Preview
FILED: NASSAU COUNTY CLERK 12/17/2019 01:23 PM INDEX NO. 616386/2019
NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 12/17/2019
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU
--------- --- ¬--- X
ROSEN LAW LLC and GARY ROSEN, Index No.: 616386/2019
Plaintiffs, NOTICE OF MOTION
-against-
SHAHRAM MOBASSER, MEHRAN
MALEKAN and EBRAHIM SHOKRIAN,
Defendants
----------- ¬-------------------------------------X
PLEASE TAKE NOTICE that, upon the annexed affirmation of Jonathan M. Goidel,
Esq., dated December 17, 2019, the Affidavit of Mehran Malekan dated December 17, 2019, and
upon all proceedings heretofore had herein defendant, Mehran Malekan will move this Court, held
in and for the County of Nassau, at the Courthouse located at 100 Supreme Court Drive, Mineola,
New York, at an IAS Part to be assigned, on December 27, 2019 at 9:30 in the forenoon of that
day, or as soon thereafter as counsel may be heard for an order (i) dismissing the complaint herein
pursuant to CPLR §3211(a)(7); and (ii) for such other and further relief as this Court deems just
and proper.
PLEASE TAKE NOTICE that, pursuant to CPLR 2214, answering papers, if any, to this
motion must be served on the undersigned by no later than seven (7) days before the return date
hereof.
Dated: New York, New York
December 17, 2019 Yours, e
EL S EL, LLP
J'
y: athan IDdel, Esq.
At rneys for Defendant
4582 3rd
6 West Street, FlOOr
New York, New York 10036
(212) 840-3737
J_Goidel@GoidelandSiegel.com
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU
----------------- ----- ¬------------------------X
ROSEN LAW LLC and GARY ROSEN, Index No.: 616386/2019
AFFIRMATION IN SUPPORT
Plaintiffs,
-against-
SHAHRAM MOBASSER, MEHRAN
MALEKAN and EBRAHIM SHOKRIAN,
Defendants
___________________ X
JONATHAN M. GOIDEL, ESQ., an attorney duly licensed and admitted to practice law
in the courts of the State of New York affirms the following:
1. I am a member of GOIDEL & SIEGEL, LLP, counsel for defendant MEHRAN
MALEKAN ("Malekan") in this action.
2. I submit this affirmation in support of Malekan's pre-answer motion to dismiss the
complaint herein pursuant to CPLR §3211(a)(7).
L PRELIMINARY STATEMENT
3. This action is the one of two currently pending in this court among the parties.
4. The first was originally commenced in Kings County by Mehran Malekan and Shahram
Mobasser (and an entity they own, 2426 Ocean avenue, LLC) against the plaintiffs for
legal malpractice, arising out of errors made by the plaintiffs herein, in drafting a
condominium offering plan prepared by defêñdants for a project sponsored by the LLC
located at 2424 Ocean Avenue, Brooklyn, New York.
5. Plaintiffs herein answered the complaint in the malpractice action and, thereafter, the
parties stipulated to having that action transferred to this court.
6. In obvious retaliation for the commencement of the malpractice action, plaintiffs herein
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commeñced this action by filing a blunderbuss complaint, claiming that the allegations in
the malpractice complaint expose the defendants herein to liability for a host of specious
claims including: Fraud, Civil Conspiracy, Prima Facia Tort, Aiding and Abetting Fraud,
Defamation and Injurious Falsehood.
7. As discussed below, the complaint herein fails to state any cause of action and must be
dismissed as a matter of law. Not only does the complaint herein lack the specificity
required to sustain the foregoing causes of action, but, even if pleaded with adequate
specificity, the allegations in the malpractice complaint cannot and do not give rise to
any right of action. Accordingly, this action must be dismissed in its entirety.
II . RELEVANT FACTUAL BACKGROUND
8. Mehran Malekan ("Malekan") Shahram Mobasser and Ebrahim Shokrian were principals
of 2426 Ocean Avenue, LLC (the "LLC"), which was formed for the purposes of
constructing a residential and commercial building (the Building") at 2424 Ocean
Avenue, Brooklyn, New York, filing a condominium offering plan (the "Plan") with the
New York State Attorney General and, upon approval of the Plan by the Attomey
General, offering the individual condominium units in the Building for sale.
9. The Plaintiffs in this action are the law firm and an individual member of that firm who
were retained to draft and file the Plan with the Attorney General. A copy of the Plan is
annexed hereto as Exhibit A. Malekan's Affidavit in Support of this motion is annexed
hereto as Exhibit B.
10. After the Plan was approved by the Attorney General and most of the units in the
Building sold, one of the purchasers, an attorney, identified an error in the Plan that
overstated the remaining term of a so-called 421(a) tax abatement granted to the building
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by the New York City Department of Finance.
11. That purchaser brought the error to the Attorney General's attention and the Attorney
General, in turn, commenced an investigation, and determined the defendants herein are
required to reimburse all purchasers for the additional taxes they will be required to pay
on account of the alleged overstatement of the length of the tax abatement.
12. Defendants herein commenced a legal malpractice action against the plaintiffs herein and
against a tax consultant, Yehuda Moseson and Moseson & Associates Corp., who
assisted in the preparation of the tax representations contained in the Plan. That
malpractice action was commenced in Supreme Court, Kings County, under Index No.:
515712/2019 and is in the process of being transferred to Nassau County by the Kings
County Clerk under the new Index No.: 617430/2019. A copy of the complaint (the
C.1
"Malpractice Complaint") in the malpractice action is annexed hereto as Exhibit
13. Plaintiffs herein answered the Malpractice Complaint and, shortly thereafter,
commenced this plenary action, which seeks damages arising out of the allegations
contained in the Malpractice Complaint.
I. THE COMPLAINT HEREIN FAILS TO STATE A CAUSE OF ACTION
14. The complaint in this action, a copy of which is annexed hereto as Exhibit E), purports
to assert 6 separate causes of action, to wit: (i) Fraud, (ii) Injurious Falsehood, (iii)
Prima Facie Tort, (iv) Civil Conspiracy, and (v) Aiding and Abetting Fraud and (vi)
Defamation, all, exclusively based on allegations contained in the Malpractice
Complaint. As demonstrated below, none of the foregoing 6 causes of action are viable
1
The Malpractice Action is in the process of being transferred by the Kings County Clerk to Supreme Court, Nassau
County and was recently assigned Nassau County Index No.: 617430/2019. A copy of the Kings County Clerk's
certification of the file transfer is annexed hereto as Exhibit D.
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claims and all must be dismissed on this motion.
A. THE FRAUD CAUSE OF ACTION
15. In Jo Ann Homes at Bellmore, Inc. v. Dworetz, 25 N.Y.2d 112, 250 N.E.2d 214, 302
N.Y.S.2d 799, 1969 N.Y. LEXIS 1102, (1969), the Court explained that "[f]raud is
generally defined by reciting the five elements essential to sustain that cause of action.
There must be [1] a representation of fact, [2] which is either untrue and known to be
untrue or recklessly made, and [3] which is offered to deceive the other party and [4] to
induce them to act upon it, [5] causing injury. (See 24 N. Y. Jur., Fraud and Deceit, §
14.).
16. Here, plaintiff has failed to plead any of the aforementioned five elements of fraud.
Indeed, even if the complaint herein did allege the elements of fraud, the fraud claim
nevertheless would be subject to dismissal because the statements complained of are all
made in the course of litigation, are contained in the Malpractice Complaint and,
therefore, entitled to absolute privilege. In Seltzer v. Fields, 20 A.D.2d 60, 244
N.Y.S.2d 792, 1963 N.Y. App. Div. LEXIS 2723, also an action for legal malpractice,
the Court explained the scope of the absolute privilege afforded allegations in a
complaint as follows:
It is well established that a statement made in the course of legal
proceedings is absolutely privileged if it is at all pertinent to the
litigation. (Youmans v Smith, 153 NY 214, 219, 47 NE 265, 266
(1897).) In this seminal case, the Court made clear that the rule rests on
the policy that counsel should be able to "speak with that free and open
demands"
mind which the administration of justice without the constant
fear of libel suits. (Id. at 223.) ... The same common-law privilege that
applies to the complaint also applies to the statements made in the course
of the arbitration. (See Andrews v Gardiner, 224 NY 440, 446, 121 NE
341, 343[1918][absolute privilege applies "before tribunals having
attributes similar to those of courts"].) Thus, the question, here too, is
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whether the statements held by the motion court to be defamatory were
possibly pertinent to the arbitration.
17. Here, as in Seltzer, the allegations in the Malpractice Complaint are all pertinent to the
malpractice action and, therefore, entitled to absolute privilege.
18. Moreover, nowhere in the complaint herein do the plaintiffs allege (i) that any statement
in the Malpractice Complaint was made to induce plaintiff to take any action, (ii) that the
plaintiffs herein did, in fact, take action in reliance upon statements in the Malpractice
Complaint, or (iii) that they suffered specific damages as a result of relying upon
statements made in the Malpractice Complaint.
19. Accordingly, having failed to plead any of the elements of a fraud, and because the
statements upon which the fraud claim is based are entitled to absolute privilege, the
fraud cause of action and the aiding and abetting fraud cause of action must be
dismissed2.
B. INJURIOUS FALSEHOOD CAUSE OF ACTION
20. As with the Fraud cause of action, the statements at the center of the Injurious Falsehood
cause of action are contained in the Malpractice Complaint and are privileged.
21. Moreover, plaintiff herein failed to adequately plead a cause of action for injurious
falsehood, not merely because the statements complained of were contained exclusively
in a complaint filed in court, but also because plaintiff herein failed to allege the
essential elements of the cause of action. As the Court noted in Gilliam v. Richard M.
Greenspan. P.C., 17 A.D.3d 634, 793 N.Y.S.2d 526, 2005 N.Y. App. Div. LEXIS 4399
(2005), "[t]he plaintiff must show that the defendants made false statements,
2 A further discussion of the aiding and abetting fraud cause of action is set forth infra.
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maliciously and with the intent to harm her, or recklessly and without regard to their
consequences, and that a reasonably prudent person would have or should have
anticipated that damage to her would naturally flow therefrom (see L.W.C. Agency v St.
Paul Fire & Mar. Ins. Co.. 125 AD2d 371, 509 NYS2d 97 [1986]). Moreover the
olaintiff did not allege special damages (see Lesesne v Lesesne. 292 AD2d 507, 740
NYS2d 352 [2002]; DiSanto v Forsyth. 258 AD2d 497, 684 NYS2d 628 [1999])".
Emphasis added.
22. Here, plaintiff merely alleged in the most general terms that the privileged statements
contained in the Malpractice Complaint were made maliciously, but failed to allege any
special damages with specificity. Accordingly, the claim for injurious falsehood must be
dismissed.
C. PRIMA FACIE TORT CAUSE OF ACTION
23. In Diorio v Ossining Union Free School Dist., 96 A.D.3d 710, 946 N.Y.S.2d 195, 2012
N.Y. App. Div. LEXIS 4290, 2012 NY Slip Op 4314, 2012 WL 2017508 (2d, Dept.,
2012), the court identified the requisite elements for a cause of action sounding
in prima facie tort, to wit: (1) intentional infliction of harm, (2) resulting in special
damages, (3) without excuse or justification, (4) by an act or series of acts which are
otherwise legal (see Del Vecchio v Nelson, 300 AD2d 277, 278, 751 NYS2d 290
[2002]; see also Curiano v Suozzi, 63 NY2d 113, 469 NE2d 1324, 480 NYS2d 466
[1984]; Drago v Buonagurio, 46 NY2d 778, 386 NE2d 821, 413 NYS2d 910 [1978]).
An element of a prima facie tort cause of action is that the complaining party suffered
specific and measurable loss, which requires an allegation of special damages (see Del
Vecchio v Nelson, 300 AD2d at 278). Additionally, central to a cause of action
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alleging prima facie tort is that the plaintiffs intent was motivated solely by malice or
malevolence"
"disinterested (Simaee v Levi, 22 AD3d 559, 563, 802 NYS2d 493
[2005] [internal quotation marks omitted]; see Lancaster v Town of E. Hampton, 54
AD3d 906, 908, 864 NYS2d 537 [2008]).
24. The plaintiff herein has, again, failed to adequately plead a cause of action for prima
facie tort. Indeed, as with the other causes of action in the complaint herein, all the
statements complained of reside in the Malpractice Complaint and are entitled to
absolute privilege.
25. Moreover, as with the cause of action for injurious falsehood, to make out a claim of
prima facie tort specific, special damages are required to have been pled, which plaintiff
herein failed to do.
26. Additionally, to sustain a cause of action for prima facie tort, the plaintiff must plead
that the underlying statements were made only to cause harm, and not for any other
purpose. Here, however, the complaint in the malpractice action plainly shows the
defendants herein made the privileged statements for the purpose of prosecuting a
malpractice action, not to cause harm. Therefore, the cause of action for prima facie tort
must be dismissed.
D. _CAUSE OF ACTION FOR CIVIL CONSPIRACY
27. Simply, New York does not recognize civil conspiracy to commit a tort as an
independent cause of action (see Hebrew Inst. for Deaf & Excentional Children v
Kahana, 57 AD3d 734, 735, 870 NYS2d 85 [2008]; Salvatore v Kumar, 45 AD3d 560,
563, 845 NYS2d 384 [2007]). Instead, the claim stands or falls with the underlying tort
(see Salvatore, 45 AD3d at 563-564; Sokol v Addison, 293 AD2d 600, 601, 742 NYS2d
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311 [2002]). Here, the civil conspiracy claim is clearly derivative of the other tort claims,
which must be dismissed for the reasons set forth elsewhere herein. Since its viability in
this case is derivative of the underlying torts, and those claims should be dismissed,
the civil conspiracy cause of action insofar as asserted should be dismissed.
E. CAUSE OF ACTION FOR AIDING AND ABETTING FRAUD
28. Where, as here, the cause of action for fraud must be dismissed, likewise, the cause of
action for aiding and abetting fraud must be dismissed. See, Small v Lorrillard Tobacco
Co.. 94 NY2d 43, 57. 720 NE2d 892. 698 NYS2d 615 [1999]; High Tides. LLC v
DeMichele, 88 AD3d at 960-961) (Aiding and abetting fraud cause of action cannot
stand when underlying fraud claim is dismissed).
29. As discussed above, the fraud cause of action must be dismissed because (i) the
statements underlying the fraud cause of action are all entitled to absolute privilege
because they are exclusively contained in the Malpractice Complaint, and (ii) plaintiffs
failed to plead the essential elements of a fraud cause of action, to wit: that the
underlying statements (made in the Malpractice Complaint) were (i) made to the
plaintiffs, (ii) were intended to induce the plaintiff to take any action in reliance upon
those statements, (iii) that they did, in fact, take action in reliance upon those statements,
and (iv) as a result of that reliance suffered damages.
30. Indeed, the complaint herein merely alleges that the statements in the Malpractice
Complaint are false and were known to be false. However, the complaint herein does
not identify which statements in the complaint are false, were relied on by plaintiffs,
induced the plaintiff herein to act in reliance thereon, or the damages sustained as a
result of that reliance.
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31. Accordingly, both the fraud and aiding and abetting fraud causes of action must be
dismissed.
IV. DEFAMATION CAUSE OF ACTION
32. Just as the other five causes of action must fail, so too must the defamation cause of
action.
33. As noted by the court in Weinstock v Sanders, 144 A.D.3d 1019, 42 N.Y.S.3d 205, 2016
(2nd
N.Y. App. Div. LEXIS 7781, 2016 NY Slip Op 07947 Dept., 2016), "generally,
statements made at all stages of a judicial proceeding in communications among the
parties, witnesses, counsel, and the court are accorded an absol
Preview
FILED: NASSAU COUNTY CLERK 12/17/2019 01:23 PM INDEX NO. 616386/2019 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 12/17/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU --------- --- ¬--- X ROSEN LAW LLC and GARY ROSEN, Index No.: 616386/2019 Plaintiffs, NOTICE OF MOTION -against- SHAHRAM MOBASSER, MEHRAN MALEKAN and EBRAHIM SHOKRIAN, Defendants ----------- ¬-------------------------------------X PLEASE TAKE NOTICE that, upon the annexed affirmation of Jonathan M. Goidel, Esq., dated December 17, 2019, the Affidavit of Mehran Malekan dated December 17, 2019, and upon all proceedings heretofore had herein defendant, Mehran Malekan will move this Court, held in and for the County of Nassau, at the Courthouse located at 100 Supreme Court Drive, Mineola, New York, at an IAS Part to be assigned, on December 27, 2019 at 9:30 in the forenoon of that day, or as soon thereafter as counsel may be heard for an order (i) dismissing the complaint herein pursuant to CPLR §3211(a)(7); and (ii) for such other and further relief as this Court deems just and proper. PLEASE TAKE NOTICE that, pursuant to CPLR 2214, answering papers, if any, to this motion must be served on the undersigned by no later than seven (7) days before the return date hereof. Dated: New York, New York December 17, 2019 Yours, e EL S EL, LLP J' y: athan IDdel, Esq. At rneys for Defendant 4582 3rd 6 West Street, FlOOr New York, New York 10036 (212) 840-3737 J_Goidel@GoidelandSiegel.com 1 of 11 FILED: NASSAU COUNTY CLERK 12/17/2019 01:23 PM INDEX NO. 616386/2019 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 12/17/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU ----------------- ----- ¬------------------------X ROSEN LAW LLC and GARY ROSEN, Index No.: 616386/2019 AFFIRMATION IN SUPPORT Plaintiffs, -against- SHAHRAM MOBASSER, MEHRAN MALEKAN and EBRAHIM SHOKRIAN, Defendants ___________________ X JONATHAN M. GOIDEL, ESQ., an attorney duly licensed and admitted to practice law in the courts of the State of New York affirms the following: 1. I am a member of GOIDEL & SIEGEL, LLP, counsel for defendant MEHRAN MALEKAN ("Malekan") in this action. 2. I submit this affirmation in support of Malekan's pre-answer motion to dismiss the complaint herein pursuant to CPLR §3211(a)(7). L PRELIMINARY STATEMENT 3. This action is the one of two currently pending in this court among the parties. 4. The first was originally commenced in Kings County by Mehran Malekan and Shahram Mobasser (and an entity they own, 2426 Ocean avenue, LLC) against the plaintiffs for legal malpractice, arising out of errors made by the plaintiffs herein, in drafting a condominium offering plan prepared by defêñdants for a project sponsored by the LLC located at 2424 Ocean Avenue, Brooklyn, New York. 5. Plaintiffs herein answered the complaint in the malpractice action and, thereafter, the parties stipulated to having that action transferred to this court. 6. In obvious retaliation for the commencement of the malpractice action, plaintiffs herein 2 of 11 FILED: NASSAU COUNTY CLERK 12/17/2019 01:23 PM INDEX NO. 616386/2019 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 12/17/2019 commeñced this action by filing a blunderbuss complaint, claiming that the allegations in the malpractice complaint expose the defendants herein to liability for a host of specious claims including: Fraud, Civil Conspiracy, Prima Facia Tort, Aiding and Abetting Fraud, Defamation and Injurious Falsehood. 7. As discussed below, the complaint herein fails to state any cause of action and must be dismissed as a matter of law. Not only does the complaint herein lack the specificity required to sustain the foregoing causes of action, but, even if pleaded with adequate specificity, the allegations in the malpractice complaint cannot and do not give rise to any right of action. Accordingly, this action must be dismissed in its entirety. II . RELEVANT FACTUAL BACKGROUND 8. Mehran Malekan ("Malekan") Shahram Mobasser and Ebrahim Shokrian were principals of 2426 Ocean Avenue, LLC (the "LLC"), which was formed for the purposes of constructing a residential and commercial building (the Building") at 2424 Ocean Avenue, Brooklyn, New York, filing a condominium offering plan (the "Plan") with the New York State Attorney General and, upon approval of the Plan by the Attomey General, offering the individual condominium units in the Building for sale. 9. The Plaintiffs in this action are the law firm and an individual member of that firm who were retained to draft and file the Plan with the Attorney General. A copy of the Plan is annexed hereto as Exhibit A. Malekan's Affidavit in Support of this motion is annexed hereto as Exhibit B. 10. After the Plan was approved by the Attorney General and most of the units in the Building sold, one of the purchasers, an attorney, identified an error in the Plan that overstated the remaining term of a so-called 421(a) tax abatement granted to the building 3 of 11 FILED: NASSAU COUNTY CLERK 12/17/2019 01:23 PM INDEX NO. 616386/2019 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 12/17/2019 by the New York City Department of Finance. 11. That purchaser brought the error to the Attorney General's attention and the Attorney General, in turn, commenced an investigation, and determined the defendants herein are required to reimburse all purchasers for the additional taxes they will be required to pay on account of the alleged overstatement of the length of the tax abatement. 12. Defendants herein commenced a legal malpractice action against the plaintiffs herein and against a tax consultant, Yehuda Moseson and Moseson & Associates Corp., who assisted in the preparation of the tax representations contained in the Plan. That malpractice action was commenced in Supreme Court, Kings County, under Index No.: 515712/2019 and is in the process of being transferred to Nassau County by the Kings County Clerk under the new Index No.: 617430/2019. A copy of the complaint (the C.1 "Malpractice Complaint") in the malpractice action is annexed hereto as Exhibit 13. Plaintiffs herein answered the Malpractice Complaint and, shortly thereafter, commenced this plenary action, which seeks damages arising out of the allegations contained in the Malpractice Complaint. I. THE COMPLAINT HEREIN FAILS TO STATE A CAUSE OF ACTION 14. The complaint in this action, a copy of which is annexed hereto as Exhibit E), purports to assert 6 separate causes of action, to wit: (i) Fraud, (ii) Injurious Falsehood, (iii) Prima Facie Tort, (iv) Civil Conspiracy, and (v) Aiding and Abetting Fraud and (vi) Defamation, all, exclusively based on allegations contained in the Malpractice Complaint. As demonstrated below, none of the foregoing 6 causes of action are viable 1 The Malpractice Action is in the process of being transferred by the Kings County Clerk to Supreme Court, Nassau County and was recently assigned Nassau County Index No.: 617430/2019. A copy of the Kings County Clerk's certification of the file transfer is annexed hereto as Exhibit D. 4 of 11 FILED: NASSAU COUNTY CLERK 12/17/2019 01:23 PM INDEX NO. 616386/2019 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 12/17/2019 claims and all must be dismissed on this motion. A. THE FRAUD CAUSE OF ACTION 15. In Jo Ann Homes at Bellmore, Inc. v. Dworetz, 25 N.Y.2d 112, 250 N.E.2d 214, 302 N.Y.S.2d 799, 1969 N.Y. LEXIS 1102, (1969), the Court explained that "[f]raud is generally defined by reciting the five elements essential to sustain that cause of action. There must be [1] a representation of fact, [2] which is either untrue and known to be untrue or recklessly made, and [3] which is offered to deceive the other party and [4] to induce them to act upon it, [5] causing injury. (See 24 N. Y. Jur., Fraud and Deceit, § 14.). 16. Here, plaintiff has failed to plead any of the aforementioned five elements of fraud. Indeed, even if the complaint herein did allege the elements of fraud, the fraud claim nevertheless would be subject to dismissal because the statements complained of are all made in the course of litigation, are contained in the Malpractice Complaint and, therefore, entitled to absolute privilege. In Seltzer v. Fields, 20 A.D.2d 60, 244 N.Y.S.2d 792, 1963 N.Y. App. Div. LEXIS 2723, also an action for legal malpractice, the Court explained the scope of the absolute privilege afforded allegations in a complaint as follows: It is well established that a statement made in the course of legal proceedings is absolutely privileged if it is at all pertinent to the litigation. (Youmans v Smith, 153 NY 214, 219, 47 NE 265, 266 (1897).) In this seminal case, the Court made clear that the rule rests on the policy that counsel should be able to "speak with that free and open demands" mind which the administration of justice without the constant fear of libel suits. (Id. at 223.) ... The same common-law privilege that applies to the complaint also applies to the statements made in the course of the arbitration. (See Andrews v Gardiner, 224 NY 440, 446, 121 NE 341, 343[1918][absolute privilege applies "before tribunals having attributes similar to those of courts"].) Thus, the question, here too, is 5 of 11 FILED: NASSAU COUNTY CLERK 12/17/2019 01:23 PM INDEX NO. 616386/2019 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 12/17/2019 whether the statements held by the motion court to be defamatory were possibly pertinent to the arbitration. 17. Here, as in Seltzer, the allegations in the Malpractice Complaint are all pertinent to the malpractice action and, therefore, entitled to absolute privilege. 18. Moreover, nowhere in the complaint herein do the plaintiffs allege (i) that any statement in the Malpractice Complaint was made to induce plaintiff to take any action, (ii) that the plaintiffs herein did, in fact, take action in reliance upon statements in the Malpractice Complaint, or (iii) that they suffered specific damages as a result of relying upon statements made in the Malpractice Complaint. 19. Accordingly, having failed to plead any of the elements of a fraud, and because the statements upon which the fraud claim is based are entitled to absolute privilege, the fraud cause of action and the aiding and abetting fraud cause of action must be dismissed2. B. INJURIOUS FALSEHOOD CAUSE OF ACTION 20. As with the Fraud cause of action, the statements at the center of the Injurious Falsehood cause of action are contained in the Malpractice Complaint and are privileged. 21. Moreover, plaintiff herein failed to adequately plead a cause of action for injurious falsehood, not merely because the statements complained of were contained exclusively in a complaint filed in court, but also because plaintiff herein failed to allege the essential elements of the cause of action. As the Court noted in Gilliam v. Richard M. Greenspan. P.C., 17 A.D.3d 634, 793 N.Y.S.2d 526, 2005 N.Y. App. Div. LEXIS 4399 (2005), "[t]he plaintiff must show that the defendants made false statements, 2 A further discussion of the aiding and abetting fraud cause of action is set forth infra. 6 of 11 FILED: NASSAU COUNTY CLERK 12/17/2019 01:23 PM INDEX NO. 616386/2019 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 12/17/2019 maliciously and with the intent to harm her, or recklessly and without regard to their consequences, and that a reasonably prudent person would have or should have anticipated that damage to her would naturally flow therefrom (see L.W.C. Agency v St. Paul Fire & Mar. Ins. Co.. 125 AD2d 371, 509 NYS2d 97 [1986]). Moreover the olaintiff did not allege special damages (see Lesesne v Lesesne. 292 AD2d 507, 740 NYS2d 352 [2002]; DiSanto v Forsyth. 258 AD2d 497, 684 NYS2d 628 [1999])". Emphasis added. 22. Here, plaintiff merely alleged in the most general terms that the privileged statements contained in the Malpractice Complaint were made maliciously, but failed to allege any special damages with specificity. Accordingly, the claim for injurious falsehood must be dismissed. C. PRIMA FACIE TORT CAUSE OF ACTION 23. In Diorio v Ossining Union Free School Dist., 96 A.D.3d 710, 946 N.Y.S.2d 195, 2012 N.Y. App. Div. LEXIS 4290, 2012 NY Slip Op 4314, 2012 WL 2017508 (2d, Dept., 2012), the court identified the requisite elements for a cause of action sounding in prima facie tort, to wit: (1) intentional infliction of harm, (2) resulting in special damages, (3) without excuse or justification, (4) by an act or series of acts which are otherwise legal (see Del Vecchio v Nelson, 300 AD2d 277, 278, 751 NYS2d 290 [2002]; see also Curiano v Suozzi, 63 NY2d 113, 469 NE2d 1324, 480 NYS2d 466 [1984]; Drago v Buonagurio, 46 NY2d 778, 386 NE2d 821, 413 NYS2d 910 [1978]). An element of a prima facie tort cause of action is that the complaining party suffered specific and measurable loss, which requires an allegation of special damages (see Del Vecchio v Nelson, 300 AD2d at 278). Additionally, central to a cause of action 7 of 11 FILED: NASSAU COUNTY CLERK 12/17/2019 01:23 PM INDEX NO. 616386/2019 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 12/17/2019 alleging prima facie tort is that the plaintiffs intent was motivated solely by malice or malevolence" "disinterested (Simaee v Levi, 22 AD3d 559, 563, 802 NYS2d 493 [2005] [internal quotation marks omitted]; see Lancaster v Town of E. Hampton, 54 AD3d 906, 908, 864 NYS2d 537 [2008]). 24. The plaintiff herein has, again, failed to adequately plead a cause of action for prima facie tort. Indeed, as with the other causes of action in the complaint herein, all the statements complained of reside in the Malpractice Complaint and are entitled to absolute privilege. 25. Moreover, as with the cause of action for injurious falsehood, to make out a claim of prima facie tort specific, special damages are required to have been pled, which plaintiff herein failed to do. 26. Additionally, to sustain a cause of action for prima facie tort, the plaintiff must plead that the underlying statements were made only to cause harm, and not for any other purpose. Here, however, the complaint in the malpractice action plainly shows the defendants herein made the privileged statements for the purpose of prosecuting a malpractice action, not to cause harm. Therefore, the cause of action for prima facie tort must be dismissed. D. _CAUSE OF ACTION FOR CIVIL CONSPIRACY 27. Simply, New York does not recognize civil conspiracy to commit a tort as an independent cause of action (see Hebrew Inst. for Deaf & Excentional Children v Kahana, 57 AD3d 734, 735, 870 NYS2d 85 [2008]; Salvatore v Kumar, 45 AD3d 560, 563, 845 NYS2d 384 [2007]). Instead, the claim stands or falls with the underlying tort (see Salvatore, 45 AD3d at 563-564; Sokol v Addison, 293 AD2d 600, 601, 742 NYS2d 8 of 11 FILED: NASSAU COUNTY CLERK 12/17/2019 01:23 PM INDEX NO. 616386/2019 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 12/17/2019 311 [2002]). Here, the civil conspiracy claim is clearly derivative of the other tort claims, which must be dismissed for the reasons set forth elsewhere herein. Since its viability in this case is derivative of the underlying torts, and those claims should be dismissed, the civil conspiracy cause of action insofar as asserted should be dismissed. E. CAUSE OF ACTION FOR AIDING AND ABETTING FRAUD 28. Where, as here, the cause of action for fraud must be dismissed, likewise, the cause of action for aiding and abetting fraud must be dismissed. See, Small v Lorrillard Tobacco Co.. 94 NY2d 43, 57. 720 NE2d 892. 698 NYS2d 615 [1999]; High Tides. LLC v DeMichele, 88 AD3d at 960-961) (Aiding and abetting fraud cause of action cannot stand when underlying fraud claim is dismissed). 29. As discussed above, the fraud cause of action must be dismissed because (i) the statements underlying the fraud cause of action are all entitled to absolute privilege because they are exclusively contained in the Malpractice Complaint, and (ii) plaintiffs failed to plead the essential elements of a fraud cause of action, to wit: that the underlying statements (made in the Malpractice Complaint) were (i) made to the plaintiffs, (ii) were intended to induce the plaintiff to take any action in reliance upon those statements, (iii) that they did, in fact, take action in reliance upon those statements, and (iv) as a result of that reliance suffered damages. 30. Indeed, the complaint herein merely alleges that the statements in the Malpractice Complaint are false and were known to be false. However, the complaint herein does not identify which statements in the complaint are false, were relied on by plaintiffs, induced the plaintiff herein to act in reliance thereon, or the damages sustained as a result of that reliance. 9 of 11 FILED: NASSAU COUNTY CLERK 12/17/2019 01:23 PM INDEX NO. 616386/2019 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 12/17/2019 31. Accordingly, both the fraud and aiding and abetting fraud causes of action must be dismissed. IV. DEFAMATION CAUSE OF ACTION 32. Just as the other five causes of action must fail, so too must the defamation cause of action. 33. As noted by the court in Weinstock v Sanders, 144 A.D.3d 1019, 42 N.Y.S.3d 205, 2016 (2nd N.Y. App. Div. LEXIS 7781, 2016 NY Slip Op 07947 Dept., 2016), "generally, statements made at all stages of a judicial proceeding in communications among the parties, witnesses, counsel, and the court are accorded an absol