of material seized by state police with a search warrant after Swain made a complaint. Police found that no crime had been committed. He also must agree to an attachment of his property and assets unless he demonstrates proof of adequate insurance to cover any potential damages.

Camassar said Haberek and the town have never responded to his offer, and there has been no settlement discussions so far.

The attorney representing the town, Michael Ryan of Stamford, could not be reached for comment this week.

j.wojtas@theday.com