Motion,Ex Parte: Great Wall Medical P.C. d/b/a New York Robotic Gynecology & Womens Health, Joon Song v. Michelle Levine

On January 01, 2017 a Motion,Ex Parte was filed involving a dispute between Great Wall Medical P.C. D B A New York Robotic Gynecology & Women’S Health, Joon Song, and Michelle Levine, for Torts - Other (Defamation/Trade Libel) in the District Court of New York County.

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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK

GREAT WALL MEDICAL P.C. d/b/a NEW YORK
ROBOTIC GYNECOLOGY & WOMEN'S Index No. 157517/2017

HEALTH and JOON SONG,

Plaintiffs,
-against-

MICHELLE LEVINE,

Defendant.

MEMORANDUM OF LAW IN FURTHER SUPPORT OF DEFENDANT'S
MOTION

On the Brief

Daniel S. Szalkiewicz, Esq.

Cali P. Madia, Esq.

Daniel Szalkiewicz Associates

Attorneys for Defendant

325 West 38th Street, Suite 810

New York, New York 10018

Tel: (212) 706-1007

Fax: (914) 500-2315

daniel@Lawdss.com

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TABLE OF CONTENTS
PRELIMINARY STATEMENT .................................................................................................... 5

ARGUMENT .................................................................................................................................. 5
POINT I PLAINTIFFS’ MEMORANDUM OF LAW FAILS TO DEMONSTRATE WHY THE
AMENDED COMPLAINT SHOULD NOT BE DISMISSED IN ITS ENTIRETY ..................... 5
A. Reply to Point I(2): Plaintiffs’ Vague Footnote in the Amended Complaint is
Insufficient to Be Considered Special Damages ..................................................................... 5

B. Reply to Point I(3): Plaintiffs Have Not Plead that Defendant Interfered with a
Contract. .................................................................................................................................... 8

C. Reply to Point I(4): Plaintiffs Continue to Claim Defamation and Intentional
Infliction of Emotional Distress Based on the Same Facts and Circumstances. ............... 10

D. Reply to Point I(5): Plaintiffs’ Opposition Lacks Special Damages and that the
Cause of Action is not Duplicative ......................................................................................... 11

E. Reply to Point I(6): Plaintiffs’ Relies Solely on Federal, Unpublished Cases, When
the First, Second and Third Departments have Consistently Held there is No Tort for
Harassment. ............................................................................................................................. 12

POINT II CONTRARY TO PLAINTIFFS’ ASSERTIONS, THE MOTION TO STRIKE
PORTIONS OF THE COMPLAINT IS TIMELY ....................................................................... 13

POINT III PLAINTIFFS’ MOTION FOR CONTEMPT SHOULD BE RENEWED,
REARGUED, AND, UPON REARGUMENT, DENIED IN ITS ENTIRETY ........................... 14

POINT IV PLAINTIFFS’ ADMIT THEY MADE STATEMENTS TO THE MEDIA IN
VIOLATION OF THE CONTEMPT ORDER............................................................................. 15

POINT V THE PRELIMINARY INJUNCTION DATED FEBRUARY 13, 2018 SHOULD BE
VACATED AS NEITHER PARTY ABIDED BY ITS TERMS ................................................. 16

CONCLUSION ............................................................................................................................. 17

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TABLE OF AUTHORITIES
Cases
Adeniran v State, 106 AD3d 844, 845 [2d Dept 2013] ................................................................ 13

Agnant v Shakur, 30 F Supp 2d 420, 426 [SDNY 1998] ............................................................... 6

AXA Equit. Life Ins. Co. v Epstein, (29 Misc 3d 689, 691 [Sup Ct 2010] .................................. 16

Bacon v Nygard, 140 AD3d 577, 578 [1st Dept 2016] .......................................................... 11, 12

Broadway Cent. Prop. Inc. v 682 Tenant Corp., 298 AD2d 253, 254 [1st Dept 2002] ................ 12

Carroll v Rondout Yacht Basin, Inc., 162 AD3d 1150, 1151 [3d Dept 2018], appeal dismissed,
2018 NY Slip Op 85671 [Ct App Oct. 11, 2018] ..................................................................... 13
CBS Inc. v Arcane Visuals Ltd., (156 Misc 2d 665, 667 [Civ Ct 1993] ...................................... 12

DiSanto v Forsyth, 258 AD2d 497, 498 [2d Dept 1999] ................................................................ 8

Drug Research Corp. v Curtis Pub. Co., 7 NY2d 435, 441 [1960] ............................................ 6, 7

Farkas v Farkas, (209 AD2d 316, 319 [1st Dept 1994] ................................................................ 15

Franklin v Daily Holdings, Inc., 135 AD3d 87, 93 [1st Dept 2015] .......................................... 6, 7

Ghaly v. Mardiros, 611 N.Y.S.2d 582, 204 A.D.2d 272 [2d Dept. 1994] .................................... 11

Golia v Vieira, 162 AD3d 865 [2d Dept 2018] .............................................................................. 8

Hartman, 19 AD3d at 240 ............................................................................................................. 13

Kasachkoff v Sujnow, 2016 N.Y. Slip Op. 30049[U] [Sup Ct, New York County 2016 ............ 14

Long v Beneficial Fin. Co. of New York, (39 AD2d 11, 13 [4th Dept 1972] .............................. 12

M.J. & K. Co., Inc. v Matthew Bender and Co., Inc., 220 AD2d 488, 490 [2d Dept 1995] ........ 10

Matherson v Marchello, 100 AD2d 233, 235 [2d Dept 1984] ........................................................ 6

Newsday, Inc. v C. L. Peck Contr., Inc., 87 AD2d 326, 328 [1st Dept 1982]................................ 7

Poulos v City of New York, 14CV3023-LTS, 2016 WL 224135, at *3 [SDNY Jan. 19, 2016] .. 13

Prignoli v City of New York, 94 CIV. 4125 (KMW), 1996 WL 340001, at *6 [SDNY June 19,
1996........................................................................................................................................... 12

Re v. Akpinar, 83 A.D.3d 458, 922 N.Y.S.2d 8, 2011 N.Y. Slip Op. 2811[2d Dept. 2011] ....... 11

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Reporters' Ass'n of Am. v Sun Print. & Publ. Ass'n, 186 NY 437, 442 [1906].............................. 6

Segall v. Sanders, 2015 NY Slip Op 4836 [2d Dept. 2015] ......................................................... 11

Vigoda v DCA Productions Plus Inc., 293 AD2d 265, 266 [1st Dept 2002] ....................... 8, 9, 10

Statutes
C.P.L.R. §2004.............................................................................................................................. 14

C.P.L.R. 3024(b) ........................................................................................................................... 14

Civil Practice Law and Rules 5513 ............................................................................................... 17

Civil Practice Law and Rules Rule 2103 ...................................................................................... 16

McKinney's Judiciary Law § 756 ................................................................................................. 16

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PRELIMINARY STATEMENT

The On behalf of Defendant MICHELLE LEVINE (“Defendant” or “Michelle”), we

submit this Memorandum of Law in Further Support of Defendant’s Combined Motion to

Dismiss the Amended Complaint, brought against her by plaintiffs GREAT WALL MEDICAL

P.C. d/b/a NEW YORK ROBOTIC GYNECOLOGY & WOMEN’S HEALTH (“Great Wall

Medical”) and JOON SONG (“Song” and, jointly with Great Wall Medical, “Plaintiffs”).

In their reply papers the Plaintiffs do not contest the follow:

• Plaintiffs brought only an action for “trade libel” and were required to plead
special damages;
• The facts contained in Defendant’s motion to renew- that there was no harm
caused by her alleged violation of the preliminary injunction- are both true and
accurate;
• Dr. Song made statements concerning the action to Korean Daily.

In their rambling Memorandum of Law in Opposition, Plaintiffs’ attempt to poke holes at

Defendant’s motion without providing any substantive opposition to the motion to dismiss.

Plaintiffs attempt to rely on a footnote and general allegation to mask their gross incompetence

in pleading special damages, contrary to the well established laws of trade libel, contract, and

primia facie tort jurisprudence. As such, Defendant’s motion should be granted in its entirety.

ARGUMENT

POINT I
PLAINTIFFS’ MEMORANDUM OF LAW FAILS TO DEMONSTRATE WHY THE
AMENDED COMPLAINT SHOULD NOT BE DISMISSED IN ITS ENTIRETY

A. Reply to Point I(2): Plaintiffs’ Vague Footnote in the Amended Complaint is
Insufficient to Be Considered Special Damages

Plaintiffs, who do not deny being required to allege special damages to set forth a cause

of action for trade libel, have not done so; as a result, this claim should be dismissed for failure
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to state a cause of action. “Special damages consist of the loss of something having economic or

pecuniary value, which must flow directly from the injury to reputation caused by the defamation

and not from the effects of the defamation” (Franklin v Daily Holdings, Inc., 135 AD3d 87, 93

[1st Dept 2015]).

New York courts have held that “[u]nder the settled rule, whenever special damage is

claimed, the plaintiff must state it with particularity, in order that the defendant may be enabled

to meet the charge” (Reporters' Ass'n of Am. v Sun Print. & Publ. Ass'n, 186 NY 437, 442

[1906]). Specifically, it is well settled law that the damages “must be fully and accurately

identified with sufficient particularity to identify actual losses…[and] nonspecific conclusory

allegations do not meet the stringent requirements imposed for pleading special damages”

(Matherson v Marchello, 100 AD2d 233, 235 [2d Dept 1984]). Delving into the meaning of

particularity, “to satisfy the special damages requirement, a plaintiff must set forth an itemized

account of his losses; round figures, general allegations of a dollar amount or boilerplate

allegations of some impairment to business reputation are insufficient” (Agnant v Shakur, 30 F

Supp 2d 420, 426 [SDNY 1998]). Further, “special damage must be fully and accurately stated;

if the special damage was a loss of customers, the persons who ceased to be customers, or who

refused to purchase, must be named. If they are not named, no cause of action is stated.” (Drug

Research Corp. v Curtis Pub. Co., 7 NY2d 435, 441 [1960]).

Plaintiffs’ Complaint does not contain even the vaguest of justifications concerning the

dollar amount of losses suffered, much less an itemized account of their losses – round figures or

otherwise. Instead, Plaintiffs boldly and without any support for the number demand $1,000,000

in damages, an amount Plaintiff Dr. Song calls “symbolic[.]”1

1
See Defendant’s certified translation, annexed to the moving papers at Exhibit “15”

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In Drug Research Corp, the Court of Appeals dismissed plaintiff’s complaint, which

claimed damages of $5,000 as it was a “round figure[ ], with no attempt at itemization, [which]

must be deemed to be a representation of general damages” (See Drug Research Corp., 7 NY2d

at 441). Plaintiff’s case was similarly dismissed for failure to adequately plead special damages

in Daily Holdings, Inc., where plaintiff failed “to state more than a round figure of $3,000,000

when alleging his damages, which is insufficient to state special damages” (Franklin, 135 AD3d

at 93). The Complaint in C. L. Peck Contr. was found to be lacking in specificity concerning

special damages when it chose an “arbitrary figure of $8,000,000 in compensatory damages is

not related to any specific injury” (Newsday, Inc. v C. L. Peck Contr., Inc., 87 AD2d 326, 328

[1st Dept 1982]).

Addressing specifically their pleadings concerning special damages, in their opposition

papers, Plaintiffs’ counsel directs this court to the following language contained in their

Complaint: “’several patients have…refused to pay for billed treatments, in a similar vein as Ms.

Levine…[or] cancelled appointments with Dr. Song, upon information and belief, because they

have seen Defendant Levine’s’ False Reviews.” Unfortunately for Plaintiffs’, the

aforementioned speculations – which edge only slightly closer to an attempt at establishing

special damages than their million dollars of symbolism – cannot, under any reading, qualify as a

full and accurate recitation of their losses.

In one final attempt to muster up special damages pleadings, Plaintiffs’ counsel points to

a footnote stating that the names of lost patients were specifically omitted to protect their

privacy. Dressing their failure as a privacy issue, Plaintiffs, who are more than capable of

redacting names and other identifying information from an invoice, neglect to include an

itemized bill or even concrete allegation of a patient who refused to pay or canceled an

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appointment because she had read Defendant’s review. However, this does not excuse the fact

these allegations are still insufficient under the law (see DiSanto v Forsyth, 258 AD2d 497, 498

[2d Dept 1999] [“general allegations of lost sales from unidentified lost customers are

insufficient”]).

This Court should find that, because Plaintiffs’ Complaint does not contain a list of such

individuals, much less an itemized accounting of their losses (or even an accurate figure as to

what the alleged special damages, in the aggregate, are), dismissal of their trade libel cause of

action is absolutely necessary.

B. Reply to Point I(3): Plaintiffs Have Not Plead that Defendant Interfered with a
Contract.

The Plaintiffs’ ignore that the tortious interference claim is duplicative of the defamation

cause of action and therefore must be dismissed. In their memorandum, Plaintiffs continue to

allege Michelle “false accusation of series crime and felonies” are the bases of her supposed

interference with contracts (See Memo pg. 6). As both business interference torts are “based on

the same facts as the cause of action to recover damages for defamation, and fail[ ] to allege a

distinct, cognizable cause of action” they are duplicative of each other, and one must fail (Golia

v Vieira, 162 AD3d 865 [2d Dept 2018]).

Plaintiffs’ Complaint is similarly lacking in special damages in relation to their tortious

interference claims. Tortious interference causes of action, like those sounding in trade libel,

will be dismissed when they “set[ ] forth damages in round numbers which amount to mere

general allegations of lost sales from unidentified lost customers [and when all] that

plaintiffs…allege[ ] is lost future income, conjectural in identity and speculative in amount”

(Vigoda v DCA Productions Plus Inc., 293 AD2d 265, 266 [1st Dept 2002]). Plaintiffs’

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Complaint is woefully lacking in respect to special damages and, as such, their causes of action

for both tortious interference with contractual relation and prospective contractual relations

should be dismissed for failure to state a cause of action.

“Tortious interference with contract requires the existence of a valid contract between

the plaintiff and a third party, defendant's knowledge of that contract, defendant's intentional

procurement of the third party's breach of contract without justification, actual breach

and damages” (Vigoda., 293 AD2d at 266). Notwithstanding the glaring question of whether

Plaintiffs have alleged valid contract rights in unnamed patients, the claim for tortious

interference with the single named entity even falls short.

In response to Defendant’s assertion that Plaintiffs’ vague allusions to existing contracts

with patients are not sufficient to set forth a tortious interference cause of action, Plaintiffs offer

Plaintiff Song’s admitting hospital, NYU as “sufficient to state a claim[;]” this too is not the

case. Nowhere in their Complaint or subsequent Memo of Law do Plaintiffs assert that NYU

breached its agreement with Plaintiffs’, in fact, ¶96 of the Complaint states that Dr. Song himself

decided to resign. Even if Plaintiffs had included a list of patients lost due to Dr. Song’s

unilateral decision to breach his contract with NYU and resulting lack of admitting hospital, such

losses are attributable to Dr. Song’s decision alone. Plaintiffs have not alleged that NYU

breached any agreement with Plaintiffs; Defendant should not be penalized for Plaintiffs’ choice

to resign.

As for their allegations that Defendant tortiously interfered with prospective economic

relations[. Such a claim] requires an allegation that plaintiff would have entered into an

economic relationship but for the defendant's wrongful conduct…As plaintiffs cannot name the

parties to any specific contract they would have obtained [but for Defendant’s reviews]…they

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have failed to satisfy the “but for” causation required by this tort. (Vigoda, 293 AD2d at 266-67

[1st Dept 2002]; see also M.J. & K. Co., Inc. v Matthew Bender and Co., Inc., 220 AD2d 488,

490 [2d Dept 1995] [“the plaintiffs' mere contentions that third parties cancelled contracts with

them because of the alleged defamatory remarks made by Bender's representatives, offered with

no factual basis to support the allegations, was insufficient to state a cause of action for tortious

interference with contractual relations”

Again, as Plaintiffs fail to “name the parties to any specific contract” they would have

otherwise obtained, they have failed to make a claim for intentional interference with prospective

contracts.

Accordingly, Plaintiffs’ Complaint fails to make out a claim under either interference

with contractual relationships or interference with prospective contractual relationships.

C. Reply to Point I(4): Plaintiffs Continue to Claim Defamation and Intentional
Infliction of Emotional Distress Based on the Same Facts and Circumstances.

Plaintiffs’ reply punctuated that his claim for damages are nothing more than just “hurt

feelings, mere insults, indignities, threats, annoyances or other trivialities” (Young v. Young,

2016 NY Slip Op 50092[U] [Sup. Ct. Suffolk 2016]).

The court in Young provided decisional examples of conduct that Appellate Divisions

have found were not outrageous:

Giving false information to the police is not so outrageous as to be
actionable. Fabricating an email in plaintiff's name in which plaintiff was
made to appear to be a rude, petty, self-absorbed cartoonist was not so
outrageous and shocking as to be actionable, nor was making statements
via email encouraging people to "vomit" on plaintif. Allegations that
defendant dumped a pile of cement on the sidewalk in front of plaintiff's
house, tossed lighted cigarettes into plaintiff's backyard, threw eggs on his
front steps, and threatened to paint a swastika on his house do not rise to

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the requisite level of outrageousness. A funeral home's misdelivery of
cremated remains was not so outrageous as to be actionable.
(Id. [internal citations omitted]).

More so, the law is clear that a cause of action for intentional infliction of emotional

distress must be “dismissed as duplicative when the underlying allegations fall within the ambit

of other traditional tort liability, namely, plaintiff's causes of action sounding in defamation”

(Bacon v Nygard, 140 AD3d 577, 578 [1st Dept 2016]; see also Segall v. Sanders, 2015 NY Slip

Op 4836 [2d Dept. 2015]; Re v. Akpinar, 83 A.D.3d 458, 922 N.Y.S.2d 8, 2011 N.Y. Slip Op.

2811[2d Dept. 2011]; Ghaly v. Mardiros, 611 N.Y.S.2d 582, 204 A.D.2d 272 [2d Dept. 1994]

[“the cause of action sounding in intentional infliction of emotional distress based upon those

same statements in the third-party complaint were also properly dismissed as duplicative”]).

Plaintiffs’ sole claim of damages for emotional distress is based on the allegation that

Defendant posted critical reviews online that hurt his reputation. Such allegations, which are

nothing more than generalized annoyances, fall entirely “within the ambit of” Plaintiffs’ cause of

action for defamation.

Thus, the plaintiff’s Third Cause of Action should be dismissed because it is duplicative

of his defamation cause of action and, further, because the statements are not “so outrageous in

character, and so extreme in degree, as to go beyond all possible bounds of decency.”

D. Reply to Point I(5): Plaintiffs’ Opposition Lacks Special Damages and that the
Cause of Action is not Duplicative

Plaintiffs’ additionally fail to show the court how the cause of action is not duplicative of

defamation. They even attempt to allege the exact same special damages as they did in the trade

libel cause of action.

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Thus, because the defamation claim is plead on the same facts and circumstances of facie

facia tort, courts are mandated to dismiss the claim as duplicative (see Bacon, 140 at 578 [1st

Dept 2016] [“the intentional infliction of emotional distress and prima facie tort claims are

duplicative since the underlying allegations fall ‘within the ambit of’ the defamation causes of

action”]). More so, as discussed previously, Plaintiffs have failed to plead special damages.

E. Reply to Point I(6): Plaintiffs’ Relies Solely on Federal, Unpublished Cases, When
the First, Second and Third Departments have Consistently Held there is No Tort
for Harassment.

Plaintiffs’ final frivolous claim relates to violations of New York Penal Code §240.26.

However, New York does not recognize a civil cause of action for harassment (Broadway Cent.

Prop. Inc. v 682 Tenant Corp., 298 AD2d 253, 254 [1st Dept 2002]).

Plaintiffs then attempt to convert a criminal statute into a private civil cause of action,

replying on two unpublished opinions (which were not annexed d to their papers), and no state

cases.

The first case, Prignoli v City of New York, 94 CIV. 4125 (KMW), 1996 WL 340001, at

*6 [SDNY June 19, 1996], which again is unpublished and was not annexed to Plaintiffs’ reply

papers in accordance with the court rules, explicitly stated cite CBS Inc. v Arcane Visuals Ltd.,

(156 Misc 2d 665, 667 [Civ Ct 1993]) for the proposition that “[h]arassment is not a cognizable

claim under New York State common law.” Prignoli also based its conclusion that harassment

may be a private cause of action in New York on Long v Beneficial Fin. Co. of New York, (39

AD2d 11, 13 [4th Dept 1972]), a Fourth Department case that found harassment could be the

basis of international infliction of emotional distress, but not its own civil remedy (“where severe

mental pain or anguish is inflicted through a deliberate and malicious campaign of harassment or

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intimidation, a remedy is available in the form of an action for the intentional infliction of

emotional distress”).

Finally, the federal courts have recognized that New York may not recognize harassment

as a tort:

Courts are divided as to whether New York law recognizes harassment as
an independent tort. Claims of damages arising from intimidating conduct
are analyzed variously under a standard inferred from a criminal
harassment statute or as claims of intentional infliction of emotional
distress and, where courts have found that the law permits a cause of
action for harassment, they have often separately analyzed claims for
intentional infliction of emotional distress.
Poulos v City of New York, 14CV3023-LTS, 2016 WL 224135, at *3
[SDNY Jan. 19, 2016] (see Exhibit “1”)

However, contrary to the Federal Court, the First, Second and Third Department has

found that the criminal harassment statute does not imply a private cause of action (see Hartman

v 536/540 E. 5th St. Equities, Inc., 19 AD3d 240, 240 [1st Dept 2005]; see also Adeniran v State,

106 AD3d 844, 845 [2d Dept 2013]; Carroll v Rondout Yacht Basin, Inc., 162 AD3d 1150, 1151

[3d Dept 2018], appeal dismissed, 2018 NY Slip Op 85671 [Ct App Oct. 11, 2018]). Therefore,

the fifth cause of action must also be dismissed.

POINT II
CONTRARY TO PLAINTIFFS’ ASSERTIONS, THE MOTION TO STRIKE PORTIONS
OF THE COMPLAINT IS TIMELY

Plaintiffs assert two rebuttals, without actually alleging that the statements are not

“unnecessary and prejudicial”: (a) the motion is late and (b) the statements were of and

concerning the Plaintiffs.

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While the C.P.L.R. states that a motion to strike must be made within 20 days, as Judge

Kerns has held:

[f]lexibility on the time question is especially appropriate for the motion to strike
under CPLR 3024(b). If the matter in the pleading is prejudicial or scandalous and
irrelevant, it is as much so later in the case as itis at the outset. It would be
preferable for the objectant to make the CPLR 3024(b) motion early, but if there
is really substance to the objection and it is made after the expiration of the 20-
day period, it can still be entertained by the court.
(Kasachkoff v Sujnow, 2016 N.Y. Slip Op. 30049[U] [Sup Ct, New York County
2016][citing Connors, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B,
CPLR C3024:5)

Therefore, the motion can be brought at any time under the court’s general power to

extend time pursuant to C.P.L.R. §2004.

The rules of civil practice protect against the insertion of statements in a pleading.

C.P.L.R. 3024(b) states “a party may move to strike any scandalous or prejudicial matter

unnecessarily inserted in a pleading.”

Having determine that the motion is timely, the Plaintiffs have failed to demonstrate how

statements concerning a non-party and Defendant’s interactions with Plaintiffs’ law firm is

relevant to the action.

POINT III
PLAINTIFFS’ MOTION FOR CONTEMPT SHOULD BE RENEWED, REARGUED,
AND, UPON REARGUMENT, DENIED IN ITS ENTIRETY

Reargument should be granted because the Contempt Order did not include a finding that

Michelle’s action were calculated to or actually did defeat, impair, impede, or prejudice the

rights or remedies of a party to a civil proceeding, a fact that Plaintiffs concede (“[e]ven if

Defendant’s interpretation that the Contempt Order failed to include such recital, which it did”

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[see Plaintiffs’ Memorandum pg. 12]). While Plaintiffs’ argue that the lack of a finding is a

“mere irregularity,” the Plaintiffs’ cite to Farkas v Farkas, (209 AD2d 316, 319 [1st Dept 1994]),

which unequivocally states:

In a case of civil contempt, the court must expressly find that the person's
actions were calculated to, or actually did defeat, impair, impede or
prejudice the rights or remedies of a party to an action or special
proceeding. Moreover, there must be a recital to that effect. Here, there
was no such express finding or recital by the IAS Court.

Accordingly, we modify to reverse the finding of contempt and remand for
an express finding as to whether or not the husband's conduct was
calculated to, or actually did, defeat, impair, impede or prejudice the rights
or remedies of the wife and for a determination and clarification of the
fine to be imposed, limited to the actual injury incurred by the misconduct,
if any.
(Id. [internal citations omitted]).

As such, the order should be reversed.

The Plaintiffs disregard the remainder of Michelle’s arguments concerning the lack of

harm and the continued existence of Plaintiffs’ social media accounts, not because the arguments

were previously made, by presumable because they are unable to rebut the fact they suffered no

harm.

Finally, the Plaintiffs’ do not contest that the ordering of the GoFundMe proceeds to be

turned over were improper.

POINT IV
PLAINTIFFS’ ADMIT THEY MADE STATEMENTS TO THE MEDIA IN VIOLATION
OF THE CONTEMPT ORDER

The contempt motion seeks to hold solely the Plaintiffs in contempt for their violation of

the preliminary injunction. Nowhere in the motion is there an attempt to hold Haejyung Kim in

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contempt personally. Additionally, unlike Plaintiffs’ frivolous contempt application, Michelle is

not seeking to hold Plaintiffs in criminal contempt; only civil.

First, the contempt proceeding differentiates between non-parties and parties to an action.

Judiciary Law § 756 permits an application to punish for a contempt to be made by notice of

motion (McKinney's Judiciary Law § 756). In order to avoid communications with represented

individuals, C.P.L.R. §2103 states “[e]xcept where otherwise prescribed by law or order of court,

papers to be served upon a party in a pending action shall be served upon the party's attorney…

Such service upon an attorney shall be made: (7) by transmitting the paper to the attorney by

electronic means.” (Civil Practice Law and Rules Rule 2103)

Second, Plaintiffs own case, AXA Equit. Life Ins. Co. v Epstein, (29 Misc 3d 689, 691

[Sup Ct 2010]), states that service of a contempt motion upon attorneys is a “waivable” defect.”

The Plaintiffs have appeared on the motion and are arguing the merits of the case and therefore

should be deemed to have waived any defects in service.

Third, dealing specifically with Dr. Song’s statements, Plaintiffs attack the certification

of translation without disputing Dr. Song made the statements and violated the order. The

Plaintiffs’ only contention is that there is no “clear and convincing evidence” of his crime, yet

Dr. Song’s silence (unlike his statements to the media) speaks volumes.

POINT V
THE PRELIMINARY INJUNCTION DATED FEBRUARY 13, 2018 SHOULD BE
VACATED AS NEITHER PARTY ABIDED BY ITS TERMS

Plaintiffs’ ignore the fact that they violated the preliminary injunction as well, as detailed

in Michelle’s contempt allegations. While Plaintiffs attack the contempt motion on procedural

16 of 17
FILED: NEW YORK COUNTY CLERK 10/18/2018 04:58 PM INDEX NO. 157517/2017
NYSCEF DOC. NO. 139 RECEIVED NYSCEF: 10/18/2018

Plaintiffs'
grounds (lack of service, harm, and accurate translation), the conceded the

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October 18, 2018

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January 01, 2017

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Motion,Ex Parte: Great Wall Medical P.C. d/b/a New York Robotic Gynecology & Womens Health, Joon Song v. Michelle Levine

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Motion,Ex Parte: Great Wall Medical P.C. d/b/a New York Robotic Gynecology & Womens Health, Joon Song v. Michelle Levine