Preview
FILED: NASSAU COUNTY CLERK 07/24/2023 06:11 PM INDEX NO. 609867/2021
NYSCEF DOC. NO. 126 RECEIVED NYSCEF: 07/24/2023
EXHIBIT MM
FILED: NASSAU COUNTY CLERK 07/24/2023 06:11 PM INDEX NO. 609867/2021
NYSCEF DOC. NO. 126 RECEIVED NYSCEF: 07/24/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU
______________________________________Ç
LALIT PATEL, M.D. and
LALIT PATEL PHYSICIAN P.C., and COMPLETE
WELLCARE MEDICAL PLLC. Index No.: 609867/2021
Plaintiffs,
-against- Hon. S. Mahon, J.S.C.
Roy
VIMAL BHATT,
Defendant.
____________________________________Ç
PLAINTIFFS'
MEMORANDUM OF LAW IN
SUPPORT OF CROSS-MOTION TO AMEND THE COMPLAINT
AND IN OPPOSITION TO DEFENDANT'S MOTION TO DISMISS
LAW OFFICES OF EDWARD R. HOPKINS, P.C.
Edward R. Hopkins, Esq.
AttorneysforPlaintiffs
1225 Franklin Avenue-Suite522
Garden City, NewYork 11530
(516) 246-9960
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PRELIMINARY STATEMENT
Plaintiffs' Cross-
This Memorandum of Law is respectfully submitted in support of
Defendants'
Motion for permission to amend the complaint and in opposition to Motion
to Dismiss the Complaint. Defendant has raised several legal arguments about the
defamatory statements, and misconstrued the facts and circumstances alleged in the
original complaint. As such, the Plaintiffs have cross-moved to clarify and elaborate on
the facts and circumstances of the original complaint filed in this action. Therefore, the
Plaintiffs have submitted an amended complaint to answer all the issues raised on
Defendant's Motion to Dismiss. Plaintiffs have also submitted an Affidavit in Support of
the Cross-Motion that elaborates on those facts presently known to them.
PROCEDURAL HISTORY
This action was commenced by personal service of the summons and complaint
dated August 3, 2021 on the Defendant on or about November 20, 2021. See the
Complaint annexed in Exhibit A of the Affirmation of Edward R. Hopkins in Support of
the Cross-Motion to Amend the Complaint dated March 25, 2022 (hereinafter "Hopkins
Affirm.").
The Defendant filed the instant Motion to Dismiss the Complaint on January 21,
Plaintiffs'
2022 pursuant to CPLR § 3211(a) 7, on grounds of failure to state a cause of
action. The Preliminary Conference has not been held and there has been no discovery
undertaken in this case.
STATEMENT OF FACTS
For purposes of efficiency, Plaintiffs have provided a detailed statement of facts in
the Amended Complaint annexed at Exhibit C of the Hopkins Affirm. ("Amd. Comp.").
These facts and circumstances are supplemented and explained even further by Plaintiff
1
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Lalit Patel's Affidavit in Support of the Cross-Motion ("Patel Aff.") annexed at Ex. B of the
Hopkins Affirm.
LEGAL ARGUMENT
POINT I
STANDARD OF REVIEW
The Court of Appeals held, when reviewing a Defendant's motion to dismiss a
complaint for failure to state a cause of action [CPLR 3211 (a)(7)], a court must "give the
complaint a liberal construction, accept the allegations as true and provide plaintiffs with
inference"
the benefit of every favorable (Roni LLC v. Arfa, 18 N.Y. 3d 846, 848, 939
N.Y.S. 2d N.E. 2d ). Nomura Home Equity Loan, Inc., Series 2006-
746, 963 123 [2011]
FMZ by H.SBC Bank USA. Nat. Assoc. v. Nomura Credit & Capital, Inc., so N.Y. 3d 572,
582, 69 N.Y.S. 3d 520, 525 (2017).
Indeed, the question of "[w]hether a plaintiff can alternately establish its
allegations is not part of the calculus in determining a motion to dismiss"(EBC I Inc. v.
Goldman, Sachs & Co., 5 N.Y. 3d 11, 19, 799 N.Y.S. 2d 170, 832 N.E. 2d 26 [2005]). Roni
LLC v. Arfa, supra at 848.
Plaintiffs submit that the Defendant has propounded mistaken and false facts in
her motion to dismiss, that is, that the Defendant uttered many defamatory statements
Plaintiffs'
and wrote many defamatory statements to patients without informing or
involving any attorney. Defendant acted on her own in publishing many defamatory
statements to as many as 2000 patients of Plaintiffs. At this time, many of the defamatory
statements and the patients to whom Defendant talked or wrote are unknown to the
Plaintiffs. These facts and individuals will only be learned through subsequent
investigation and discovery.
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Additionally, as part of their cross-motion, Plaintiffs have amended their
complaint to provide additional facts and circumstances to further support the allegations
of five of the seven causes of action in the original complaint. See Amended Complaint at
Ex. C of the Hopkins Affirm. Accordingly, Plaintiffs respectfully submit that they have
stated three valid causes of action for defamation, injurious falsehood and prima facie
tort) and permission to amend the complaint should be granted. Defendant's motion to
dismiss the complaint should be denied by the Court.
POINT II
THE COURT SHOULD PERMIT THE COMPLAINT TO BE AMENDED
PURSUANT TO CPLR 3025(b)
A. The First Cause of Action for Defamation is a Valid Claim Because
Plaintiffs Alleged Facts Sufficient to State a Cause of Action.
Plaintiffs submit that they pleaded a valid cause of action for defamation in the
original complaint. However, in order to address issues raised in Defendant's motion to
dismiss, Plaintiffs amended their complaint and now believe that any pleading
deficiencies in their original complaint have been corrected with respect to the first cause
of action for defamation.
In brief, Defendant argued in the Wolman Affirmation ("Wolman Affirm.") that
Plaintiffs did not (1) provide names of people to whom Defendant spoke; (2) dates of the
defamatory statements; (3) the means of the defamatory communication; (4) what the
exact words of the defamatory statements were. Although Plaintiffs believed that such
details were alleged in the original complaint, Plaintiffs have now provided greater details
3
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about the statements. See the Amended Complaint annexed at Exhibit C of the Hopkins
Affirmation.
Defendant also argues that these statements were made in the context of a judicial
proceeding, the Federal lawsuit, and, as such, are absolutely privileged. Plaintiffs submit
and will demonstrate that Defendant made these defamatory statements to patients, both
current and former, as many as 2000 in toto, prior to any contact with or involvement by
an attorney, and prior to drafting any court document. Defendant made these false
statements, prepared written templates for patients, and distributed them by email with
Plaintiffs'
the intention of harming the reputation and business. See Stega v. New York
Downtown Hosp., 31 N.Y-3d 661, 669 (2018). ("Absolute privilege, which immunizes an
individual from liability in a defamation action, regardless of the declarant's motives, is
generally reserved for communications made by individuals participating in a public
function, such as judicial, legislative, or executive proceedings."). Here, in the instant
case, Defendant did not utter these false and malicious statements in a judicial proceeding
but to many patients with the hope that she could obtain written statements to support
her - as well as to harm the reputation of the Plaintiffs at the same time.
Simply put, Plaintiffs allege that Defendant was conducting, in an assembly-line
like manner, an operation to defame Plaintiffs as she contacted hundreds of their patients.
Here is how the Defendant's scheme worked.
Contrary to Defendant's representations that she did not have any contact
Plaintiffs'
information for patients, Defendant contacted patients she had not talked to
for 5-6 years since she terminated her business relationship in or about August 2015. She
"cold"
made calls to these patients. See the multiple transcriptions of phone calls at
Exhibit D with Patient Charlene Campbell; Exhibit E with Patient Hazel Brooks; Exhibit
4
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F with Patient Rosemary Fordjour; Exhibit H with Patient Charlene Croom; Exhibit I
with Patient Mickel Hossannah; Exhibit K, an initial phone call with Patient Rosie
Exhibit a second phone call with Patient Rosie Williams-
Williams-Langiagne; L,
Langiagne; and Exhibit M with employee-physician, Dr. Ankur Shah. These exhibits are
annexed at the Hopkins Affirmation.
Defendant herself recorded these phone calls which have been authenticated by
transcribers. See Exhibits G and J annexed at the Hopkins Affirmation. Defendant has
also served Responses to Requests for Admissions wherein she admits to the veracity of
the phone calls that she recorded. See Responses to Requests at Exhibit N annexed to the
Hopkins Affirmation. She began calling patients as early as August 2020 and continued
until April, 2021.
After Defendant spoke to these patients, she drafted sample templates for them to
review. These writings also contained false statements about Plaintiffs. Then she revised
"final"
the draft statements and sent the draft statements to her attorneys. Prior to that
contact with her attorneys, Defendant did allof the leg work contacting the patients (while
uttering and publishing these fifteen (15) Defamatory Statements, false and malicious
publications).
Many patients contacted Dr. Patel abut Defendant's efforts and wrote statements
describing what Defendant had said about Dr. Patel and his practice. See statements from
Sabir Ali and Anitra and Alroy Kahn at Exhibits W and X, respectively, annexed to the
Hopkins Affirmation.
In effect, Defendant defamed Plaintiffs on all of her phone calls with patients and
with her own sample templates that she typed (with all kinds of grammatical and spelling
FILED: NASSAU COUNTY CLERK 07/24/2023 06:11 PM INDEX NO. 609867/2021
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errors) that she emailed to the patients. See sample templates at Exhibits O and P
annexed to the Hopkins Affirmation.
The end of the assembly-line like the process concluded in Defendant's attorneys
preparing declarations for later use in the federal case (allegedly to support the
Defendant's arguments).
Plaintiff are not suing any of the witnesses contacted by Defendant as they did not
defame Plaintiffs. What the instant case is based upon is the gross conduct of Defendant
Plaintiffs'
in contacting patients to destroy practice and business after 15 years in the
Brooklyn community and defaming them with many various false and vicious defamatory
statements.
* * * * * * * * *
In evaluating a motion to dismiss pursuant to CPLR 3211(a) (7), the court is
required to accept the allegations of the complaint as true, accord the plaintiff the benefit
of every possible favorable inference, and determine only whether the facts as alleged fit
within any cognizable legal theory. Leon v. Martinez, 84 N.Y. 2d 83, 87-88, 614 N.Y.S. 2d
972, 638 N.E. 2d 511 (1994).
The Second Department in Gallagher v. Kucker & Bruh, LLP, 34 A.D.3d 419, 824
N.Y.S.2d 145 (2d Dept. 2006) discussed the defamation cause of action subject to a
motion to dismiss pursuant to CPLR 3211(a) 7, similar to Plaintiffs claim for defamation
in the instant case before the bar.
In Gall_aghe_r, the Appellate Division affirmed the trial court's decision. The Court
said: "On a motion to dismiss pursuant to CPLR 3211(a)(7) for failure to state a cause of
action, the pleading is to be liberally construed, accepting all of the facts as alleged in the
pleading to be true, and according the plaintiff the benefit of every possible inference.
6
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(see Leon v.Martinez, 84 N.Y.2d 83, 87, 614 N.Y.S.2d 972, 638 N.E.2d 511; Gfonlakai v.
SE, 308 A.D.2d 471, 473, 764 N.Y.S2d 278). Applying these principles to the case at bar,
the allegation that the letter written by the defendant Bruh contained defamatory
statements were sufficient to state a cause of action. Accordingly, the Supreme Court
properly denied that branch of the motion pursuant to CPLR 3211(a)(7) which was to
libel."
dismiss the first cause of action to recover damages for Gallagher at 420.
In the instant case, Defendant provided draft templates and email correspondence
similar to the defendant Brubin the Gallagher case. Defendant Bhatt's motion to dismiss,
likewise, should be denied.
In a second relevant Second Department decision a former employee brought an
action against his former employer, asserting a cause of action for defamation based on
communications that the principals of the employer made to an employment agency. The
Appellate Division affirmed the trial coures decision to deny the motion to dismiss.
Ferrara v. Esquire Bank, 153 A.D.3d 671, 61 N.Y.S.3d 73 (2d Dept. 2017). There the court
considered defendants privilege defense. "To state a cause of action to recover damages
for defamation, a plaintiff must allege that the defendant published a false statement,
without privilege or authorization, to a third party, constituting fault as judged by, at a
minimum, a negligence standard, and it must either cause special harm or constitute
se"
defamation per (Rodriquez v. Daily News, L.P., 142 A.D.3d 1o62, 1063, 37 N.Y.S.3d
612; see El Jamal v. Weil, 116 A.D.3d 732, 733, 986 N.Y.S.2d 146). "A communication
made by one person to another upon a subject in which both have an interest is protected
privilege"
by a qualified (Stillman v. Ford. 22 N.Y.2d 48, 53, 290 N.Y.S.2d 893, 238
N.E.2d 304; see Liberman v. Gelstein, 80 N.Y.2d 429, 437, 590 N.Y.S.2d 857, 605 N.E.2d
344; Colantonia v., Mercy Med. Ctr., 115 A.D.3d 902, 903, 982 N.Y.S.2d 563). However,
7
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privilege"
this "common-interest may be overcome by showing of malice (Colantonio v.
Merep Med.Ctr., 115 A.D.3d at 903, 982 N.Y.S.2d 563; see Kamchi v. Weissman, 125
"malice"
A.D.3d 142, 158 1 N.Y.S.3d 169). "To establish the necessary to defeat the
privilege, the plaintiff may show either common-law malice, i.e., knowledge of falsehood
truth"
of the statement or recldess disregard for the (Dioriov.Ossining Union Free School
Dist., 96 A.D-3d 710, 712, 946 N.Y.S.2d 195, quoting Lieberman v. Gelstein, 80 N.Y.2d at
omitted]."
437-438, 590 N.Y.S.2d 587, 605 N.E.2d 344 [internal quotation marks
The Appellae Court reviewed the facts of the privilege. "Here, ACG, as the agency
that placed the plaintiff with Esquire, had an interest in the reason for the termination of
the plaintiffs employment and as to why Esquire was seeking the return of the placement
fee it had paid ACG for placing the plaintiff. Therefore, the common-interest prbrilege
applies to the allegedly defamatory communications (see Pancza v. Remco Baby, Inc.,
761 F. Supp. 1164 [D.N.J.}).
The Court explained the reason for denying the motion to dismiss. "However,
accepting the facts as alleged in the amended complaint as true, and according the
plaintiff the benefit of every possible favorable inference (see Leon v Martinez, 84 N.Y.2d
at 87, 614 N.Y.S.2d 972, 638 N.E.2d 511), the amended complaint sufficiently alleges
malice to overcome the privilege (see Kamchi v. Weissman, 125 A.D.3d at 158-159, 1
N.Y.S-3d 169 ; Diorio v. Ossining Union Free School Dist.. 96 A.D-3d at 712, 946 N.Y.S.2d
195. "[A] plaintiff has no obligation to show evidentiary facts to support [his or her]
3211(a)(7)'"
allegations of malice on a motion to dismiss pursuant to CPLR Colantonio v.
Mercy Med. Ctr., 115 A.D·3d at 903, 982 N.Y.S.2d 563). The Court held that the Supreme
defendants'
Court properly denied the motion pursuant to CPLR. 3211(a(7) to dismiss the
amended complaint. Ferrara, at 672-673·
8
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In a third decision by the Second Department, the court affirmed the lower court's
defendants'
decision as modified to deny the motion to dismiss. There, the cooperative
corporation, president and board chairman brought a defamation action against
shareholders relating to statements allegedly posted on the website. Here, in the instant
"opinion."
case, there is significant
Preview
FILED: NASSAU COUNTY CLERK 07/24/2023 06:11 PM INDEX NO. 609867/2021 NYSCEF DOC. NO. 126 RECEIVED NYSCEF: 07/24/2023 EXHIBIT MM FILED: NASSAU COUNTY CLERK 07/24/2023 06:11 PM INDEX NO. 609867/2021 NYSCEF DOC. NO. 126 RECEIVED NYSCEF: 07/24/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU ______________________________________Ç LALIT PATEL, M.D. and LALIT PATEL PHYSICIAN P.C., and COMPLETE WELLCARE MEDICAL PLLC. Index No.: 609867/2021 Plaintiffs, -against- Hon. S. Mahon, J.S.C. Roy VIMAL BHATT, Defendant. ____________________________________Ç PLAINTIFFS' MEMORANDUM OF LAW IN SUPPORT OF CROSS-MOTION TO AMEND THE COMPLAINT AND IN OPPOSITION TO DEFENDANT'S MOTION TO DISMISS LAW OFFICES OF EDWARD R. HOPKINS, P.C. Edward R. Hopkins, Esq. AttorneysforPlaintiffs 1225 Franklin Avenue-Suite522 Garden City, NewYork 11530 (516) 246-9960 FILED: NASSAU COUNTY CLERK 07/24/2023 06:11 PM INDEX NO. 609867/2021 NYSCEF DOC. NO. 126 RECEIVED NYSCEF: 07/24/2023 PRELIMINARY STATEMENT Plaintiffs' Cross- This Memorandum of Law is respectfully submitted in support of Defendants' Motion for permission to amend the complaint and in opposition to Motion to Dismiss the Complaint. Defendant has raised several legal arguments about the defamatory statements, and misconstrued the facts and circumstances alleged in the original complaint. As such, the Plaintiffs have cross-moved to clarify and elaborate on the facts and circumstances of the original complaint filed in this action. Therefore, the Plaintiffs have submitted an amended complaint to answer all the issues raised on Defendant's Motion to Dismiss. Plaintiffs have also submitted an Affidavit in Support of the Cross-Motion that elaborates on those facts presently known to them. PROCEDURAL HISTORY This action was commenced by personal service of the summons and complaint dated August 3, 2021 on the Defendant on or about November 20, 2021. See the Complaint annexed in Exhibit A of the Affirmation of Edward R. Hopkins in Support of the Cross-Motion to Amend the Complaint dated March 25, 2022 (hereinafter "Hopkins Affirm."). The Defendant filed the instant Motion to Dismiss the Complaint on January 21, Plaintiffs' 2022 pursuant to CPLR § 3211(a) 7, on grounds of failure to state a cause of action. The Preliminary Conference has not been held and there has been no discovery undertaken in this case. STATEMENT OF FACTS For purposes of efficiency, Plaintiffs have provided a detailed statement of facts in the Amended Complaint annexed at Exhibit C of the Hopkins Affirm. ("Amd. Comp."). These facts and circumstances are supplemented and explained even further by Plaintiff 1 FILED: NASSAU COUNTY CLERK 07/24/2023 06:11 PM INDEX NO. 609867/2021 NYSCEF DOC. NO. 126 RECEIVED NYSCEF: 07/24/2023 Lalit Patel's Affidavit in Support of the Cross-Motion ("Patel Aff.") annexed at Ex. B of the Hopkins Affirm. LEGAL ARGUMENT POINT I STANDARD OF REVIEW The Court of Appeals held, when reviewing a Defendant's motion to dismiss a complaint for failure to state a cause of action [CPLR 3211 (a)(7)], a court must "give the complaint a liberal construction, accept the allegations as true and provide plaintiffs with inference" the benefit of every favorable (Roni LLC v. Arfa, 18 N.Y. 3d 846, 848, 939 N.Y.S. 2d N.E. 2d ). Nomura Home Equity Loan, Inc., Series 2006- 746, 963 123 [2011] FMZ by H.SBC Bank USA. Nat. Assoc. v. Nomura Credit & Capital, Inc., so N.Y. 3d 572, 582, 69 N.Y.S. 3d 520, 525 (2017). Indeed, the question of "[w]hether a plaintiff can alternately establish its allegations is not part of the calculus in determining a motion to dismiss"(EBC I Inc. v. Goldman, Sachs & Co., 5 N.Y. 3d 11, 19, 799 N.Y.S. 2d 170, 832 N.E. 2d 26 [2005]). Roni LLC v. Arfa, supra at 848. Plaintiffs submit that the Defendant has propounded mistaken and false facts in her motion to dismiss, that is, that the Defendant uttered many defamatory statements Plaintiffs' and wrote many defamatory statements to patients without informing or involving any attorney. Defendant acted on her own in publishing many defamatory statements to as many as 2000 patients of Plaintiffs. At this time, many of the defamatory statements and the patients to whom Defendant talked or wrote are unknown to the Plaintiffs. These facts and individuals will only be learned through subsequent investigation and discovery. FILED: NASSAU COUNTY CLERK 07/24/2023 06:11 PM INDEX NO. 609867/2021 NYSCEF DOC. NO. 126 RECEIVED NYSCEF: 07/24/2023 Additionally, as part of their cross-motion, Plaintiffs have amended their complaint to provide additional facts and circumstances to further support the allegations of five of the seven causes of action in the original complaint. See Amended Complaint at Ex. C of the Hopkins Affirm. Accordingly, Plaintiffs respectfully submit that they have stated three valid causes of action for defamation, injurious falsehood and prima facie tort) and permission to amend the complaint should be granted. Defendant's motion to dismiss the complaint should be denied by the Court. POINT II THE COURT SHOULD PERMIT THE COMPLAINT TO BE AMENDED PURSUANT TO CPLR 3025(b) A. The First Cause of Action for Defamation is a Valid Claim Because Plaintiffs Alleged Facts Sufficient to State a Cause of Action. Plaintiffs submit that they pleaded a valid cause of action for defamation in the original complaint. However, in order to address issues raised in Defendant's motion to dismiss, Plaintiffs amended their complaint and now believe that any pleading deficiencies in their original complaint have been corrected with respect to the first cause of action for defamation. In brief, Defendant argued in the Wolman Affirmation ("Wolman Affirm.") that Plaintiffs did not (1) provide names of people to whom Defendant spoke; (2) dates of the defamatory statements; (3) the means of the defamatory communication; (4) what the exact words of the defamatory statements were. Although Plaintiffs believed that such details were alleged in the original complaint, Plaintiffs have now provided greater details 3 FILED: NASSAU COUNTY CLERK 07/24/2023 06:11 PM INDEX NO. 609867/2021 NYSCEF DOC. NO. 126 RECEIVED NYSCEF: 07/24/2023 about the statements. See the Amended Complaint annexed at Exhibit C of the Hopkins Affirmation. Defendant also argues that these statements were made in the context of a judicial proceeding, the Federal lawsuit, and, as such, are absolutely privileged. Plaintiffs submit and will demonstrate that Defendant made these defamatory statements to patients, both current and former, as many as 2000 in toto, prior to any contact with or involvement by an attorney, and prior to drafting any court document. Defendant made these false statements, prepared written templates for patients, and distributed them by email with Plaintiffs' the intention of harming the reputation and business. See Stega v. New York Downtown Hosp., 31 N.Y-3d 661, 669 (2018). ("Absolute privilege, which immunizes an individual from liability in a defamation action, regardless of the declarant's motives, is generally reserved for communications made by individuals participating in a public function, such as judicial, legislative, or executive proceedings."). Here, in the instant case, Defendant did not utter these false and malicious statements in a judicial proceeding but to many patients with the hope that she could obtain written statements to support her - as well as to harm the reputation of the Plaintiffs at the same time. Simply put, Plaintiffs allege that Defendant was conducting, in an assembly-line like manner, an operation to defame Plaintiffs as she contacted hundreds of their patients. Here is how the Defendant's scheme worked. Contrary to Defendant's representations that she did not have any contact Plaintiffs' information for patients, Defendant contacted patients she had not talked to for 5-6 years since she terminated her business relationship in or about August 2015. She "cold" made calls to these patients. See the multiple transcriptions of phone calls at Exhibit D with Patient Charlene Campbell; Exhibit E with Patient Hazel Brooks; Exhibit 4 FILED: NASSAU COUNTY CLERK 07/24/2023 06:11 PM INDEX NO. 609867/2021 NYSCEF DOC. NO. 126 RECEIVED NYSCEF: 07/24/2023 F with Patient Rosemary Fordjour; Exhibit H with Patient Charlene Croom; Exhibit I with Patient Mickel Hossannah; Exhibit K, an initial phone call with Patient Rosie Exhibit a second phone call with Patient Rosie Williams- Williams-Langiagne; L, Langiagne; and Exhibit M with employee-physician, Dr. Ankur Shah. These exhibits are annexed at the Hopkins Affirmation. Defendant herself recorded these phone calls which have been authenticated by transcribers. See Exhibits G and J annexed at the Hopkins Affirmation. Defendant has also served Responses to Requests for Admissions wherein she admits to the veracity of the phone calls that she recorded. See Responses to Requests at Exhibit N annexed to the Hopkins Affirmation. She began calling patients as early as August 2020 and continued until April, 2021. After Defendant spoke to these patients, she drafted sample templates for them to review. These writings also contained false statements about Plaintiffs. Then she revised "final" the draft statements and sent the draft statements to her attorneys. Prior to that contact with her attorneys, Defendant did allof the leg work contacting the patients (while uttering and publishing these fifteen (15) Defamatory Statements, false and malicious publications). Many patients contacted Dr. Patel abut Defendant's efforts and wrote statements describing what Defendant had said about Dr. Patel and his practice. See statements from Sabir Ali and Anitra and Alroy Kahn at Exhibits W and X, respectively, annexed to the Hopkins Affirmation. In effect, Defendant defamed Plaintiffs on all of her phone calls with patients and with her own sample templates that she typed (with all kinds of grammatical and spelling FILED: NASSAU COUNTY CLERK 07/24/2023 06:11 PM INDEX NO. 609867/2021 NYSCEF DOC. NO. 126 RECEIVED NYSCEF: 07/24/2023 errors) that she emailed to the patients. See sample templates at Exhibits O and P annexed to the Hopkins Affirmation. The end of the assembly-line like the process concluded in Defendant's attorneys preparing declarations for later use in the federal case (allegedly to support the Defendant's arguments). Plaintiff are not suing any of the witnesses contacted by Defendant as they did not defame Plaintiffs. What the instant case is based upon is the gross conduct of Defendant Plaintiffs' in contacting patients to destroy practice and business after 15 years in the Brooklyn community and defaming them with many various false and vicious defamatory statements. * * * * * * * * * In evaluating a motion to dismiss pursuant to CPLR 3211(a) (7), the court is required to accept the allegations of the complaint as true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory. Leon v. Martinez, 84 N.Y. 2d 83, 87-88, 614 N.Y.S. 2d 972, 638 N.E. 2d 511 (1994). The Second Department in Gallagher v. Kucker & Bruh, LLP, 34 A.D.3d 419, 824 N.Y.S.2d 145 (2d Dept. 2006) discussed the defamation cause of action subject to a motion to dismiss pursuant to CPLR 3211(a) 7, similar to Plaintiffs claim for defamation in the instant case before the bar. In Gall_aghe_r, the Appellate Division affirmed the trial court's decision. The Court said: "On a motion to dismiss pursuant to CPLR 3211(a)(7) for failure to state a cause of action, the pleading is to be liberally construed, accepting all of the facts as alleged in the pleading to be true, and according the plaintiff the benefit of every possible inference. 6 FILED: NASSAU COUNTY CLERK 07/24/2023 06:11 PM INDEX NO. 609867/2021 NYSCEF DOC. NO. 126 RECEIVED NYSCEF: 07/24/2023 (see Leon v.Martinez, 84 N.Y.2d 83, 87, 614 N.Y.S.2d 972, 638 N.E.2d 511; Gfonlakai v. SE, 308 A.D.2d 471, 473, 764 N.Y.S2d 278). Applying these principles to the case at bar, the allegation that the letter written by the defendant Bruh contained defamatory statements were sufficient to state a cause of action. Accordingly, the Supreme Court properly denied that branch of the motion pursuant to CPLR 3211(a)(7) which was to libel." dismiss the first cause of action to recover damages for Gallagher at 420. In the instant case, Defendant provided draft templates and email correspondence similar to the defendant Brubin the Gallagher case. Defendant Bhatt's motion to dismiss, likewise, should be denied. In a second relevant Second Department decision a former employee brought an action against his former employer, asserting a cause of action for defamation based on communications that the principals of the employer made to an employment agency. The Appellate Division affirmed the trial coures decision to deny the motion to dismiss. Ferrara v. Esquire Bank, 153 A.D.3d 671, 61 N.Y.S.3d 73 (2d Dept. 2017). There the court considered defendants privilege defense. "To state a cause of action to recover damages for defamation, a plaintiff must allege that the defendant published a false statement, without privilege or authorization, to a third party, constituting fault as judged by, at a minimum, a negligence standard, and it must either cause special harm or constitute se" defamation per (Rodriquez v. Daily News, L.P., 142 A.D.3d 1o62, 1063, 37 N.Y.S.3d 612; see El Jamal v. Weil, 116 A.D.3d 732, 733, 986 N.Y.S.2d 146). "A communication made by one person to another upon a subject in which both have an interest is protected privilege" by a qualified (Stillman v. Ford. 22 N.Y.2d 48, 53, 290 N.Y.S.2d 893, 238 N.E.2d 304; see Liberman v. Gelstein, 80 N.Y.2d 429, 437, 590 N.Y.S.2d 857, 605 N.E.2d 344; Colantonia v., Mercy Med. Ctr., 115 A.D.3d 902, 903, 982 N.Y.S.2d 563). However, 7 FILED: NASSAU COUNTY CLERK 07/24/2023 06:11 PM INDEX NO. 609867/2021 NYSCEF DOC. NO. 126 RECEIVED NYSCEF: 07/24/2023 privilege" this "common-interest may be overcome by showing of malice (Colantonio v. Merep Med.Ctr., 115 A.D.3d at 903, 982 N.Y.S.2d 563; see Kamchi v. Weissman, 125 "malice" A.D.3d 142, 158 1 N.Y.S.3d 169). "To establish the necessary to defeat the privilege, the plaintiff may show either common-law malice, i.e., knowledge of falsehood truth" of the statement or recldess disregard for the (Dioriov.Ossining Union Free School Dist., 96 A.D-3d 710, 712, 946 N.Y.S.2d 195, quoting Lieberman v. Gelstein, 80 N.Y.2d at omitted]." 437-438, 590 N.Y.S.2d 587, 605 N.E.2d 344 [internal quotation marks The Appellae Court reviewed the facts of the privilege. "Here, ACG, as the agency that placed the plaintiff with Esquire, had an interest in the reason for the termination of the plaintiffs employment and as to why Esquire was seeking the return of the placement fee it had paid ACG for placing the plaintiff. Therefore, the common-interest prbrilege applies to the allegedly defamatory communications (see Pancza v. Remco Baby, Inc., 761 F. Supp. 1164 [D.N.J.}). The Court explained the reason for denying the motion to dismiss. "However, accepting the facts as alleged in the amended complaint as true, and according the plaintiff the benefit of every possible favorable inference (see Leon v Martinez, 84 N.Y.2d at 87, 614 N.Y.S.2d 972, 638 N.E.2d 511), the amended complaint sufficiently alleges malice to overcome the privilege (see Kamchi v. Weissman, 125 A.D.3d at 158-159, 1 N.Y.S-3d 169 ; Diorio v. Ossining Union Free School Dist.. 96 A.D-3d at 712, 946 N.Y.S.2d 195. "[A] plaintiff has no obligation to show evidentiary facts to support [his or her] 3211(a)(7)'" allegations of malice on a motion to dismiss pursuant to CPLR Colantonio v. Mercy Med. Ctr., 115 A.D·3d at 903, 982 N.Y.S.2d 563). The Court held that the Supreme defendants' Court properly denied the motion pursuant to CPLR. 3211(a(7) to dismiss the amended complaint. Ferrara, at 672-673· 8 FILED: NASSAU COUNTY CLERK 07/24/2023 06:11 PM INDEX NO. 609867/2021 NYSCEF DOC. NO. 126 RECEIVED NYSCEF: 07/24/2023 In a third decision by the Second Department, the court affirmed the lower court's defendants' decision as modified to deny the motion to dismiss. There, the cooperative corporation, president and board chairman brought a defamation action against shareholders relating to statements allegedly posted on the website. Here, in the instant "opinion." case, there is significant