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SUPREME COURT OF THE STATE OF NEW YORK INDEX NO. 616386/2019
COUNTY OF NASSAU
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ROSEN LAW LLC and GARY ROSEN
Plaintiffs,
-against- Return Date:
December 27, 2019
SHAHRAM MOBASSER
MEHRAN MALEKAN, and
EBRAHIM SHOKRIAN
Defendants.
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MEMORANDUM OF LAW IN SUPPORT OF
DEFENDANT’S MOTION TO DISMISS
Matin Emouna, Esq.
EMOUNA & MIKHAIL, P.C.
Attorneys for Ebrahim Shokrian
100 Garden City Plaza, Suite 520
Garden City, New York 11530
Tel (516) 877-9111
memouna@emiklaw.com
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TABLE OF CONTENTS
PRELIMINARY STATEMENT .................................................................................................... 1
FACTUAL AND PROCEDURAL BACKGROUND.................................................................... 1
LEGAL ARGUMENT .................................................................................................................... 1
CPLR 3211(a)(7) 3
POINT I
FIRST CAUSE OF ACTION FOR FRAUD MUST BE DISMISSED 4
POINT II
SECOND CAUSE OF ACTION FOR
INJURIOUS FALSEHOOD SHOULD BE DISMISSED 7
POINT III
THIRD CAUSE OF ACTION FOR
PRIMA FACIE TORT SHOULD BE DISMISSED 8
POINT IV
FOURTH CAUSE OF ACTION FOR
CIVIL CONSPIRACY SHOULD BE DISMISSED 9
POINT V
FIFTH CAUSE OF ACTION FOR
AIDING AND ABETTING FRAUD SHOULD BE DISMISSED 9
POINT VI
SIXTH CAUSE OF ACTION FOR
DEFAMATION SHOULD BE DISMISSED 10
POINT VII
THE COMPLAINT FAILS TO STATE A CAUSE OF ACTION BECAUSE THE
STATEMENTS COMPLAINED OF ARE ABSOLUTELY PRIVILEGED AS HAVING BEEN
MADE BY A PARTY IN CONNECTION WITH A JUDICIAL PROCEEDING 15
POINT VIII
THE COMPLAINT FAILS TO STATE A CAUSE OF ACTION BECAUSE
IT FAILS TO COMPLY WITH THE SPECIFIC PLEADING
REQUIREMENTS FOR DEFAMATION CASES 19
CONCLUSION ............................................................................................................................. 20
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PRELIMINARY STATEMENT
Defendant, EBRAHIM SHOKRIAN respectfully submits this memorandum of law in
support of the motion to dismiss. This action is the one of two currently pending in this court
among the parties. The first was originally commenced in Kings County by co-defendants, Mehran
Malekan and Shahram Mobasser (and an entity they now 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 defendants for a project sponsored by the LLC located at
2424 Ocean Avenue, Brooklyn, New York. In that action, Ebrahim Shokrian did not appear.
Plaintiffs herein answered the complaint in the malpractice action and, thereafter, the
respective parties stipulated to having that action transferred to this court. It is upon information
and belief that this case arises from some sort of retaliation for the commencement of the
malpractice action. Plaintiffs appearing pro se as they are attorneys, commenced this action by
filing a meritless 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.
For these reasons, which are more fully detailed below, Ebrahim Shokrian respectfully
requests that this Court grant its motion and dismiss the Complaint as against Ebrahim Shokrian
in its entirety.
FACTUAL AND PROCEDURAL BACKGROUND
On or about December 17, 2019, co-defendants, Mehran Malekan and Shahram Mobasser,
by and through their attorneys, Goidel & Siegel LLP., filed a pre-answer motion to dismiss
returnable on December 27, 2019, pursuant to CPLR §3211(a)(7), together with such other and
further relief as the Court may deem just and proper. For a full recitation of legal arguments, the
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Court’s attention is respectfully directed to the attached Memorandum of Law, dated December
18, 2019, and the Affirmation of Jonathan Goidel, Esq., dated December 17, 2019, (DKT Entry
No. 3). The contents of said Affirmation and attached Exhibits (DKT Entries No. 4 through 8) are
therefore respectfully incorporated herein and made a part hereof. 1
Co-Defendants, Mehran Malekan ("Malekan") Shahrarn Mobasser (“Mobasser”) and
Ebrahim Shokrian (“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 Attorney General,
offering the individual condominium units in the Building for sale.
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
as Exhibit A of Malekan's Affidavit in Support of co-defendants motion to dismiss.
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 the New York City Department of
Finance. 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. Defendants herein commenced a legal
malpractice action against the plaintiffs herein and against a tax consultant, Yehuda Moseson and
1
In the interest of environmental awareness, I have not attached, nor copied the lengthy Exhibits that
were made and attached to co-defendants’ motion to dismiss returnable on the same date.
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Moseson & Associates Corp., who assisted in the preparation of the tax representations contained
in the Plan.
That malpractice action was commenced by co-defendants 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
"Malpractice Complaint") in the malpractice action is annexed to co-defendants Motion to Dismiss
as Exhibit C. (DKT Entry No. 5)
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.
The complaint in this action, a copy of which is annexed hereto as Exhibit A, purports to
assert six (6) separate causes of action, to wit: (1) Fraud, (2) Injurious Falsehood, (3) Prima Facie
Tort, (4) Civil Conspiracy, and (5) Aiding and Abetting Fraud and (6) Defamation, all, exclusively
based on allegations contained in the Malpractice Complaint. As demonstrated below, none of the
foregoing 6 causes of action are viable claims and all must be dismissed on this motion.
LEGAL ARGUMENT
CPLR 3211(a)(7)
In analyzing a CPLR 3211(a)(7) motion the court must accept the facts alleged in the
complaint to be true and determine only whether the facts alleged fit within any cognizable legal
theory (see Stucklen v Kabro Assocs., 18 AD3d 461, 462 [2d Dep’t 2005]). However, "bare legal
conclusions are not presumed to be true, nor are they accorded every favorable inference"
(Breytman v Olinville Realty, LLC, 54 AD3d 703, 704 [2d Dep’t 2008]). Additionally, "in
assessing a motion under CPLR 3211(a)(7), a court may freely consider affidavits submitted by
the plaintiff to remedy any defects in the complaint and the criterion is whether the proponent of
the pleading has a cause of action, not whether he has stated one" (Simmons v Edelstein, 32 AD3d
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464, 465 [2nd Dep’t 2006]). In sum, "the sole criterion is whether the pleading states a cause of
action, and if from its four corners factual allegations are discerned which taken together manifest
any cause of action cognizable at law a motion for dismissal will fail" (Guggenheimer v Ginzburg,
43 NY2d 268, 275 [1977]).
On a motion made pursuant to CPLR 3211(a)(7) to dismiss a complaint, the burden never
shifts to the non-moving party to rebut a defense asserted by the moving party (Sokol v Leader,
74 AD3d 1180 [2nd Dept 2010]). Unless the motion is converted into one for summary judgment
pursuant to CPLR 3211[c] "affidavits may be received for a limited purpose only, serving normally
to remedy defects in the complaint," and such affidavits "are not to be examined for the purpose
of determining whether there is evidentiary support for the pleading" (Sokol v Leader, supra, citing
Rovello v Orofino Realty Co., 40 NY2d 633, 636-638 [1976]). Thus, a plaintiff "will not be
penalized because he has not made an evidentiary showing in support of his complaint" (Id.; citing
Rovello v Orofino Realty Co., 40 NY2d at 635). A court is, of course, permitted to consider
evidentiary material submitted by a defendant in support of a motion to dismiss pursuant to CPLR
3211(a)(7) (Id.). If the court considers evidentiary material, the criterion then becomes "whether
the proponent of the pleading has a cause of action, not whether he has stated one" (Id.).
Applying these principles to the instant application, the court ought to grant this motion in
its entirety.
POINT I
FIRST CAUSE OF ACTION FOR
FRAUD SHOULD BE DISMISSED
Plaintiffs’ causes of action relating to fraud should be dismissed as a matter of law. In order
to state a claim for fraud, a plaintiff must allege a material misrepresentation of fact, knowledge
of its falsity, an intent to induce reliance, justifiable reliance by the plaintiff and damages.
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Eurycleia Partners, LP v. Seward & Kissel, LLP, 12 N.Y.3d 553, 558 (2009). The allegations must
be stated with particularity to satisfy CPLR 3016(b). Id. Thus, the plaintiff must provide sufficient
facts to support a “reasonable inference” that the allegations of fraud are true. Id. at 559-60.
Conclusory allegations will not suffice. Id. Neither will allegations based on information and
belief. See Facebook, Inc. v. DLA Piper LLP (US), 134 A.D.3d 610, 615 (1st Dep’t 2015)
(“Statements made in pleadings upon information and belief are not sufficient to establish the
necessary quantum of proof to sustain allegations of fraud.”).
The elements of a cause of action to recover damages for fraud are (1) a misrepresentation or
a material omission of fact which was false, (2) knowledge of its falsity, (3) an intent to induce
reliance, (4) justifiable reliance by the plaintiff, and (5) damages (see Ginsburg Dev. Cos., LLC v
Carbone, 134 AD3d 890, 892).
Pursuant to CPLR 3016(b), where a cause of action is based on fraud, the “circumstances
constituting the wrong” must be “stated in detail,” including “specific dates and items” (Orchid
Constr. Corp. v Gottbetter, 89 AD3d 708, 710 [internal quotation marks omitted]; see Doukas v
Ballard, 135 AD3d 896, 898).
“To make out a prima facie case of fraud, the complaint must contain allegations of a
representation of material fact, falsity, scienter, reliance and injury. . . . CPLR 3016(b) further
requires that the circumstances of the fraud must be ‘stated in detail,’ including specific dates and
items.” Morales v. AMS Mortg. Servs., Inc., 69 A.D.3d 691, 692, 897 N.Y.S.2d 103, 105 (2d
Dep’t 2010) (internal quotation marks and citations omitted).
The complaint must make factual allegations sufficient to support each element of a cause of
action for fraud (see Kaufman v Cohen, 307 AD2d 113 [1st Dept 2003]) and bare allegations of
fraud without allegations of the details constituting the wrong are insufficient (Gervasio v
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DiNapoli, 26 AD2d 515 [2d Dept 1987]). Moreover, the Plaintiffs are required to set forth the
time and place of the alleged misrepresentations and who made them (see, e.g., Daly v
Kochanowicz, 2009 WL 2516932 [2d Dept 2009]; Eastman Kodak Co. v Roopak Enter., Ltd., 202
AD2d 220 [1st Dept 1994]).
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 mind which the administration of justice demands" 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 whether the statements held by the motion court to
be defamatory were possibly pertinent to the arbitration.
Here, as in Seltzer, the allegations in the Malpractice Complaint are all pertinent to the
malpractice action and, therefore, entitled to absolute privilege. 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.
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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 dismissed.
POINT II
SECOND CAUSE OF ACTION FOR
INJURIOUS FALSEHOOD SHOULD BE DISMISSED
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.
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), "[the plaintiff must show that the defendants made
false statements, 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 LWC Agency v St. Paul Fire & Mar. Irks.
Co.. 125 AD2d 371, 509 NYS2C197 [1986]). yin retiy9:1.0ie plaintiff did not allege special
damages (see Lesesne v Lesesne 292 AD2d 507, 740 NYS2d 352 [20021; DiSanto v Forsyth. 258
AD2d 497, 684 NYS2d 628 [1999])". Emphasis added.
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.
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POINT III
THIRD CAUSE OF ACTION FOR
PRIMA FACIE TORT SHOULD BE DISMISSED
The elements of a cause of action for prima facie tort are (1) the intentional infliction of
harm; (2) resulting in special damages, (3) without excuse or justification; and (4) by an act or
series of acts that would otherwise be lawful ( Burns Jackson Miller Summit Spitzer v Lindner, 59
NY2d 314, 333; Demicco Bros., Inc., 8 AD2d at 100).
In order to establish "intentional infliction of harm," a plaintiff must demonstrate that the
defendant acted with "disinterested malevolence," which is defined as a malicious act "unmixed
with any other and exclusively directed to injury and damage" another ( id.). Where other
demonstrable motives exist, such as profit, self-interest and business advantage, no recovery can
be had under prima facie tort ( Squire Records v Vanguard Rec. Socy., 25 AD2d 190 [1st Dept],
appeal dismissed 17 NY2d 870, appeal denied 17 NY2d 424, mot denied 18 NY2d 895), as
justification operates as a "neutralizing factor" that overrides the intent to injure ( Appalachian
Power Co. v American Inst. of Certified Pub. Accountants, 177 F Supp 345, 350 [SD NY], affd
268 F 2d 844 [2d Cir], cert denied 361 US 887). However, the motive or justification proffered
must be one that is cognizable as a matter of law ( ATI, Inc. v Ruder Finn, Inc., 42 NY2d 454,
459; Advance Music Corp. v American Tobacco Co., 296 NY 79, 85), and otherwise a "legitimate
reason" ( Demicco Bros., Inc., 8 AD3d at 100).
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.
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.
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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. In the
case at hand, the complaint in the malpractice action plainly shows the co-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.
POINT IV
FOURTH CAUSE OF ACTION FOR
CIVIL CONSPIRACY SHOULD BE DISMISSED
New York does not recognize civil conspiracy to commit a tort as an independent cause of
action (see Alexander & Alexander of N.Y. v Fritzen, 68 NY2d 968, 969; Brackett v Griswold,
112 NY 454, 466-467; Blanco v Polano, 116 AD3d 892, 895-896; Dickinson v Igoni, 76 AD3d
943, 945; see Hebrew Inst. for Deaf & Exceptional Children v Kahana, 57 AD3d 734, 735 [2008];
Salvatore v Kumar, 45 AD3d 560, 563 [2007]). Since the viability of the claim of civil conspiracy
in this case was derivative of the underlying tort, and the latter claim must be dismissed, the cause
of action alleging a civil conspiracy also must be dismissed (see CPLR 3211 [a] [7]).
POINT V
FIFTH CAUSE OF ACTION FOR
AIDING AND ABETTING FRAUD SHOULD BE DISMISSED
In order to plead properly a claim for aiding and abetting fraud, the complaint must allege:
(1) the existence of an underlying fraud; (2) knowledge of this fraud on the part of the aider and
abettor; and (3) substantial assistance by the aider and abettor in achievement of the fraud. Actual
knowledge of the fraud may be averred generally.
Substantial assistance exists where (1) a defendant affirmatively assists, helps conceal, or
by virtue of failing to act when required to do so enables the fraud to proceed, and (2) the actions
of the aider/abettor proximately caused the harm on which the primary liability is predicated. A
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plaintiff must plead a claim for aiding and abetting fraud with specificity pursuant to CPLR 3016
(b) and is not made out simply by allegations which would be sufficient to state a claim against
the principal participants in the fraud. However, actual knowledge need only be pleaded generally,
cognizant, particularly at the pre-discovery stage, that a plaintiff lacks access to the very discovery
materials which would illuminate a defendant’s state of mind, and an intent to commit fraud is to
be divined from surrounding circumstances.
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.
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.
POINT VI
SIXTH CAUSE OF ACTION FOR
DEFAMATION SHOULD BE DISMISSED
Defamation is the injury to a person’s reputation, either by written expression or oral
expression, that results from making a false statement which tends to expose the person to public
contempt, ridicule, aversion, or disgrace, or induce an evil opinion of the person in the minds of
right-thinking persons, and to deprive the person of their friendly intercourse in society. Sydney
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v. MacFadden Newspaper Publ. Corp., 242 N.Y. 208, 211-212 (1926). A written or printed
defamation is a libel. Horton v. Binghamton Press Co., 122 A.D. 332, 335 (3rd Dept., 1907). A
spoken defamation is a slander. Liffman v. Booke, 59 A.D. 2d 687, 687 (1st Dept., 1977). Trade
libel, also known as injurious falsehood, is the knowing publication of false and derogatory
material regarding another’s business, that is calculated to prevent others from doing business with
the defamed party or otherwise interferes with its business relationships. Banco Popular N. Am. v.
Lieberman, 75 A.D. 3d 460, 462 (1st Dept., 2010); Waste Distillation Tech. v. Blasland & Bouck
Engrs., P.C., 136 A.D. 2d 633, 634 (2nd Dept., 1988). See also Golub v. Enquirer/Star Group, Inc.,
89 N.Y. 2d 1074, 1076 (1997) (“To be actionable as words that tend to injure another in his or her
profession, the challenged statement must be more than a general reflection upon decedent’s
character or qualities. Rather, the statement must reflect on her performance or be incompatible
with the proper conduct of her business.”) (internal citations omitted). The elements of a cause of
action for defamation are: (1) a false statement, (2) publication without privilege or authorization
to a third party, (3) by at least a negligence standard of fault, and (4) the statement either causes
special damages or constitutes defamation per se. Penn Warranty Corp. v. DiGiovanni, 10 Misc.
3d 998, 1002 (Sup. Ct., New York Co., 2005). There are four categories of statements that are
considered defamatory per se: (1) charging the plaintiff with a serious crime; (2) tending to injure
the plaintiff in its business, trade or profession; (3) statements that the plaintiff has some loathsome
disease; and (4) statements that impute unchastity. Liberman v. Gelstein, 80 N.Y. 2d 429, 435
(1992). A plaintiff in a defamation case involving a private person and a private concern bears the
burden of proof by fair preponderance of the evidence. Zaidi v. United Bank Ltd., 194 Misc. 2d 1,
11 (Sup. Ct., New York Co., 2002).
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Whether the contested statements are reasonably susceptible of a defamatory connotation
presents a legal question for determination by the Court. Weiner v. Doubleday & Co., Inc., 74
N.Y. 2d 586, 592 (1989). In making this determination the Court must first determine whether the
statement complained of reasonably permits the construction urged by the plaintiff, and then, it
must determine whether there is a reasonable basis to find that the meaning ascribed to the
statement is actionable. James v. Gannett Co., Inc., 40 N.Y. 2d 415, 419 (1976). See also Dillon
v. City of New York, 261 A.D. 2d 34, 38 (1st Dept., 1999) (“Loose, figurative or hyperbolic
statements, even if deprecating the plaintiff, are not actionable.”). If the Court determines that a
statement is susceptible of only one meaning, then the question as to whether it is actionable per
se is to be decided by the Court as a matter of law. Celle v. Filipino Reporter Enterprises Inc., 209
F. 3d 163, 178 (2nd Cir., 2000) (“If the statement is susceptible of only one meaning the court
must determine, as a matter of law, whether that one meaning is defamatory.”) (internal citations
and quotations omitted). If a statement is not reasonably susceptible of a defamatory meaning, it
is not actionable. Golub, supra, 89 N.Y. 2d at 1076.
In making the threshold determination as to whether a statement is reasonably susceptible
of a defamatory connotation, the Court is required to construe the words in accordance with their
natural or ordinary meaning, tested against the understanding or from the standpoint of the average
reader. See Crane v. New York Telegram Corp., 308 N.Y. 470, 474 (1955); Mencher v. Chesley,
297 N.Y. 94, 99 (1947); Aronson v. Wiersma, 65 N.Y. 2d 592, 593-594 (1985). The language
should be considered in terms of its natural reading and not in terms of what the defendant intended
to mean when publishing the allegedly defamatory statement. Walsh v. Winchell, 88 N.Y.S. 2d
22, 24 (Sup. Ct., Kings Co., 1941). The Court must not strain to interpret the language in the
extreme to find a defamatory interpretation where none exists. Aronson, supra, 65 N.Y. 2d at 594
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(1985). If words are not reasonably susceptible of a defamatory meaning, they are not actionable
and cannot be made so by a strained or artificial construction. Golub, supra, 89 N.Y. 2d at 1076.
An allegedly defamatory statement is to be considered in terms of the scope and object of
the whole communication and consequently only possess the meaning which the context of the
entire publication would show it to have. Crane, supra, 308 N.Y. at 474. In determining whether a
particular statement is susceptible of a defamatory connotation, consideration must not only be
given to the context in which the statement appears, but also to the circumstances surrounding the
issuance of the publication containing the allegedly defamatory statement. Silsdorf v. Levine, 59
N.Y. 2d 8, 13 (1983) (“The entire publication, as well as the circumstances of its issuance, must
be considered in terms of the effect upon the ordinary reader.”). In arriving at the sense in which
defamatory language is employed, therefore, it is proper and necessary to consider the cause,
occasion, and circumstances of its publication, particularly where the words in controversy are not
clearly actionable per se. Tower v. Crosby, 125 Misc. 403, 404 (Sup. Ct., Wayne Co., 1925) (“the
general rules seems to be that a libel depending upon an innuendo is not per se but per quod, and
is only actionable for such special damages as are directly and proximately caused by it”), rev’d
on other grounds, 214 A.D. 392 (4th Dept., 1925).
“Defamation by implication” is premised not on direct statements but on false suggestions,
impressions, and implications arising from otherwise truthful statements. Armstrong v. Simon &
Schuster, Inc., 85 N.Y. 2d 373, 380-381 (1995). Because innuendo is only intended to define,
explain, or clarify the meaning of an allegedly defamatory statement as it applies to the plaintiff,
innuendo may not be used to enlarge upon the meaning of the words used to as to convey a meaning
that is not expressed, nor may it be used to give the words a broader application than they would
normally have. See Tracy v. Newsday, Inc., 5 N.Y, 2d 134, 136 (1959) (“The admitted purpose of
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innuendo is to explain matter that is insufficiently expressed. Its office is to point out the libelous
meaning of the words used. If the article is not susceptible of a libelous meaning, then innuendo
cannot make it libelous.”) (internal citations omitted); Jaszai v. Christie’s, 279 A.D. 2d 186, 190
(1st Dept., 2001) (“Innuendo may help to explain, but it cannot enlarge, the meaning of words.”)
(internal citations omitted); Armstrong v. Sun Printing and Publ. Assoc., 137 A.D. 828, 830 (2nd
Dept., 1910) (“An innuendo does not enlarge the meaning of words; it is to define them or to show
that they relate to the plaintiff.”) (internal citations omitted). If words are not susceptible to a
defamatory meaning, then innuendo cannot be used to enlarge upon their plain meaning or to bring
out an alleged hidden meaning and thereby convey an import that was not expressed. Tellier-Wolfe
v. Viacom Broadcasting, Inc., 134 A.D 2d 860, 861 (4th Dept., 1987) (“if the words expressed are
not susceptible of a defamatory meaning, then innuendo cannot enlarge upon their plain meaning
to convey an import that was not expressed”). “The determination whether statements which are
not defamatory on their face may in fact be defamatory because of the use of innuendo is one
which must be made by the court.” WDM Plainning, Inc. v. United Credit Corp., 47 N.Y. 2d 50,
53 (1979). A publication that is not actionable per se cannot be made so by an innuendo. Morrison
v. Smith, 177 N.Y. 366, 369 (1904).
The contested statements are not reasonably susceptible of a defamatory connotation when
construed in their natural or ordinary meaning, tested against the understanding or from the
standpoint of the average reader or listener. The statements complained of do not reasonably permit
the construction urged by Plaintiff and are susceptible of only one meaning that is not defamatory
and cannot be made so by Plaintiff’s strained and artificial construction. Accordingly, the
complaint should be dismissed with prejudice.
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POINT VII
THE COMPLAINT FAILS TO STATE A CAUSE OF ACTION BECAUSE THE
STATEMENTS COMPLAINED OF ARE ABSOLUTELY PRIVILEGED AS HAVING
BEEN MADE BY A PARTY IN CONNECTION WITH A JUDICIAL PROCEEDING
For reasons of public policy, the law recognizes certain communications as privileged and,
as such, not within the general rules imposing liability for defamation. Rosenberg v. MetLife, Inc.,
8 N.Y. 3d 359, 365 (2007) (“It is well settled that public policy mandates that certain
communications, although defamatory, cannot serve as the basis for the imposition of liability in
a defamation action.”) (internal citations and quotations omitted). Under the law of defamation, a
privileged communication or statement is one which would be defamatory and actionable except
for the occasion on which, or the circumstances under which, it is made. Park Knoll Associates v.
Schmidt, 59 N.Y. 2d 205, 208 (1983) (“A privileged communication is one which, but for the
occasion on which it is uttered, would be defamatory and actionable.”) (internal citations omitted).
Whether a privilege is applicable to a defamatory publication is a question of law for the Court.
People ex rel. Bensky v. Warden of City Prison, 258 N.Y. 55, 60 (1932) (“The determination of
the question of privilege is a question of law, and if it be determined that the language used was
not impertinent, the privilege is absolute.”) (internal citations omitted).
It is a well settled rule that oral and written statements made in the course of a judicial
proceeding are absolutely privileged and protected from liability for defamation if, by any view or
under any circumstances, they may be considered material or pertinent to the litigation. Rosenberg,
supra, 8 N.Y. 3d at 365 (“statements made during the course of a judicial ... proceeding are clearly
protected by an absolute privilege as long as such statements are material and pertinent to the
questions involved”) (internal citations and quotations omitted); Andrews v. Gardiner, 224 N.Y.
440, 445 (1918) (“The privilege embraces anything that may possibly be pertinent.”) (internal
citations omitted); Youmans v. Smith, 153 N.Y. 214, 219 (1897) (“A counsel, or party conducting
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judicial proceedings, is privileged in respect to words or writings used in the course of such
proceedings reflecting injuriously upon others, when such words and writings are material and
pertinent to the questions involved; within such limit, the protection is complete, irrespective of
the motive with which they are used; but such privilege does not extend to matter, having no
materiality or pertinency to such questions.”) (quoting Marsh v. Ellsworth, 50 N.Y. 309, 311-312
[1872]). The absolute privilege from defamation suit conferred upon statements made in the course
of litigation is complete, irrespective of the motive with which the statements are used. Youmans,
supra, 153 N.Y. at 219; Marsh, supra, 50 N.Y. at 311-312. The cloak of absolute privilege attaches
to statements made by parties in proceedings in Court or for use in such proceedings. Park Knoll
Associates, supra, 59 N.Y. 2d at 209.
The rule of absolute privilege as applied to judicial proceedings is a broad and liberal one
designed not only to protect the participants in judicial actions and proceedings but also to protect
the public by promoting the administration of justice. Park Knoll Associates, supra, 59 N.Y. 2d at
208 (“Because the perceived social benefit in encouraging free speech or the discharge of
governmental responsibility sometimes outweighs the individual’s underlying right to a good
reputation, the individual’s right may have to yield to a privilege granted the speaker barring
recovery of damages for the defamatory statements.”); Hyman v. Press Pub. Co., 199 A.D. 609,
611 (1st Dept., 1922) (“This freedom from liability is founded upon the principle that it is for the
public interest that in certain cases persons should speak or write the whole truth fearlessly,
uninfluenced by consideration of consequences.”). Indeed, the law offers this shield because if
persons were afraid to set forth their rights in legal proceedings for fear of liability to defamation
suits, greater harm would result in the suppression of the truth, as explained by the Court of
Appeals in Marsh in 1872:
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Should those engaged in the management of causes before the courts
be placed in fear if prosecutions for slander for reflections cast upon
the credibility of parties and witnesses, and their defence made to
depend on the truth of what is said, trials of question or fact,
depending on credibility of witnesses, would be far less likely to
lead to as correct results as in cases where no such embarrassment
was felt. In the latter, the court and jury will have their attention
called to every consideration having a tendency to enable them to
arrive at the truth. This tends to promote an intelligent