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FILED: KINGS COUNTY CLERK 01/17/2024 09:21 PM INDEX NO. 521498/2023
NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 01/17/2024
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
YEVGENY LEVIN,
Plaintiff, Index No. 521498/2023
-against- ATTORNEY AFFIRMATION IN
OPPOSITION TO
DEFENDANT’S ORDER TO
RICHARD W. YOUNG SHOW CAUSE AND MOTION
Defendant. TO DISMISS
Alan Vaitzman, Esq., attorney for Yevgeny Levin, and the Levin Law Group PLLC, hereby
affirms the following pursuant to to CPLR 2106 and under the penalties of perjury:
STATEMENT OF FACTS
1. On or about 06/18/2021, Melvin Carpio, represented by the Levin Law Group PLLC,
filed a supreme court action in the county of Suffolk for the return of a down payment as
a result of a residential land sale contract that failed to come to a close. Such action bears
index number 611610/2021.
2. On or about 11/17/2021, Cory Hal Morris, represented by Defendant, Richard W. Young,
Esq., filed a supreme court action in the county of Suffolk for, amongst other things, an
action of slander of title due to a filed notice of pendency in the clerk of land records
office of Suffolk county. Such action bears index number 621678/2021.
3. Within the case bearing index number 621678/2021, Defendant repeatedly harasses
Plaintiff with an egregious amount of motions to Renew/Reargue motions. A handful of
these motions continue to be filed even after judicial review and decisions have been
made denying same.
4. In one of Defendant’s more recent affirmations, Defendant makes various statements
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about a former employee of the Levin Law Group PLLC. Please see line 7, 14, 36, 38,
51, 100, 116, and 127 of such affirmation. A copy of such affirmation is annexed hereto
as Exhibit 1.
5. Paragraph 7 of Exhibit 1 reflects that Richard W. Young stated:
“Defendant’s. . . did provide conclusory affidavits
which, among other things, evidence that the
Defendants law firm . . . terminated the attorney who
failed to show to the time-of-the-essence real estate
closings, neglected Defendant Melvin Carpio’s file
and now is making money off what is attorney
malpractice.”
6. Paragraph 14 of Exhibit 1 reflects that Richard W. Young stated:
“Plaintiff submits additional facts show that the
Defendant Levin Law Group terminated the attorney
who neglected its client, Defendant Melvin Carpio,
file for which it now appears, submitting affidavit
testimony, but has Melvin Carpio paying for a pro
se.”
7. Paragraph 36 of Exhibit 1 reflects that Richard W. Young stated:
“Defendants concede it terminated the attorney
handling the matter - likely for the complete failure
to show at a time of the essence closing/ignore
Melvin Carpio’s file.”
8. Paragraph 51 of Exhibit 1 reflects that Richard W. Young stated:
“Defendants now concede it terminated staff
handling the Defendant Melvin Carpio closing - it
appears that their actions are done to cover up
attorney malpractice.”
9. Paragraph 100 of Exhibit 1 reflects that Richard W. Young stated:
“Renewal and Reargument is made because
Defendants submitted an affidavit stating that the
attorney handling the file was terminated and thus
shows its wrongdoing.”
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10. Paragraph 116 of Exhibit 1 reflects that Richard W. Young stated:
“The Plaintiff simply sought to sell a personal
residence - the Defendant defaulted, ignored all
correspondence and his attorneys, after it now (thus
the basis for renewal and reargument of this motion)
concedes that the attorney handling the file was
terminated.”
11. Paragraph 127 of Exhibit 1 reflects that Richard W. Young stated:
Yevgeny Levin submits that he terminated the
employee who he should have overseen who, it
should be clear now, defaulted on behalf of its client
Defendant Melvin Carpio.”
12. Pursuant to such aforementioned statements, among others, Plaintiff’s now bring this
defamation cause due to Defendant’s complete and utter disregard for the truth and
recklessness thereof.
STANDARD OF REVIEW
13. Should this court treat these preliminary motions as one of summary judgment rather than
an ordinary Order to Show cause in accordance with statutory directive CPLR 3212(h),
summary judgment is an appropriate remedy when no genuine issues of triable fact exist
(CPLR 3212). On a motion for summary judgment the moving party bears the initial
burden of submitting evidence that demonstrates that the record is devoid of any triable
issues of fact and the moving party is entitled to judgment as a matter of law. See
Zukerman v. City of New York, 49 N.Y.2d 557 (1980).
AS AND FOR A FIRST OPPOSITION
PLAINTIFF’S CAUSE OF ACTION IS ROOTED IN A SUBSTANTIAL BASIS IN FACT AND LAW
14. Judgment must be granted in favor of Plaintiff and deny Defendant’s Order to Show
Cause, motion for Summary Judgment, and costs as Plaintiff’s claims are rooted in
substantial fact and law to support a judicial determination of such aforementioned
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statements constituting defamation per se.
15. It is well established law that defamation per se contains four main elements. They are (1)
a false statement that is (2) published to a third party (3) without privilege or
authorization, and that (4) causes harm, unless the statement is one of the types of
publication actionable regardless of harm. A statement is defamatory on its face when it
suggests improper performance of one’s professional duties or unprofessional conduct.
See Caesars Entm't Operating Co. v. Appaloosa Inv. Ltd., 2015 N.Y. Slip Op. 51095, 4
(N.Y. Sup. Ct. 2015).
16. Proof of special damages is unnecessary if Plaintiff establishes defamation per se because
“injury to reputation is presumed and the words are actionable on their face.”Defamation
per se includes statements that are incompatible with a person or company’s profession,
trade, or business. A statement of opinion is “actionable only if it implies the allegation
of undisclosed defamatory fact as the basis for the opinion.” See Mchutchison v. Eason
Horticultural Res., Inc., CIVIL No. 21-65-DLB-CJS, at *19 (E.D. Ky. June 22, 2021)
17. The court in Konig v. CSC Holdings, LLC agreed with sister courts and previous rulings
to hold the opinion that:
“In determining whether a complaint states a cause of action to
recover damages for defamation, the dispositive inquiry is whether
a reasonable listener or reader could have concluded that the
statements were conveying facts about the plaintiff” (Goldberg v.
Levine, 97 A.D.3d 725, 725, 949 N.Y.S.2d 692). Further, “[a]
false statement constitutes defamation per se when it charges
another with a serious crime or tends to injure another in his or
her trade, business, or profession” (Geraci v. Probst, 61 A.D.3d at
718, 877 N.Y.S.2d 386).”)” Emphasis added.
See Konig v. CSC Holdings, LLC, 977 N.Y.S.2d 756, 758 (N.Y.
App. Div. 2013)
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18. Even so a court of competent jurisdiction may still, absent any privilege, send the issue to
a jury for a determination of damages. See Geraci v. Probst, 61 A.D.3d 717, 718-19 (N.Y.
App. Div. 2009)
19. The court in Johnson v. Resources for Human Development affirms that:
“The court determines whether a privilege applies but the jury
considers whether that privilege was abused. Bargerstock v.
Washington Greene Community Action Corp., 397 Pa. Super. 403,
411, 580 A.2d 361, 364 (1990) (citing Montgomery v. Dennison,
363 Pa. 255, 69 A.2d 520 (1949).
See Johnson v. Resources for Human Development, 860 F. Supp.
218, 223 (E.D. Pa. 1994)
20. On the other hand, almost always, statements of opinion cannot be claimed as the basis
for any sort of defamatory suit. This rule conditional only as such that:
a. Johnson v. Resources for Human Development, 860 F. Supp. 218, 221 (E.D. Pa.
1994) (“ Opinions are actionable which in context reasonably imply to intended
recipients that undisclosed defamatory facts justify the opinion. Baker, 532 A.2d
at 402; Dougherty v. Boyertown Times, 377 Pa. Super. 462, 478, 547 A.2d 778,
782-3 (1988).”)
b. Mchutchison v. Eason Horticultural Res., Inc., CIVIL No. 21-65-DLB-CJS, at
*19 (E.D. Ky. June 22, 2021) (“A statement of opinion is "actionable only if it
implies the allegation of undisclosed defamatory fact as the basis for the opinion."
Yancey v. Hamilton, 786 S.W.2d 854, 857 (Ky. 1989) (quoting Restatement
(Second) of Torts § 566 (1977)).”)
21. In this current pertinent case presented before the court Richard W. Young openly made
various statements of fact that are (1) knowingly false (2) publicly to a third party (3)
without privilege(discussed below) or authorization that (4) severely injure Plaintiff in his
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or her trade, business, or profession, (5) imputes incompetence dishonesty or lack of
integrity in business conduct, (6) ridicule, disgrace, induce an evil opinion of him in the
minds of right-thinking persons, and (7) suggests improper performance of one’s
professional duties, unprofessional conduct, and malpractice.
22. Defendant made various statements in his affirmation (Exhibit 1). Whether or not any
such privilege should apply shall be further discussed below.
23. These were not statements of opinion. They were assertions of fact.
24. Plaintiff contends that Yevgeny Levin submitted an affidavit that purports to state that he
terminated a previously employed attorney in charge of Melvin Carpios file.
25. This statement is blatantly false and untrue. No such affidavit, affirmation, or statement
in any form exists from Yevgeny Levin or any other person from the Levin Law Group,
PLLC. If Defendant purports to have any such document, Plaintiff invites Defendant to
present it to this court. A copy of an affirmation in support is annexed hereto as Exhibit 2.
26. Defendant conjured these facts in hopes of blemishing the Levin Law Group, PLLC as a
reputable firm as well as Yevgeny Levin as the acting partner and owner therein to gain
better ground in the underlying case.
27. Defendant knew that no such document existed and yet made an affirmative statement to
the underlying court, and the public, that such actions occurred at the behest of Yevgeny
Levin.
28. Richard W. Young then decided to double down on his defamatory statements to say that
Yevgeny Levin conceded to terminating his employee’s employment likely due to
malpractice.
29. These statements, specifically the assertion of possible malpractice, are egregious fictions
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and are not ones that potential clients, nor the public, view lightly in the legal profession.
30. Since filing those statements, an affidavit by Alex Golant, the former employee of the
Levin Law Group PLLC, has been filed in the case bearing index number 621678/2021.
A copy of such affidavit shall be annexed hereto as Exhibit 3.
31. Among the already aforementioned statements mentioned herein, it seems as though
Richard Young, along with his attorney, believe they are granted imputed immunity for a
complete disregard for the facts presented to this, or any, court whatsoever.
32. In Defendant’s statement of facts, he contends:
a. Paragraph 27 states that Christopher Fromme contacted Mr. Young by email
stating that Mr. Young, as an attorney, had lied in the Affirmation in Opposition.
Defendant referenced Exhibit D as evidence.
b. Paragraph 28 states that Mr. Fromme intended to file suit against Mr. Young and
did in fact do so on those basis.
33. To address paragraph 27 of Defendant’s statement of facts, this is not only not true, but
the duly filed referenced exhibit shows nothing of the sort. It was not Mr. Fromme that
contacted Mr. Young, it was Yevgeny Levin. The email contained two things: (1) a line
that stated “Even though you deserve no courtesy, a courtesy copy is nevertheless
attached”, and (2) an attached courtesy copy of the initiating complaint of this current
suit. Nothing that was stated in Defendant’s statement of facts paragraph 27 is in fact
true. No statements of accused untruthfulness are presented in such an exhibit.
34. To address paragraph 28 of Defendant’s statement of facts, it is not Mr. Fromme that filed
suit against Richard W. Young. It was Yevgany Levin by and through representation.
Nothing that was stated in Defendant’s statement of facts paragraph 28 is true.
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35. These are just a few examples of where neither Richard W. Young, nor his counsel, show
single regard for the factual importance of their statements under oath to any court of any
county.
36. As such, any and all of Richard W. Young’s statements in his affirmation herein
mentioned and at issue are prima facie evidence of defamation per se. Such statements
were false and defamatory concerning Plaintiff, in an unprivileged public communication
(discussed below), with the knowledge or complete disregard thereof that such statements
were in fact false or had doubts as to their truth.
37. As such, Plaintiff’s claim of defamation is in fact rooted in substantial fact and law and
judgment must be granted in favor of Plaintiff to deny Defendant’s motion for summary
judgment to dismiss Plaintiff’s complaint.
AS AND FOR A SECOND OPPOSITION
DEFENDANT ASSERTED SUCH STATEMENTS WITH MALICE THEREBY DISSOLVING PRIVILEGE
38. Judgment must be granted in favor of Plaintiff and deny Defendant’s order to show cause
and motion for summary judgment as such statements at issue are not extended the luxury
of any such absolute or qualified privilege because Defendant made such statements with
malicious intent and with knowledge of their falsity.
39. Although the Defendant has evidently perjured himself in previous pleadings, Defendant
is not mistaken when mentioning that in certain arenas a qualified privilege does in fact
exist that may shield statements from being acted upon.
40. The court in Liberman v. Geldstein agreed and stated that that courts have long
recognized such an immunity and that when a compelling public policy requires that the
speaker be immune from suit, the law affords an absolute privilege. See Liberman v.
Gelstein, 80 N.Y.2d 429, 437 (N.Y. 1992)
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41. Although being sympathetic to the speaker in such circumstances, the court understood
that such privileges only go so far. The court stated:
“The shield provided by a qualified privilege may be dissolved if
plaintiff can demonstrate that defendant spoke with "malice"
(see, Park Knoll Assocs. v Schmidt, 59 N.Y.2d, at 211, supra).
Under common law, malice meant spite or ill will (see, Stillman v
Ford, 22 N.Y.2d, at 53, supra; Shapiro v Health Ins. Plan, 7 N.Y.2d,
at 61, supra). In New York Times Co. v Sullivan ( 376 U.S. 254),
however, the Supreme Court established an "actual malice"
standard for certain cases governed by the First Amendment:
"knowledge that [the statement] was false or * * * reckless
disregard of whether it was false or not" ( 376 US, at 279-280).
Consequently, the term "malice" has become somewhat confused
(see, Mahoney v Adirondack Publ. Co., 71 N.Y.2d 31, 36, n 1; see
also, Greenbelt Publ. Assn. v Bresler, 398 U.S. 6, 10 [trial court
erred in First Amendment case by charging jury under
common-law malice standard]). Indeed, as the Supreme Court
itself recently acknowledged (Masson v New Yorker Mag., 501 US
___, ___, 111 S Ct 2419, 2429-2430):
"Actual malice under the New York Times standard should not be
confused with the concept of malice as an evil intent or a motive
arising from spite or ill will * * * We have used the term actual
malice as a shorthand to describe the First Amendment protections
for speech injurious to reputation and we continue to do so here.
But the term can confuse as well as enlighten. In this respect, the
phrase may be an unfortunate one."
Nevertheless, malice has now assumed a dual meaning, and we
have recognized that the constitutional as well as the common-law
standard will suffice to defeat a conditional privilege (see, Loughry
v Lincoln First Bank, 67 N.Y.2d, at 376, supra; O'Rorke v
Carpenter, 55 N.Y.2d 798, 799; Stillman v Ford, 22 N.Y.2d, at 53,
supra; see also, Restatement §§ 600, 603, comment a). Under the
Times malice standard, the plaintiff must demonstrate that the
"statements [were] made with [a] high degree of awareness of
their probable falsity" (Garrison v Louisiana, 379 U.S. 64, 74). In
other words, there "must be sufficient evidence to permit the
conclusion that the defendant in fact entertained serious doubts
as to the truth of [the] publication" (St. Amant v Thompson, 390
U.S. 727, 731; see also, Restatement § 600, comment b).
Emphasis added.
See Liberman v. Gelstein, 80 N.Y.2d 429, 437-38 (N.Y. 1992)
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42. Defendant knew such statements were false.
43. No such affidavit on behalf of Yevgeny Levin exists. Not a paper draft, electronic copy,
video recording, audio recording, social media message, tweet, or any such codified
record thereof.
44. Defendant simply stated a fallacy and attempted to pass it off as the truth.
45. The undoubted privilege of statements being immune from suit is understandable and
acknowledged but the goal posts of the scope of such protection is not absolute.
46. Having such a broad scope of this immunity would allow any and all parties to litigation
to merely assert anything and everything they may think is true, untrue, or completely
disregard the possible truth therein and claim the protections of the privileged immunity
veil. This is not something that public policy, the legislation, nor the courts intended on
upholding.
47. Such statements were asserted as fact with full malicious intent to harm, discredit, and
assert false professional misconduct as Defendant knew and understood their factual
assertions were false.
48. Such statements cannot be seen to have any other effect to the public eye other than to
draw animosity and distaste towards Plaintiff and his firm.
49. Due to Defendant’s knowledge of their assertions falsity, judgment must be granted in
favor of Plaintiff to deny Defendant’s order to show cause and motion for summary
judgment as such statements at issue were not extended the luxury of any such absolute
or qualified privilege because Defendant made such statements with malicious intent and
with the knowledge of their falsity.
AS AND FOR A THIRD OPPOSITION
PLAINTIFF’S CLAIMS PASS LEGAL MUSTER AND SURVIVE THE THRESHOLD OF A MOTION
FOR SUMMARY JUDGMENT UNDER SLAPP/ANTI-SLAPP
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50. Plaintiff’s claims herein pass legal muster and must survive Defendant’s motion to
dismiss herein regarding SLAPP/ANTI-SLAPP laws and rules insomuch that Plaintiff
has met the burden of supporting their position in substantial fact and law as well as
presenting this court with several triable issues of material fact.
51. Viewing such facts in light most favorable to the non-moving party, there seems to be a
triable issue of material fact.
52. SLAPP/ANTI-SLAPP laws alike are passed and upheld to protect parties from authorized
or privileged claims and statements throughout the course of public petition and
litigation.
53. As previously discussed, it can clearly be seen here that since such defamatory per se
statements were asserted with a malicious intent, no such privilege can be afforded and
therefore do not fall within the scope of SLAPP/ANTI-SLAPP law definitions and
protections of preventing parties from acting upon known protected speech.
54. As such, the remaining facts to be determined here are (1) whether such referenced
documents in fact exist, (2) whether the facts stated therein are true, and (3) whether or
not, if false, did Defendant, or his counsel know of their falsity and purport to pass it off
to any such court as the truth.
55. Due to the non-application of any such SLAPP/ANTI-SLAPP laws for lack of privilege,
Federal or State alike, Plaintiff’s claims must be seen to pass SLAPP/ANTI-SLAPP
muster to continue this pertinent case in its ordinary due course.
WHEREFORE, Plaintiff respectfully pleads this Honorable Court for the following relief:
(1) To deny Defendant’s Order to Show Cause and Motion for Summary judgment in its
entirety;
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(2) Any further relief as this court may deem necessary and proper.
Date: 1/17/2024
_________________________________
Alan Vaitzman, Esq.,
Levin Law Group PLLC
2102 Avenue Z, #205
Breooklyn, NY 11235
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Preview
FILED: KINGS COUNTY CLERK 01/17/2024 09:21 PM INDEX NO. 521498/2023 NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 01/17/2024 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS YEVGENY LEVIN, Plaintiff, Index No. 521498/2023 -against- ATTORNEY AFFIRMATION IN OPPOSITION TO DEFENDANT’S ORDER TO RICHARD W. YOUNG SHOW CAUSE AND MOTION Defendant. TO DISMISS Alan Vaitzman, Esq., attorney for Yevgeny Levin, and the Levin Law Group PLLC, hereby affirms the following pursuant to to CPLR 2106 and under the penalties of perjury: STATEMENT OF FACTS 1. On or about 06/18/2021, Melvin Carpio, represented by the Levin Law Group PLLC, filed a supreme court action in the county of Suffolk for the return of a down payment as a result of a residential land sale contract that failed to come to a close. Such action bears index number 611610/2021. 2. On or about 11/17/2021, Cory Hal Morris, represented by Defendant, Richard W. Young, Esq., filed a supreme court action in the county of Suffolk for, amongst other things, an action of slander of title due to a filed notice of pendency in the clerk of land records office of Suffolk county. Such action bears index number 621678/2021. 3. Within the case bearing index number 621678/2021, Defendant repeatedly harasses Plaintiff with an egregious amount of motions to Renew/Reargue motions. A handful of these motions continue to be filed even after judicial review and decisions have been made denying same. 4. In one of Defendant’s more recent affirmations, Defendant makes various statements 1 of 12 FILED: KINGS COUNTY CLERK 01/17/2024 09:21 PM INDEX NO. 521498/2023 NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 01/17/2024 about a former employee of the Levin Law Group PLLC. Please see line 7, 14, 36, 38, 51, 100, 116, and 127 of such affirmation. A copy of such affirmation is annexed hereto as Exhibit 1. 5. Paragraph 7 of Exhibit 1 reflects that Richard W. Young stated: “Defendant’s. . . did provide conclusory affidavits which, among other things, evidence that the Defendants law firm . . . terminated the attorney who failed to show to the time-of-the-essence real estate closings, neglected Defendant Melvin Carpio’s file and now is making money off what is attorney malpractice.” 6. Paragraph 14 of Exhibit 1 reflects that Richard W. Young stated: “Plaintiff submits additional facts show that the Defendant Levin Law Group terminated the attorney who neglected its client, Defendant Melvin Carpio, file for which it now appears, submitting affidavit testimony, but has Melvin Carpio paying for a pro se.” 7. Paragraph 36 of Exhibit 1 reflects that Richard W. Young stated: “Defendants concede it terminated the attorney handling the matter - likely for the complete failure to show at a time of the essence closing/ignore Melvin Carpio’s file.” 8. Paragraph 51 of Exhibit 1 reflects that Richard W. Young stated: “Defendants now concede it terminated staff handling the Defendant Melvin Carpio closing - it appears that their actions are done to cover up attorney malpractice.” 9. Paragraph 100 of Exhibit 1 reflects that Richard W. Young stated: “Renewal and Reargument is made because Defendants submitted an affidavit stating that the attorney handling the file was terminated and thus shows its wrongdoing.” 2 of 12 FILED: KINGS COUNTY CLERK 01/17/2024 09:21 PM INDEX NO. 521498/2023 NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 01/17/2024 10. Paragraph 116 of Exhibit 1 reflects that Richard W. Young stated: “The Plaintiff simply sought to sell a personal residence - the Defendant defaulted, ignored all correspondence and his attorneys, after it now (thus the basis for renewal and reargument of this motion) concedes that the attorney handling the file was terminated.” 11. Paragraph 127 of Exhibit 1 reflects that Richard W. Young stated: Yevgeny Levin submits that he terminated the employee who he should have overseen who, it should be clear now, defaulted on behalf of its client Defendant Melvin Carpio.” 12. Pursuant to such aforementioned statements, among others, Plaintiff’s now bring this defamation cause due to Defendant’s complete and utter disregard for the truth and recklessness thereof. STANDARD OF REVIEW 13. Should this court treat these preliminary motions as one of summary judgment rather than an ordinary Order to Show cause in accordance with statutory directive CPLR 3212(h), summary judgment is an appropriate remedy when no genuine issues of triable fact exist (CPLR 3212). On a motion for summary judgment the moving party bears the initial burden of submitting evidence that demonstrates that the record is devoid of any triable issues of fact and the moving party is entitled to judgment as a matter of law. See Zukerman v. City of New York, 49 N.Y.2d 557 (1980). AS AND FOR A FIRST OPPOSITION PLAINTIFF’S CAUSE OF ACTION IS ROOTED IN A SUBSTANTIAL BASIS IN FACT AND LAW 14. Judgment must be granted in favor of Plaintiff and deny Defendant’s Order to Show Cause, motion for Summary Judgment, and costs as Plaintiff’s claims are rooted in substantial fact and law to support a judicial determination of such aforementioned 3 of 12 FILED: KINGS COUNTY CLERK 01/17/2024 09:21 PM INDEX NO. 521498/2023 NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 01/17/2024 statements constituting defamation per se. 15. It is well established law that defamation per se contains four main elements. They are (1) a false statement that is (2) published to a third party (3) without privilege or authorization, and that (4) causes harm, unless the statement is one of the types of publication actionable regardless of harm. A statement is defamatory on its face when it suggests improper performance of one’s professional duties or unprofessional conduct. See Caesars Entm't Operating Co. v. Appaloosa Inv. Ltd., 2015 N.Y. Slip Op. 51095, 4 (N.Y. Sup. Ct. 2015). 16. Proof of special damages is unnecessary if Plaintiff establishes defamation per se because “injury to reputation is presumed and the words are actionable on their face.”Defamation per se includes statements that are incompatible with a person or company’s profession, trade, or business. A statement of opinion is “actionable only if it implies the allegation of undisclosed defamatory fact as the basis for the opinion.” See Mchutchison v. Eason Horticultural Res., Inc., CIVIL No. 21-65-DLB-CJS, at *19 (E.D. Ky. June 22, 2021) 17. The court in Konig v. CSC Holdings, LLC agreed with sister courts and previous rulings to hold the opinion that: “In determining whether a complaint states a cause of action to recover damages for defamation, the dispositive inquiry is whether a reasonable listener or reader could have concluded that the statements were conveying facts about the plaintiff” (Goldberg v. Levine, 97 A.D.3d 725, 725, 949 N.Y.S.2d 692). Further, “[a] false statement constitutes defamation per se when it charges another with a serious crime or tends to injure another in his or her trade, business, or profession” (Geraci v. Probst, 61 A.D.3d at 718, 877 N.Y.S.2d 386).”)” Emphasis added. See Konig v. CSC Holdings, LLC, 977 N.Y.S.2d 756, 758 (N.Y. App. Div. 2013) 4 of 12 FILED: KINGS COUNTY CLERK 01/17/2024 09:21 PM INDEX NO. 521498/2023 NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 01/17/2024 18. Even so a court of competent jurisdiction may still, absent any privilege, send the issue to a jury for a determination of damages. See Geraci v. Probst, 61 A.D.3d 717, 718-19 (N.Y. App. Div. 2009) 19. The court in Johnson v. Resources for Human Development affirms that: “The court determines whether a privilege applies but the jury considers whether that privilege was abused. Bargerstock v. Washington Greene Community Action Corp., 397 Pa. Super. 403, 411, 580 A.2d 361, 364 (1990) (citing Montgomery v. Dennison, 363 Pa. 255, 69 A.2d 520 (1949). See Johnson v. Resources for Human Development, 860 F. Supp. 218, 223 (E.D. Pa. 1994) 20. On the other hand, almost always, statements of opinion cannot be claimed as the basis for any sort of defamatory suit. This rule conditional only as such that: a. Johnson v. Resources for Human Development, 860 F. Supp. 218, 221 (E.D. Pa. 1994) (“ Opinions are actionable which in context reasonably imply to intended recipients that undisclosed defamatory facts justify the opinion. Baker, 532 A.2d at 402; Dougherty v. Boyertown Times, 377 Pa. Super. 462, 478, 547 A.2d 778, 782-3 (1988).”) b. Mchutchison v. Eason Horticultural Res., Inc., CIVIL No. 21-65-DLB-CJS, at *19 (E.D. Ky. June 22, 2021) (“A statement of opinion is "actionable only if it implies the allegation of undisclosed defamatory fact as the basis for the opinion." Yancey v. Hamilton, 786 S.W.2d 854, 857 (Ky. 1989) (quoting Restatement (Second) of Torts § 566 (1977)).”) 21. In this current pertinent case presented before the court Richard W. Young openly made various statements of fact that are (1) knowingly false (2) publicly to a third party (3) without privilege(discussed below) or authorization that (4) severely injure Plaintiff in his 5 of 12 FILED: KINGS COUNTY CLERK 01/17/2024 09:21 PM INDEX NO. 521498/2023 NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 01/17/2024 or her trade, business, or profession, (5) imputes incompetence dishonesty or lack of integrity in business conduct, (6) ridicule, disgrace, induce an evil opinion of him in the minds of right-thinking persons, and (7) suggests improper performance of one’s professional duties, unprofessional conduct, and malpractice. 22. Defendant made various statements in his affirmation (Exhibit 1). Whether or not any such privilege should apply shall be further discussed below. 23. These were not statements of opinion. They were assertions of fact. 24. Plaintiff contends that Yevgeny Levin submitted an affidavit that purports to state that he terminated a previously employed attorney in charge of Melvin Carpios file. 25. This statement is blatantly false and untrue. No such affidavit, affirmation, or statement in any form exists from Yevgeny Levin or any other person from the Levin Law Group, PLLC. If Defendant purports to have any such document, Plaintiff invites Defendant to present it to this court. A copy of an affirmation in support is annexed hereto as Exhibit 2. 26. Defendant conjured these facts in hopes of blemishing the Levin Law Group, PLLC as a reputable firm as well as Yevgeny Levin as the acting partner and owner therein to gain better ground in the underlying case. 27. Defendant knew that no such document existed and yet made an affirmative statement to the underlying court, and the public, that such actions occurred at the behest of Yevgeny Levin. 28. Richard W. Young then decided to double down on his defamatory statements to say that Yevgeny Levin conceded to terminating his employee’s employment likely due to malpractice. 29. These statements, specifically the assertion of possible malpractice, are egregious fictions 6 of 12 FILED: KINGS COUNTY CLERK 01/17/2024 09:21 PM INDEX NO. 521498/2023 NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 01/17/2024 and are not ones that potential clients, nor the public, view lightly in the legal profession. 30. Since filing those statements, an affidavit by Alex Golant, the former employee of the Levin Law Group PLLC, has been filed in the case bearing index number 621678/2021. A copy of such affidavit shall be annexed hereto as Exhibit 3. 31. Among the already aforementioned statements mentioned herein, it seems as though Richard Young, along with his attorney, believe they are granted imputed immunity for a complete disregard for the facts presented to this, or any, court whatsoever. 32. In Defendant’s statement of facts, he contends: a. Paragraph 27 states that Christopher Fromme contacted Mr. Young by email stating that Mr. Young, as an attorney, had lied in the Affirmation in Opposition. Defendant referenced Exhibit D as evidence. b. Paragraph 28 states that Mr. Fromme intended to file suit against Mr. Young and did in fact do so on those basis. 33. To address paragraph 27 of Defendant’s statement of facts, this is not only not true, but the duly filed referenced exhibit shows nothing of the sort. It was not Mr. Fromme that contacted Mr. Young, it was Yevgeny Levin. The email contained two things: (1) a line that stated “Even though you deserve no courtesy, a courtesy copy is nevertheless attached”, and (2) an attached courtesy copy of the initiating complaint of this current suit. Nothing that was stated in Defendant’s statement of facts paragraph 27 is in fact true. No statements of accused untruthfulness are presented in such an exhibit. 34. To address paragraph 28 of Defendant’s statement of facts, it is not Mr. Fromme that filed suit against Richard W. Young. It was Yevgany Levin by and through representation. Nothing that was stated in Defendant’s statement of facts paragraph 28 is true. 7 of 12 FILED: KINGS COUNTY CLERK 01/17/2024 09:21 PM INDEX NO. 521498/2023 NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 01/17/2024 35. These are just a few examples of where neither Richard W. Young, nor his counsel, show single regard for the factual importance of their statements under oath to any court of any county. 36. As such, any and all of Richard W. Young’s statements in his affirmation herein mentioned and at issue are prima facie evidence of defamation per se. Such statements were false and defamatory concerning Plaintiff, in an unprivileged public communication (discussed below), with the knowledge or complete disregard thereof that such statements were in fact false or had doubts as to their truth. 37. As such, Plaintiff’s claim of defamation is in fact rooted in substantial fact and law and judgment must be granted in favor of Plaintiff to deny Defendant’s motion for summary judgment to dismiss Plaintiff’s complaint. AS AND FOR A SECOND OPPOSITION DEFENDANT ASSERTED SUCH STATEMENTS WITH MALICE THEREBY DISSOLVING PRIVILEGE 38. Judgment must be granted in favor of Plaintiff and deny Defendant’s order to show cause and motion for summary judgment as such statements at issue are not extended the luxury of any such absolute or qualified privilege because Defendant made such statements with malicious intent and with knowledge of their falsity. 39. Although the Defendant has evidently perjured himself in previous pleadings, Defendant is not mistaken when mentioning that in certain arenas a qualified privilege does in fact exist that may shield statements from being acted upon. 40. The court in Liberman v. Geldstein agreed and stated that that courts have long recognized such an immunity and that when a compelling public policy requires that the speaker be immune from suit, the law affords an absolute privilege. See Liberman v. Gelstein, 80 N.Y.2d 429, 437 (N.Y. 1992) 8 of 12 FILED: KINGS COUNTY CLERK 01/17/2024 09:21 PM INDEX NO. 521498/2023 NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 01/17/2024 41. Although being sympathetic to the speaker in such circumstances, the court understood that such privileges only go so far. The court stated: “The shield provided by a qualified privilege may be dissolved if plaintiff can demonstrate that defendant spoke with "malice" (see, Park Knoll Assocs. v Schmidt, 59 N.Y.2d, at 211, supra). Under common law, malice meant spite or ill will (see, Stillman v Ford, 22 N.Y.2d, at 53, supra; Shapiro v Health Ins. Plan, 7 N.Y.2d, at 61, supra). In New York Times Co. v Sullivan ( 376 U.S. 254), however, the Supreme Court established an "actual malice" standard for certain cases governed by the First Amendment: "knowledge that [the statement] was false or * * * reckless disregard of whether it was false or not" ( 376 US, at 279-280). Consequently, the term "malice" has become somewhat confused (see, Mahoney v Adirondack Publ. Co., 71 N.Y.2d 31, 36, n 1; see also, Greenbelt Publ. Assn. v Bresler, 398 U.S. 6, 10 [trial court erred in First Amendment case by charging jury under common-law malice standard]). Indeed, as the Supreme Court itself recently acknowledged (Masson v New Yorker Mag., 501 US ___, ___, 111 S Ct 2419, 2429-2430): "Actual malice under the New York Times standard should not be confused with the concept of malice as an evil intent or a motive arising from spite or ill will * * * We have used the term actual malice as a shorthand to describe the First Amendment protections for speech injurious to reputation and we continue to do so here. But the term can confuse as well as enlighten. In this respect, the phrase may be an unfortunate one." Nevertheless, malice has now assumed a dual meaning, and we have recognized that the constitutional as well as the common-law standard will suffice to defeat a conditional privilege (see, Loughry v Lincoln First Bank, 67 N.Y.2d, at 376, supra; O'Rorke v Carpenter, 55 N.Y.2d 798, 799; Stillman v Ford, 22 N.Y.2d, at 53, supra; see also, Restatement §§ 600, 603, comment a). Under the Times malice standard, the plaintiff must demonstrate that the "statements [were] made with [a] high degree of awareness of their probable falsity" (Garrison v Louisiana, 379 U.S. 64, 74). In other words, there "must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of [the] publication" (St. Amant v Thompson, 390 U.S. 727, 731; see also, Restatement § 600, comment b). Emphasis added. See Liberman v. Gelstein, 80 N.Y.2d 429, 437-38 (N.Y. 1992) 9 of 12 FILED: KINGS COUNTY CLERK 01/17/2024 09:21 PM INDEX NO. 521498/2023 NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 01/17/2024 42. Defendant knew such statements were false. 43. No such affidavit on behalf of Yevgeny Levin exists. Not a paper draft, electronic copy, video recording, audio recording, social media message, tweet, or any such codified record thereof. 44. Defendant simply stated a fallacy and attempted to pass it off as the truth. 45. The undoubted privilege of statements being immune from suit is understandable and acknowledged but the goal posts of the scope of such protection is not absolute. 46. Having such a broad scope of this immunity would allow any and all parties to litigation to merely assert anything and everything they may think is true, untrue, or completely disregard the possible truth therein and claim the protections of the privileged immunity veil. This is not something that public policy, the legislation, nor the courts intended on upholding. 47. Such statements were asserted as fact with full malicious intent to harm, discredit, and assert false professional misconduct as Defendant knew and understood their factual assertions were false. 48. Such statements cannot be seen to have any other effect to the public eye other than to draw animosity and distaste towards Plaintiff and his firm. 49. Due to Defendant’s knowledge of their assertions falsity, judgment must be granted in favor of Plaintiff to deny Defendant’s order to show cause and motion for summary judgment as such statements at issue were not extended the luxury of any such absolute or qualified privilege because Defendant made such statements with malicious intent and with the knowledge of their falsity. AS AND FOR A THIRD OPPOSITION PLAINTIFF’S CLAIMS PASS LEGAL MUSTER AND SURVIVE THE THRESHOLD OF A MOTION FOR SUMMARY JUDGMENT UNDER SLAPP/ANTI-SLAPP 10 of 12 FILED: KINGS COUNTY CLERK 01/17/2024 09:21 PM INDEX NO. 521498/2023 NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 01/17/2024 50. Plaintiff’s claims herein pass legal muster and must survive Defendant’s motion to dismiss herein regarding SLAPP/ANTI-SLAPP laws and rules insomuch that Plaintiff has met the burden of supporting their position in substantial fact and law as well as presenting this court with several triable issues of material fact. 51. Viewing such facts in light most favorable to the non-moving party, there seems to be a triable issue of material fact. 52. SLAPP/ANTI-SLAPP laws alike are passed and upheld to protect parties from authorized or privileged claims and statements throughout the course of public petition and litigation. 53. As previously discussed, it can clearly be seen here that since such defamatory per se statements were asserted with a malicious intent, no such privilege can be afforded and therefore do not fall within the scope of SLAPP/ANTI-SLAPP law definitions and protections of preventing parties from acting upon known protected speech. 54. As such, the remaining facts to be determined here are (1) whether such referenced documents in fact exist, (2) whether the facts stated therein are true, and (3) whether or not, if false, did Defendant, or his counsel know of their falsity and purport to pass it off to any such court as the truth. 55. Due to the non-application of any such SLAPP/ANTI-SLAPP laws for lack of privilege, Federal or State alike, Plaintiff’s claims must be seen to pass SLAPP/ANTI-SLAPP muster to continue this pertinent case in its ordinary due course. WHEREFORE, Plaintiff respectfully pleads this Honorable Court for the following relief: (1) To deny Defendant’s Order to Show Cause and Motion for Summary judgment in its entirety; 11 of 12 FILED: KINGS COUNTY CLERK 01/17/2024 09:21 PM INDEX NO. 521498/2023 NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 01/17/2024 (2) Any further relief as this court may deem necessary and proper. Date: 1/17/2024 _________________________________ Alan Vaitzman, Esq., Levin Law Group PLLC 2102 Avenue Z, #205 Breooklyn, NY 11235 12 of 12