Preview
FILED: NASSAU COUNTY CLERK 01/21/2020 09:30 PM INDEX NO. 616386/2019
NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 01/21/2020
Index No.: 616386/2019
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU AFFIRMATION OF
-------------------------------------------------------------------X GARY ROSEN, ESQ. IN
ROSEN LAW LLC and OPPOSITION OF
GARY ROSEN, DEFENDANT MEHRAN
MALEKAN’S
Plaintiffs, MOTION TO DISMISS
-against- (motion sequence # 1)
And
SHAHRAM MOBASSER
MEHRAN MALEKAN, and DEFENDANT EBRAHIM
EBRAHIM SHOKRIAN, SHOKRIAN’S
MOTION TO DISMISS
Defendants. (motion sequence # 2)
-------------------------------------------------------------------X
Gary Rosen, Esq. an attorney duly admitted to practice law in the State of New York
affirms under penalties of perjury that:
1. I am the attorney for Plaintiffs and I am an individual Plaintiff in the instant
action.
2. I am fully familiar with the facts and circumstances as set forth herein.
3. There are six (6) causes of action set forth in the Complaint:
A. The First Cause of Action is for Fraud;
B. The Second Cause of Action is for Injurious Falsehood;
C. The Third Cause of Action is for Prima Facie Tort;
D. The Fourth Cause of Action is for Civil Conspiracy;
E. The Fifth Cause of Action is for Aiding and Abetting Fraud; and
F. The Sixth Cause of Action is for Defamation.
4. This affirmation is submitted in opposition to Defendant Mehran Malekan’s
motion to dismiss and Defendant Ebrahim Shokrian’s motion to dismiss.
5. Defendants herein are members of 2426 Ocean LLC (See NYSCEF Doc. No. 8
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wherein Defendant Mehran Malekan states in his affidavit that “I am a member of 2426 Ocean
Avenue LLC”.
6. There is no affidavit submitted by Defendant Ebrahim Shokrian in support of
Defendant Ebrahim Shokrian’s motion to dismiss.
7. Defendant Ebrahim Shokrian’s attorney, Matin Emouna, Esq. has submitted an
affirmation (NYS CEF Doc. 11) in which he states in paragraph “4” that “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), and not by Ebrahim Shokrian…”. There is no affidavit
from Defendant Ebrahim Shokrian stating that he does not own any interest in 2426 Ocean
Avenue LLC or when his ownership ceased, and whether he made the decision to commence the
2426 Action on behalf of 2426 Ocean LLC.
8. As members of 2426 Ocean LLC, they made statements in the complaint (Exhibit
“1”) and in the amended complaint (Exhibit “2”) in the 2426 Action.
9. Defendants herein, as members of 2426 Ocean LLC, made statements which were
not in good faith and were made with malice.
10. Inasmuch as the complaint in this action sufficiently alleges the required elements
for the six (6) different causes of action, dismissal based on the affirmation of Jonathan M.
Goidel, Esq. and the affidavit of Mehran Malekan are insufficient to dismiss the six (6) causes of
action set forth in the complaint.
11. The 2426 Action and the allegations in the amended complaint therein is a sham
and while casting blame on Plaintiff Rosen Law LLC and Plaintiff Gary Rosen herein, such
blame is baseless and without merit and Defendants know that there was no merit to commence
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the 2426 Action against Plaintiff Rosen Law LLC and Plaintiff Gary Rosen and only did so in an
attempt to coerce Plaintiff Rosen Law LLC and Plaintiff Gary Rosen to pay money to 2426
Ocean LLC to settle the 2426 Action.
12. The undeniable fact is that Defendant Mehran Malekan stated in paragraph “8” of
his affidavit (NYS CEF Doc. No. 8), that “… shortly after closing on the purchase of a unit in the
building, one of the purchasers, an attorney, noticed a misstatement at page 33 of the Plan, which
set forth the amount of time a so-called 421(a) tax abatement would last if obtained”.
13. Page 33 of the condominium offering plan for The 2424 Ocean Condominium
states that:
“The Condominium may be eligible for partial tax exemption benefits under
Section 421-a of the Real Property Tax Law. An application has been filed with
The City of New York Department of Housing Preservation and Development,
but has not yet been acted upon. It is possible that the benefits will not be
obtained before the closing of the first Unit and there is no guaranty that
benefits will be granted to the property. The Sponsor will use its best efforts to
obtain 421-a tax benefits. The Sponsor must submit a final application for 421-a
benefits within ninety (90) days from the issuance of the Temporary Certificate of
Occupancy or Permanent Certificate of Occupancy, whichever is issued first. It is
possible that the benefits will not be obtained before the Closing of the first Unit
and there is no guaranty that benefits will be granted to the property. The Sponsor
will use its best efforts to obtain 421-a tax benefits. The tax exemption benefits
is a diminishing benefit and will terminate after fifteen (15) years. A
Preliminary Certificate of Eligibility has been and a copy is included on page xxx
of the offering plan.
Pursuant to N.Y. Real Property Tax Law §421-a(7)(a)(ii), certain properties
within the City of New York that apply for partial tax exemption benefits under
Section 421-a of the Real Property Tax Law are located within a geographic
exclusion area. Properties within the geographic exclusion area are required to
provide affordable housing in exchange for receiving 421-a tax benefits. In the
geographic exclusion areas, twenty percent (20%) of the units must be for
affordable housing.
Properties in the geographic exclusion area are required to have not less than
twenty percent of the units, upon the initial rental or sale of the units and upon all
subsequent rentals of the units after a vacancy, be affordable to and occupied or
available for occupancy by individuals or families whose incomes at the time of
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initial occupancy do not exceed sixty percent of the area median incomes adjusted
for family size.
The 2424 Ocean Condominium is NOT located within a geographic exclusion
area and therefore, the 421-a rules as applicable to the geographic exclusion
area do not apply and there is no requirement that twenty percent (20%) of
the units be for affordable housing.
N.Y. Real Property Tax Law §421-a(8)(b) requires that building service
employees must be paid at a prevailing wage for the duration of the building’s tax
exemption. However, pursuant to N.Y. Real Property Tax Law §421-a(8)(c)(i),
the 2424 Ocean Condominium is exempt from the prevailing wage requirement as
the building contains fewer than fifty residential units (N.Y. Real Property Tax
Law §421-a(8)(c)(i)).
The Sponsor intends that the building shall be exempted from the statutory
obligations to register the units as rent-stabilized by reason of its condominium
status pursuant to N.Y. Real Property Tax Law §421-a(2)(f).
If prior to consummation of the condominium plan sponsor rents any residential
unit (or portion thereof), to any person other than an interim lessee, sponsor is
obligated to abandon the offering plan in accordance with the provisions set forth
in 13 NYCRR §§ 20.1(1)(2) and 20.5(g).
14. Special Risk # 47 in the Condominium Offering Plan states that:
“47. NO GUARANTY AS TO 421-A TAX EXEMPTION BENEFITS.
In no event will Sponsor, Sponsor’s counsel, Sponsor’s special tax
counsel, Sponsor’s Real Estate Tax Consultant, Selling Agent, or any Offeror
hereunder be liable to any Purchaser or person, nor will any Purchaser have the
right to rescind his Purchase Agreement in the event Section 421-a benefits are
not implemented or if a Final Certificate of Eligibility is not issued, or in the event
the date of implementation or amount or duration of such benefit and the
resulting taxes differ from those projected herein.”
15. Page “32” of the Condominium Offering Plan states that “…. The projection
and estimates of the Real Estate Taxes and Assessed Valuations as used in this Offering
Plan that will be payable for each of the Units during the projected First Year of
Condominium Operations is based upon an opinion letter prepared by Moseson &
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Associates Corp., 769 Empire Avenue, Far Rockaway, New York 11691.”
THE VARIOUS LAWSUITS
16. This action was commenced because Defendant Mehran Malekan, Defendant
Shahram Mobasser and Defendant Ebrahim Shokrian are the sole members of 2426 Ocean LLC,
a New York limited liability company, which entity commenced and continued to maintain a
lawsuit, in bad faith and with malice, against Plaintiffs herein. The said lawsuit was initially
commenced on July 17, 2019 by 2426 Ocean LLC in Supreme Court, Kings County, and which
was recently transferred to this Supreme Court, Nassau County under Index No. 617430/2019
and assigned to Justice Steinman (2426 Ocean LLC v. Gary Rosen, Esq., Rosen Law LLC,
Yehuda Moseson, and Moseson & Associates Corp. (Index No. 617430/2019) (the “2426
Action”).
17. For some background, while the 2426 Action is assigned to Justice Steinman, this
action is assigned to Justice Libert and there are two other relevant lawsuits as set forth below
assigned to Justice Driscoll.
18. There is a proceeding entitled by Ebrahim Shokrian v. Shahram Mobasser and
Mehran Meleken and 2426 Ocean Avenue LLC, Index No. 613688/2017 before Justice Driscoll
for dissolution of 2426 Ocean Avenue LLC.
19. There is an action entitled by Mehran Meleken v. Ebrahim Shokrian, Shahram
Mobasser and 2426 Ocean Avenue LLC, Index No. 654928/2017 before Justice Driscoll for
breach of contract and unjust enrichment.
20. The defendants herein have had their disputes with each other, and sued each
other, and negligently, and in bad faith and with malice, dragged in Rosen Law LLC and Gary
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Rosen, Esq. into their “partner” disputes and defamed and damaged the reputation of Rosen Law
LLC and Gary Rosen, Esq. with no legitimate basis for doing so. The defendants herein have
specifically and knowingly made materially false statements in the complaint and amended
complaint in the 2426 Action regarding Rosen Law LLC and Gary Rosen, Esq. regarding a tax
abatement which Rosen Law LLC and Gary Rosen, Esq. had nothing to do with for The 2424
Ocean Condominium.
21. Due to their bad faith and malice and mal-intent, Defendant Mehran Malekan,
Defendant Shahram Mobasser and Defendant Ebrahim Shokrian have damaged Plaintiff Rosen
Law LLC and Plaintiff Gary Rosen.
22. Plaintiffs herein have a right under the law to sue Defendant Mehran Malekan,
Defendant Shahram Mobasser and Defendant Ebrahim Shokrian for the statements made by
them in the amended complaint in the 2426 Action, which statements are not protected by
absolute privilege, as full discussed below.
23. This is a case where the Defendants can, and should be held accountable, for their
bad faith and malice in commencing and maintaining the 2426 Action against Rosen Law LLC
and Gary Rosen, Esq.
24. By being sued without any legitimate basis, Defendants herein caused damages to
the reputation of Rosen Law LLC and Gary Rosen, Esq.
25. The law is clear that a party cannot just say anything that they want to say in a
complaint and then claim that they are protected by absolute privilege.
26. As discussed below, the statements made by Defendants in the amended
complaint in the 2426 Action are not protected by absolute privilege.
27. Rosen Law LLC and Gary Rosen, Esq. has built a good and quality reputation as
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attorneys in the real estate industry over a period of approximately twenty (20) years, and the
false allegations against Rosen Law LLC and Gary Rosen, Esq. set forth in the amended
complaint in the 2426 Action are stated by Defendants with bad intent, malice and negligently
made to have caused Rosen Law LLC and Gary Rosen, Esq. harm, for which the six (6) causes
of action alleged in the complaint in this action are against the Defendants.
BACKGROUND
28. 2426 Ocean LLC developed a 12 unit residential condominium and 1 commercial
condominium building at 2424 Ocean Avenue, Brooklyn, New York.
29. 2426 Ocean LLC’s member, Defendant Ebrahim Shokrian hired Plaintiff Rosen
Law LLC to prepare a condominium offering plan for The 2424 Ocean Condominium.
30. Neither 2426 Ocean LLC, nor Defendant Mehran Malekan or Defendant Shahram
Mobasser hired Rosen Law LLC and Gary Rosen, Esq. for any purpose, and there was no privity
between 2426 Ocean LLC, Defendant Mehran Malekan and/or Defendant Shahram Mobasser, on
the one hand, and Plaintiff Rosen Law LLC and Plaintiff Gary Rosen, Esq., on the other hand.
31. Plaintiff Rosen Law LLC and/or Plaintiff Gary Rosen, Esq. were not hired to
prepare or file any application for a real estate tax abatement for The 2424 Ocean Condominium.
32. It is undisputable that 2426 Ocean LLC hired Yehuda Moseson and Moseson &
Associates Corp. to prepare an application for a tax abatement for The 2424 Ocean
Condominium under Section 421-a of the Real Property Tax Law (the “Tax Abatement”).
33. Defendants admit in the 2426 Action’s amended verified complaint that Plaintiff
retained the professional services of defendants Yehuda Moseson and Moseson & Associates,
Corp. to “investigate, advise and draft an opinion letter…. Regarding the applicability of the City
of New York’s program for partial real estate tax exemption under Section 421-a of the Real
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Property Tax Law and the procedure therefore for the purposes of filing and amending the
Offering Plan for the Property” (See paragraph “25” of the amended verified complaint in
the 2426 Action – Exhibit “2”).
34. The only party responsible for filing for the Tax Abatement and issuing an
opinion letter was Yehuda Moseson and Moseson & Associates Corp.
35. Plaintiff Rosen Law LLC and Plaintiff Gary Rosen had nothing to do with the
filing of or obtaining the Tax Abatement for 2426 Ocean LLC or the Defendants herein, which
filing of the Tax Abatement and the issuance of the opinion letter by Yehuda Moseson and
Moseson & Associates Corp. is the sole basis for the 2426 Action.
36. A buyer of a condominium unit complained to the New York State Department of
Law, Office of the Attorney General, that the Tax Abatement should have been for 15 years from
the date that the buyer purchased his condominium unit.
37. Whatever the time frame regarding the duration of the Tax Abatement was, it was
only Yehuda Moseson, and Moseson & Associates Corp. that prepared the application for the
Tax Abatement for submission to the New York City Department of Housing Preservation and
Development and only them, Yehuda Moseson and Moseson & Associates Corp. who provided
an opinion letter contained on pages 125 to 127 of the Condominium Offering Plan (Opinion
Letter - Exhibit “3” hereto and Condominium Offering Plan - Exhibit “4” hereto).
38. Yet, although the Defendants at all times knew, or should have known that Rosen
Law LLC and Gary Rosen, Esq. had nothing to do with the Tax Abatement, the Defendants
herein directed 2426 Ocean Avenue LLC to commence a frivolous and defamatory lawsuit
against Plaintiff Rosen Law LLC and Plaintiff Gary Rosen, Esq. for which Defendant Mehran
Malekan, Defendant Shahram Mobasser and Defendant Ebrahim Shokrian should be held
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accountable.
39. Defendants herein, Defendant Mehran Malekan, Defendant Shahram Mobasser
and Defendant Ebrahim Shokrian, caused 2426 Ocean LLC to commence the 2426 Action
against Plaintiff Rosen Law LLC and Plaintiff Gary Rosen, in bad faith and with malice.
Defendant Mehran Malekan stated in his affidavit submitted in this action (Paragraph “8” – NYS
CEF Doc. 8” that “… shortly after closing on the purchase of a unit in the building, one of the
purchasers, an attorney, noticed a misstatement at page 33 of the Plan, which set forth the
amount of time a so-called 421(a) tax abatement would last if obtained.”
40. There was no misstatement at page 33 of the condominium offering plan and
Defendants herein knew that and know that.
41. Defendants and/or 2426 Ocean LLC hired Yehuda Moseson and Moseson &
Associates Corp. to prepare and file the Tax Abatement and hired Yehuda Moseson and
Moseson & Associates Corp. to provide an opinion letter regarding the Tax Abatement.
42. Page 33 of the Condominium Offering Plan is annexed hereto as Exhibit “5”, but
must be taken in context with the Real Estate Tax Opinion Letter prepared by Yehuda Moseson,
and Moseson & Associates Corp. - Exhibit “3”.
43. When Defendant Mehran Malekan, Defendant Shahram Mobasser and Defendant
Ebrahim Shokrian directed 2426 Ocean LLC to commence the 2426 Action against Plaintiff
Rosen Law LLC and Plaintiff Gary Rosen, they and their attorneys erred because they did not
realize that it was Yehuda Moseson and Moseson & Associates Corp. that handled and was
100% responsible for the preparation of and filing of the Tax Abatement. Plaintiff Rosen Law
LLC and Plaintiff Gary Rosen only prepared the condominium offering plan, and used the
opinion letter furnished by 2426 Ocean LLC which they obtained from Yehuda Moseson and
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Moseson & Associates Corp. for inclusion into the Condominium Offering Plan.
44. The 2426 Action was commenced on July 17, 2019 under Index No. 515712/2019
in Supreme Court, Kings County, which was transferred at the request of Plaintiffs herein to
Supreme Court, Nassau County, now Index No. 617430/2019 and assigned to Justice Steinman.
45. When the 2426 Action was commenced, the only defendants were “Gary Rosen,
Esq. and Rosen Law, LLC”.
46. Thereafter, I had a telephone conversation with Defendant Mehran Malekan’s
attorney, Jonathan M. Goidel, Esq., and I told him that he did not realize that neither I, nor Rosen
Law LLC prepared the application for the Tax Abatement under Section 421-a of the Real
Property Tax Law, neither I, nor Rosen Law LLC issued a real estate tax opinion letter, and
neither I, nor Rosen Law LLC had anything to do with the Tax Abatement for The 2424 Ocean
Condominium.
47. I told Jonathan M. Goidel, Esq. that I prepared the condominium offering plan but
that Yehuda Moseson, and Moseson & Associates Corp. prepared the application for the Tax
Abatement under Section 421-a of the Real Property Tax Law for The 2424 Ocean
Condominium and filed the application with the New York City Department of Housing
Preservation and Development and Yehuda Moseson and Moseson & Associates Corp. provided
the real estate tax opinion letter to 2426 Ocean LLC.
48. I told and showed Defendant Mehran Malekan’s attorney, Jonathan M. Goidel,
Esq. that the condominium offering plan actually contained the opinion letter from Yehuda
Moseson, and Moseson & Associates Corp. on pages 125 to 127 of the Condominium Offering
Plan, which Yehuda Moseson, and Moseson & Associates Corp. provided to 2426 Ocean LLC
and which detailed all of the facts and opinions of Yehuda Moseson, and Moseson & Associates
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Corp. regarding the Tax Abatement under Section 421-a of the Real Property Tax Law for The
2424 Ocean Condominium.
49. When I showed Jonathan M. Goidel, Esq. that he and 2426 Ocean LLC erred by
suing the wrong parties, by suing Rosen Law LLC and Gary Rosen, Esq. instead of suing
Yehuda Moseson, and Moseson & Associates Corp., Mr. Goidel asked “Don’t you have
malpractice insurance you can give this to”. I responded, that I had nothing to do with the Tax
Abatement under Section 421-a of the Real Property Tax Law for The 2424 Ocean
Condominium and you should be discontinuing the action against Rosen Law LLC and Gary
Rosen, that the contents of the complaint was defamatory, injurious to my business and
reputation, and that if his clients have or had an issue regarding the Tax Abatement, the parties
responsible, if they have any liability, would be Yehuda Moseson, and Moseson & Associates
Corp., not Rosen Law LLC and Gary Rosen, Esq.
50. The 2426 Action was commenced in bad faith and with malice, and continued and
maintained in bad faith and with malice, when the Defendants herein knew that only Yehuda
Moseson and Moseson & Associates Corp. had prepared, filed and been responsible for the Tax
Abatement under Section 421-a of the Real Property Tax Law for The 2424 Ocean
Condominium and issued the opinion letter regarding the duration of the Tax Abatement.
51. On October 21, 2019, 2426 Ocean Avenue LLC, at the direction of Defendants
herein filed an amended complaint in the 2426 Action (Exhibit “2”), naming Yehuda Moseson,
and Moseson & Associates Corp. as defendants, but refusing to discontinue the 2426 Action
against Rosen Law LLC and Gary Rosen, Esq.
52. Defendants are keeping Plaintiff Rosen Law LLC and Plaintiff Gary Rosen, Esq.
as defendants in the 2426 Action only in an attempt to shake down Plaintiff Rosen Law LLC and
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Plaintiff Gary Rosen, Esq. for money, without any reason or justification or valid basis in law or
in equity, for Plaintiff Rosen Law LLC and Plaintiff Gary Rosen, Esq. having to pay any money
to 2426 Ocean LLC.
53. In Leon v Martinez, 84 NY2d 83, 87-88 (1994), the Court of Appeals stated that
“On a motion to dismiss pursuant to CPLR 3211, the pleading is to be afforded a liberal
construction (see, CPLR 3026). We accept the facts as alleged in the complaint as true, accord
plaintiffs the benefit of every possible favorable inference, and determine only whether the facts
as alleged fit within any cognizable legal theory (Morone v Morone, 50 NY2d 481, 484; Rovello
v Orofino Realty Co., 40 NY2d 633, 634). Under CPLR 3211 (a) (1), a dismissal is warranted
only if the documentary evidence submitted conclusively establishes a defense to the asserted
claims as a matter of law (see, e.g., Heaney v Purdy, 29 NY2d 157). In assessing a motion under
CPLR 3211 (a) (7), however, a court may freely consider affidavits submitted by the plaintiff to
remedy any defects in the complaint (Rovello v Orofino Realty Co., supra, at 635) and "the
criterion is whether the proponent of the pleading has a cause of action, not whether he has stated
one" (Guggenheimer v Ginzburg, 43 NY2d 268, 275; Rovello v Orofino Realty Co., supra, at
636). In light of these principles, we agree with the majority at the Appellate Division that the
instant complaint and supporting affidavit, although inartfully drafted, adequately alleged for
pleading survival purposes that the instrument prepared by Futterman was intended by all parties
to effectuate a present assignment to plaintiffs of interests in the future settlement.”
54. It is respectfully submitted that the Plaintiffs have cognizable causes of action
against the Defendants and such cognizable causes of action are stated in the complaint.
55. It is respectfully submitted that based on the four corners of the Complaint, there
are six cognizable causes of action against the Defendants.
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56. The complaint in this action is pled with specificity and details to give the Court
and all of the defendants ample notice of why they are being sued for Fraud, Injurious Falsehood,
Prima Facie Tort, Civil Conspiracy, Aiding and Abetting Fraud and Defamation.
57. Contrary to the claims by Defendants in their motion, this action is not in
retaliation for the commencement of any action by any other party, but this action is brought
specifically because of the slanderous and defamatory allegations in the complaint in the 2426
Action. Under the law, it is respectfully submitted that there is merit and cognizable claims to
this action and the Complaint as written, states specificity and contains all of the elements
required to state cognizable causes of action against the Defendants. There are independent
cognizable and viable causes of action. This action was commenced because of the bad faith and
malice of the Defendants in causing their company, 2426 Ocean LLC to commence and maintain
the 2426 Action.
DEFENDANTS ARE NOT ENTITLED TO BE SHIELDED
BY ABSOLUTE PRIVILEGE OF STATEMENTS MADE IN
THE COMPLAINT IN THE 2426 ACTION.
58. Defendants claim that they are entitled to absolute privilege and in effect can say
anything that they want to say in a complaint. That is not the law in New York State.
59. Defendants in this action are not entitled to an absolute privilege of statements
made by them in the complaint and the amended complaint in the action entitled 2426 Ocean
Avenue, LLC v. Gary Rosen, Esq. and Rosen Law, LLC, Yehuda Moseson, and Moseson &
Associates Corp., Index No. 617430/2019, Supreme Court, Nassau County (the “2426 Action”)
which forms the basis for the allegations in the complaint in this action.
60. Absolute privilege is only afforded to a party in a lawsuit if the statements are
pertinent to the subject matter of the lawsuit ...[and] are made in good faith and without
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malice. Ginarte Gallardo Gonzalez & Winograd, LLP v Schwitzer, 2019 NY Slip Op 33275[U],
21 (Supreme Ct., N.Y. Co. 2019) citing Lacher v Engel, 33 AD3d 10, 13, 817 N.Y.S.2d 37 (1st
Dept. 2006).
61. In Ginarte Gallardo Gonzalez, supra, the Court stated that “this (absolute)
‘privilege is capable of abuse and will not be conferred where the underlying lawsuit was a sham
action brought solely to defame" citing Flomenhaft v Finkelstein, 127 AD3d 634, 638, 8
N.Y.S.3d 161 (1st Dept. 2015).
62. “The absolute privilege that attaches to statements made in the course of legal
proceedings may be lost if abused. More specifically, the privilege is limited to statements that
are not only pertinent to the subject matter of the lawsuit but are made in good faith and without
malice.” Lacher v Engel, 33 AD3d 10, 11 (1st Dept 2006).
63. It is certainly an issue of fact and properly plead that Defendants made statements
in the 2426 Action’s amended verified complaint that abused the privilege and such statements
were not made in good faith and were made with malice towards Rosen Law LLC and Gary
Rosen, Esq.
64. It is respectfully submitted that Defendants permitted 2426 Ocean Avenue LLC to
file the amended verified complaint which was an abuse wherein absolute privilege is not
conferred on Defendants.
65. The 2426 Action is a sham and was commenced because Defendants Mehram
Malekan and Shahram Mobasser, mistakenly thought that Plaintiff Rosen Law LLC and Plaintiff
Gary Rosen, Esq. prepared and filed the Tax Abatement for 2426 Ocean LLC, which Plaintiff
Rosen Law LLC and Plaintiff Gary Rosen, Esq. did not do.
66. The 2426 Action was maintained as a sham in order try to coerce Plaintiff Rosen
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Law LLC and Plaintiff Gary Rosen, Esq. to unjustifiably pay monies to 2426 Ocean Avenue
LLC.
67. When Defendants Mehram Malekan and Shahram Mobasser were advised
through their counsel that there was an error in their complaint, and that it was Yehuda Moseson
and Moseson & Associates Corp. who prepared the Tax Abatement and real estate tax opinion
letter contained in the condominium offering plan, and not Plaintiff Rosen Law LLC and
Plaintiff Gary Rosen, Esq., instead of discontinuing the 2426 Action against Plaintiff Rosen Law
LLC and Plaintiff Gary Rosen, Esq., Defendants added Yehuda Moseson and Moseson &
Associates Corp. to the 2426 Action and did not discontinue against Plaintiff Rosen Law LLC
and Plaintiff Gary Rosen, Esq.
68. The contents of the 2426 Action complaint were based on the erroneous
information and mistaken belief that Plaintiff Rosen Law LLC and Plaintiff Gary Rosen, Esq.
prepared the Tax Abatement or provided facts for inclusion of the condominium offering plan
which Plaintiff Rosen Law LLC and Plaintiff Gary Rosen, Esq. did not do, but rather only
Yehuda Moseson and Moseson & Associates Corp. did.
69. The allegations in the amended complaint contain falsehoods and defamatory
statements against Plaintiff Rosen Law LLC and Plaintiff Gary Rosen, Esq. because there is
nothing contained in the condominium offering plan regarding the Tax Abatement, that were
based on the work product of Plaintiff Rosen Law LLC and Plaintiff Gary Rosen, Esq., but were
rather based solely upon the entity and person who prepared and filed the Tax Abatement and
issued the real estate tax opinion letter, Yehuda Moseson and Moseson & Associates Corp.
70. The statements made by Defendant Mehran Malekan, Defendant Shahram
Mobasser and Defendant Ebrahim Shokrian as members of 2426 Ocean LLC in the 2426 Action
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and the amended complaint therein, were made to defame Plaintiff Rosen Law LLC and Plaintiff
Gary Rosen, knowing that Plaintiff Rosen Law LLC and Plaintiff Gary Rosen had nothing to do
with the Tax Abatement and real estate tax opinion letter for The 2424 Ocean Condominium and
the Defendants knew that the only party who was hired by them to prepare the application for
and obtain a tax abatement under Section 421-a of the Real Property Tax Law was Moseson &
Associates Corp.
71. In Defendants’ attempt to “shake down” and seek money from Plaintiff Rosen
Law LLC and Plaintiff Gary Rosen, Defendants herein directed 2426 Ocean LLC to commence
the 2426 Action in bad faith and with malice, in their hope that Plaintiff Rosen Law LLC and
Plaintiff Gary Rosen capitulate to their demands in the complaint to pay money to 2426 Ocean
LLC for something that Plaintiff Rosen Law LLC and Plaintiff Gary Rosen undeniably had
nothing to do with.
72. The 2426 Action is akin to suing a defendant for crashing his or her car into the
Plaintiff’s car, but that the Defendant was home sleeping when the crash occurred causing
plaintiff to suffer injuries.
73. This is a case where the Defendants herein caused 2426 Ocean LLC to sue
Plaintiff Rosen Law LLC and Plaintiff Gary Rosen without any basis in law and without merit
and only in bad faith.
74. In Napoli v. Bern, 2018 NYLJ LEXIS 2870, 17-18 (Supreme Ct. New York Co.,
2018)., the Court stated that “…. Statements
Preview
FILED: NASSAU COUNTY CLERK 01/21/2020 09:30 PM INDEX NO. 616386/2019 NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 01/21/2020 Index No.: 616386/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU AFFIRMATION OF -------------------------------------------------------------------X GARY ROSEN, ESQ. IN ROSEN LAW LLC and OPPOSITION OF GARY ROSEN, DEFENDANT MEHRAN MALEKAN’S Plaintiffs, MOTION TO DISMISS -against- (motion sequence # 1) And SHAHRAM MOBASSER MEHRAN MALEKAN, and DEFENDANT EBRAHIM EBRAHIM SHOKRIAN, SHOKRIAN’S MOTION TO DISMISS Defendants. (motion sequence # 2) -------------------------------------------------------------------X Gary Rosen, Esq. an attorney duly admitted to practice law in the State of New York affirms under penalties of perjury that: 1. I am the attorney for Plaintiffs and I am an individual Plaintiff in the instant action. 2. I am fully familiar with the facts and circumstances as set forth herein. 3. There are six (6) causes of action set forth in the Complaint: A. The First Cause of Action is for Fraud; B. The Second Cause of Action is for Injurious Falsehood; C. The Third Cause of Action is for Prima Facie Tort; D. The Fourth Cause of Action is for Civil Conspiracy; E. The Fifth Cause of Action is for Aiding and Abetting Fraud; and F. The Sixth Cause of Action is for Defamation. 4. This affirmation is submitted in opposition to Defendant Mehran Malekan’s motion to dismiss and Defendant Ebrahim Shokrian’s motion to dismiss. 5. Defendants herein are members of 2426 Ocean LLC (See NYSCEF Doc. No. 8 1 of 23 FILED: NASSAU COUNTY CLERK 01/21/2020 09:30 PM INDEX NO. 616386/2019 NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 01/21/2020 wherein Defendant Mehran Malekan states in his affidavit that “I am a member of 2426 Ocean Avenue LLC”. 6. There is no affidavit submitted by Defendant Ebrahim Shokrian in support of Defendant Ebrahim Shokrian’s motion to dismiss. 7. Defendant Ebrahim Shokrian’s attorney, Matin Emouna, Esq. has submitted an affirmation (NYS CEF Doc. 11) in which he states in paragraph “4” that “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), and not by Ebrahim Shokrian…”. There is no affidavit from Defendant Ebrahim Shokrian stating that he does not own any interest in 2426 Ocean Avenue LLC or when his ownership ceased, and whether he made the decision to commence the 2426 Action on behalf of 2426 Ocean LLC. 8. As members of 2426 Ocean LLC, they made statements in the complaint (Exhibit “1”) and in the amended complaint (Exhibit “2”) in the 2426 Action. 9. Defendants herein, as members of 2426 Ocean LLC, made statements which were not in good faith and were made with malice. 10. Inasmuch as the complaint in this action sufficiently alleges the required elements for the six (6) different causes of action, dismissal based on the affirmation of Jonathan M. Goidel, Esq. and the affidavit of Mehran Malekan are insufficient to dismiss the six (6) causes of action set forth in the complaint. 11. The 2426 Action and the allegations in the amended complaint therein is a sham and while casting blame on Plaintiff Rosen Law LLC and Plaintiff Gary Rosen herein, such blame is baseless and without merit and Defendants know that there was no merit to commence 2 of 23 FILED: NASSAU COUNTY CLERK 01/21/2020 09:30 PM INDEX NO. 616386/2019 NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 01/21/2020 the 2426 Action against Plaintiff Rosen Law LLC and Plaintiff Gary Rosen and only did so in an attempt to coerce Plaintiff Rosen Law LLC and Plaintiff Gary Rosen to pay money to 2426 Ocean LLC to settle the 2426 Action. 12. The undeniable fact is that Defendant Mehran Malekan stated in paragraph “8” of his affidavit (NYS CEF Doc. No. 8), that “… shortly after closing on the purchase of a unit in the building, one of the purchasers, an attorney, noticed a misstatement at page 33 of the Plan, which set forth the amount of time a so-called 421(a) tax abatement would last if obtained”. 13. Page 33 of the condominium offering plan for The 2424 Ocean Condominium states that: “The Condominium may be eligible for partial tax exemption benefits under Section 421-a of the Real Property Tax Law. An application has been filed with The City of New York Department of Housing Preservation and Development, but has not yet been acted upon. It is possible that the benefits will not be obtained before the closing of the first Unit and there is no guaranty that benefits will be granted to the property. The Sponsor will use its best efforts to obtain 421-a tax benefits. The Sponsor must submit a final application for 421-a benefits within ninety (90) days from the issuance of the Temporary Certificate of Occupancy or Permanent Certificate of Occupancy, whichever is issued first. It is possible that the benefits will not be obtained before the Closing of the first Unit and there is no guaranty that benefits will be granted to the property. The Sponsor will use its best efforts to obtain 421-a tax benefits. The tax exemption benefits is a diminishing benefit and will terminate after fifteen (15) years. A Preliminary Certificate of Eligibility has been and a copy is included on page xxx of the offering plan. Pursuant to N.Y. Real Property Tax Law §421-a(7)(a)(ii), certain properties within the City of New York that apply for partial tax exemption benefits under Section 421-a of the Real Property Tax Law are located within a geographic exclusion area. Properties within the geographic exclusion area are required to provide affordable housing in exchange for receiving 421-a tax benefits. In the geographic exclusion areas, twenty percent (20%) of the units must be for affordable housing. Properties in the geographic exclusion area are required to have not less than twenty percent of the units, upon the initial rental or sale of the units and upon all subsequent rentals of the units after a vacancy, be affordable to and occupied or available for occupancy by individuals or families whose incomes at the time of 3 of 23 FILED: NASSAU COUNTY CLERK 01/21/2020 09:30 PM INDEX NO. 616386/2019 NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 01/21/2020 initial occupancy do not exceed sixty percent of the area median incomes adjusted for family size. The 2424 Ocean Condominium is NOT located within a geographic exclusion area and therefore, the 421-a rules as applicable to the geographic exclusion area do not apply and there is no requirement that twenty percent (20%) of the units be for affordable housing. N.Y. Real Property Tax Law §421-a(8)(b) requires that building service employees must be paid at a prevailing wage for the duration of the building’s tax exemption. However, pursuant to N.Y. Real Property Tax Law §421-a(8)(c)(i), the 2424 Ocean Condominium is exempt from the prevailing wage requirement as the building contains fewer than fifty residential units (N.Y. Real Property Tax Law §421-a(8)(c)(i)). The Sponsor intends that the building shall be exempted from the statutory obligations to register the units as rent-stabilized by reason of its condominium status pursuant to N.Y. Real Property Tax Law §421-a(2)(f). If prior to consummation of the condominium plan sponsor rents any residential unit (or portion thereof), to any person other than an interim lessee, sponsor is obligated to abandon the offering plan in accordance with the provisions set forth in 13 NYCRR §§ 20.1(1)(2) and 20.5(g). 14. Special Risk # 47 in the Condominium Offering Plan states that: “47. NO GUARANTY AS TO 421-A TAX EXEMPTION BENEFITS. In no event will Sponsor, Sponsor’s counsel, Sponsor’s special tax counsel, Sponsor’s Real Estate Tax Consultant, Selling Agent, or any Offeror hereunder be liable to any Purchaser or person, nor will any Purchaser have the right to rescind his Purchase Agreement in the event Section 421-a benefits are not implemented or if a Final Certificate of Eligibility is not issued, or in the event the date of implementation or amount or duration of such benefit and the resulting taxes differ from those projected herein.” 15. Page “32” of the Condominium Offering Plan states that “…. The projection and estimates of the Real Estate Taxes and Assessed Valuations as used in this Offering Plan that will be payable for each of the Units during the projected First Year of Condominium Operations is based upon an opinion letter prepared by Moseson & 4 of 23 FILED: NASSAU COUNTY CLERK 01/21/2020 09:30 PM INDEX NO. 616386/2019 NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 01/21/2020 Associates Corp., 769 Empire Avenue, Far Rockaway, New York 11691.” THE VARIOUS LAWSUITS 16. This action was commenced because Defendant Mehran Malekan, Defendant Shahram Mobasser and Defendant Ebrahim Shokrian are the sole members of 2426 Ocean LLC, a New York limited liability company, which entity commenced and continued to maintain a lawsuit, in bad faith and with malice, against Plaintiffs herein. The said lawsuit was initially commenced on July 17, 2019 by 2426 Ocean LLC in Supreme Court, Kings County, and which was recently transferred to this Supreme Court, Nassau County under Index No. 617430/2019 and assigned to Justice Steinman (2426 Ocean LLC v. Gary Rosen, Esq., Rosen Law LLC, Yehuda Moseson, and Moseson & Associates Corp. (Index No. 617430/2019) (the “2426 Action”). 17. For some background, while the 2426 Action is assigned to Justice Steinman, this action is assigned to Justice Libert and there are two other relevant lawsuits as set forth below assigned to Justice Driscoll. 18. There is a proceeding entitled by Ebrahim Shokrian v. Shahram Mobasser and Mehran Meleken and 2426 Ocean Avenue LLC, Index No. 613688/2017 before Justice Driscoll for dissolution of 2426 Ocean Avenue LLC. 19. There is an action entitled by Mehran Meleken v. Ebrahim Shokrian, Shahram Mobasser and 2426 Ocean Avenue LLC, Index No. 654928/2017 before Justice Driscoll for breach of contract and unjust enrichment. 20. The defendants herein have had their disputes with each other, and sued each other, and negligently, and in bad faith and with malice, dragged in Rosen Law LLC and Gary 5 of 23 FILED: NASSAU COUNTY CLERK 01/21/2020 09:30 PM INDEX NO. 616386/2019 NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 01/21/2020 Rosen, Esq. into their “partner” disputes and defamed and damaged the reputation of Rosen Law LLC and Gary Rosen, Esq. with no legitimate basis for doing so. The defendants herein have specifically and knowingly made materially false statements in the complaint and amended complaint in the 2426 Action regarding Rosen Law LLC and Gary Rosen, Esq. regarding a tax abatement which Rosen Law LLC and Gary Rosen, Esq. had nothing to do with for The 2424 Ocean Condominium. 21. Due to their bad faith and malice and mal-intent, Defendant Mehran Malekan, Defendant Shahram Mobasser and Defendant Ebrahim Shokrian have damaged Plaintiff Rosen Law LLC and Plaintiff Gary Rosen. 22. Plaintiffs herein have a right under the law to sue Defendant Mehran Malekan, Defendant Shahram Mobasser and Defendant Ebrahim Shokrian for the statements made by them in the amended complaint in the 2426 Action, which statements are not protected by absolute privilege, as full discussed below. 23. This is a case where the Defendants can, and should be held accountable, for their bad faith and malice in commencing and maintaining the 2426 Action against Rosen Law LLC and Gary Rosen, Esq. 24. By being sued without any legitimate basis, Defendants herein caused damages to the reputation of Rosen Law LLC and Gary Rosen, Esq. 25. The law is clear that a party cannot just say anything that they want to say in a complaint and then claim that they are protected by absolute privilege. 26. As discussed below, the statements made by Defendants in the amended complaint in the 2426 Action are not protected by absolute privilege. 27. Rosen Law LLC and Gary Rosen, Esq. has built a good and quality reputation as 6 of 23 FILED: NASSAU COUNTY CLERK 01/21/2020 09:30 PM INDEX NO. 616386/2019 NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 01/21/2020 attorneys in the real estate industry over a period of approximately twenty (20) years, and the false allegations against Rosen Law LLC and Gary Rosen, Esq. set forth in the amended complaint in the 2426 Action are stated by Defendants with bad intent, malice and negligently made to have caused Rosen Law LLC and Gary Rosen, Esq. harm, for which the six (6) causes of action alleged in the complaint in this action are against the Defendants. BACKGROUND 28. 2426 Ocean LLC developed a 12 unit residential condominium and 1 commercial condominium building at 2424 Ocean Avenue, Brooklyn, New York. 29. 2426 Ocean LLC’s member, Defendant Ebrahim Shokrian hired Plaintiff Rosen Law LLC to prepare a condominium offering plan for The 2424 Ocean Condominium. 30. Neither 2426 Ocean LLC, nor Defendant Mehran Malekan or Defendant Shahram Mobasser hired Rosen Law LLC and Gary Rosen, Esq. for any purpose, and there was no privity between 2426 Ocean LLC, Defendant Mehran Malekan and/or Defendant Shahram Mobasser, on the one hand, and Plaintiff Rosen Law LLC and Plaintiff Gary Rosen, Esq., on the other hand. 31. Plaintiff Rosen Law LLC and/or Plaintiff Gary Rosen, Esq. were not hired to prepare or file any application for a real estate tax abatement for The 2424 Ocean Condominium. 32. It is undisputable that 2426 Ocean LLC hired Yehuda Moseson and Moseson & Associates Corp. to prepare an application for a tax abatement for The 2424 Ocean Condominium under Section 421-a of the Real Property Tax Law (the “Tax Abatement”). 33. Defendants admit in the 2426 Action’s amended verified complaint that Plaintiff retained the professional services of defendants Yehuda Moseson and Moseson & Associates, Corp. to “investigate, advise and draft an opinion letter…. Regarding the applicability of the City of New York’s program for partial real estate tax exemption under Section 421-a of the Real 7 of 23 FILED: NASSAU COUNTY CLERK 01/21/2020 09:30 PM INDEX NO. 616386/2019 NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 01/21/2020 Property Tax Law and the procedure therefore for the purposes of filing and amending the Offering Plan for the Property” (See paragraph “25” of the amended verified complaint in the 2426 Action – Exhibit “2”). 34. The only party responsible for filing for the Tax Abatement and issuing an opinion letter was Yehuda Moseson and Moseson & Associates Corp. 35. Plaintiff Rosen Law LLC and Plaintiff Gary Rosen had nothing to do with the filing of or obtaining the Tax Abatement for 2426 Ocean LLC or the Defendants herein, which filing of the Tax Abatement and the issuance of the opinion letter by Yehuda Moseson and Moseson & Associates Corp. is the sole basis for the 2426 Action. 36. A buyer of a condominium unit complained to the New York State Department of Law, Office of the Attorney General, that the Tax Abatement should have been for 15 years from the date that the buyer purchased his condominium unit. 37. Whatever the time frame regarding the duration of the Tax Abatement was, it was only Yehuda Moseson, and Moseson & Associates Corp. that prepared the application for the Tax Abatement for submission to the New York City Department of Housing Preservation and Development and only them, Yehuda Moseson and Moseson & Associates Corp. who provided an opinion letter contained on pages 125 to 127 of the Condominium Offering Plan (Opinion Letter - Exhibit “3” hereto and Condominium Offering Plan - Exhibit “4” hereto). 38. Yet, although the Defendants at all times knew, or should have known that Rosen Law LLC and Gary Rosen, Esq. had nothing to do with the Tax Abatement, the Defendants herein directed 2426 Ocean Avenue LLC to commence a frivolous and defamatory lawsuit against Plaintiff Rosen Law LLC and Plaintiff Gary Rosen, Esq. for which Defendant Mehran Malekan, Defendant Shahram Mobasser and Defendant Ebrahim Shokrian should be held 8 of 23 FILED: NASSAU COUNTY CLERK 01/21/2020 09:30 PM INDEX NO. 616386/2019 NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 01/21/2020 accountable. 39. Defendants herein, Defendant Mehran Malekan, Defendant Shahram Mobasser and Defendant Ebrahim Shokrian, caused 2426 Ocean LLC to commence the 2426 Action against Plaintiff Rosen Law LLC and Plaintiff Gary Rosen, in bad faith and with malice. Defendant Mehran Malekan stated in his affidavit submitted in this action (Paragraph “8” – NYS CEF Doc. 8” that “… shortly after closing on the purchase of a unit in the building, one of the purchasers, an attorney, noticed a misstatement at page 33 of the Plan, which set forth the amount of time a so-called 421(a) tax abatement would last if obtained.” 40. There was no misstatement at page 33 of the condominium offering plan and Defendants herein knew that and know that. 41. Defendants and/or 2426 Ocean LLC hired Yehuda Moseson and Moseson & Associates Corp. to prepare and file the Tax Abatement and hired Yehuda Moseson and Moseson & Associates Corp. to provide an opinion letter regarding the Tax Abatement. 42. Page 33 of the Condominium Offering Plan is annexed hereto as Exhibit “5”, but must be taken in context with the Real Estate Tax Opinion Letter prepared by Yehuda Moseson, and Moseson & Associates Corp. - Exhibit “3”. 43. When Defendant Mehran Malekan, Defendant Shahram Mobasser and Defendant Ebrahim Shokrian directed 2426 Ocean LLC to commence the 2426 Action against Plaintiff Rosen Law LLC and Plaintiff Gary Rosen, they and their attorneys erred because they did not realize that it was Yehuda Moseson and Moseson & Associates Corp. that handled and was 100% responsible for the preparation of and filing of the Tax Abatement. Plaintiff Rosen Law LLC and Plaintiff Gary Rosen only prepared the condominium offering plan, and used the opinion letter furnished by 2426 Ocean LLC which they obtained from Yehuda Moseson and 9 of 23 FILED: NASSAU COUNTY CLERK 01/21/2020 09:30 PM INDEX NO. 616386/2019 NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 01/21/2020 Moseson & Associates Corp. for inclusion into the Condominium Offering Plan. 44. The 2426 Action was commenced on July 17, 2019 under Index No. 515712/2019 in Supreme Court, Kings County, which was transferred at the request of Plaintiffs herein to Supreme Court, Nassau County, now Index No. 617430/2019 and assigned to Justice Steinman. 45. When the 2426 Action was commenced, the only defendants were “Gary Rosen, Esq. and Rosen Law, LLC”. 46. Thereafter, I had a telephone conversation with Defendant Mehran Malekan’s attorney, Jonathan M. Goidel, Esq., and I told him that he did not realize that neither I, nor Rosen Law LLC prepared the application for the Tax Abatement under Section 421-a of the Real Property Tax Law, neither I, nor Rosen Law LLC issued a real estate tax opinion letter, and neither I, nor Rosen Law LLC had anything to do with the Tax Abatement for The 2424 Ocean Condominium. 47. I told Jonathan M. Goidel, Esq. that I prepared the condominium offering plan but that Yehuda Moseson, and Moseson & Associates Corp. prepared the application for the Tax Abatement under Section 421-a of the Real Property Tax Law for The 2424 Ocean Condominium and filed the application with the New York City Department of Housing Preservation and Development and Yehuda Moseson and Moseson & Associates Corp. provided the real estate tax opinion letter to 2426 Ocean LLC. 48. I told and showed Defendant Mehran Malekan’s attorney, Jonathan M. Goidel, Esq. that the condominium offering plan actually contained the opinion letter from Yehuda Moseson, and Moseson & Associates Corp. on pages 125 to 127 of the Condominium Offering Plan, which Yehuda Moseson, and Moseson & Associates Corp. provided to 2426 Ocean LLC and which detailed all of the facts and opinions of Yehuda Moseson, and Moseson & Associates 10 of 23 FILED: NASSAU COUNTY CLERK 01/21/2020 09:30 PM INDEX NO. 616386/2019 NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 01/21/2020 Corp. regarding the Tax Abatement under Section 421-a of the Real Property Tax Law for The 2424 Ocean Condominium. 49. When I showed Jonathan M. Goidel, Esq. that he and 2426 Ocean LLC erred by suing the wrong parties, by suing Rosen Law LLC and Gary Rosen, Esq. instead of suing Yehuda Moseson, and Moseson & Associates Corp., Mr. Goidel asked “Don’t you have malpractice insurance you can give this to”. I responded, that I had nothing to do with the Tax Abatement under Section 421-a of the Real Property Tax Law for The 2424 Ocean Condominium and you should be discontinuing the action against Rosen Law LLC and Gary Rosen, that the contents of the complaint was defamatory, injurious to my business and reputation, and that if his clients have or had an issue regarding the Tax Abatement, the parties responsible, if they have any liability, would be Yehuda Moseson, and Moseson & Associates Corp., not Rosen Law LLC and Gary Rosen, Esq. 50. The 2426 Action was commenced in bad faith and with malice, and continued and maintained in bad faith and with malice, when the Defendants herein knew that only Yehuda Moseson and Moseson & Associates Corp. had prepared, filed and been responsible for the Tax Abatement under Section 421-a of the Real Property Tax Law for The 2424 Ocean Condominium and issued the opinion letter regarding the duration of the Tax Abatement. 51. On October 21, 2019, 2426 Ocean Avenue LLC, at the direction of Defendants herein filed an amended complaint in the 2426 Action (Exhibit “2”), naming Yehuda Moseson, and Moseson & Associates Corp. as defendants, but refusing to discontinue the 2426 Action against Rosen Law LLC and Gary Rosen, Esq. 52. Defendants are keeping Plaintiff Rosen Law LLC and Plaintiff Gary Rosen, Esq. as defendants in the 2426 Action only in an attempt to shake down Plaintiff Rosen Law LLC and 11 of 23 FILED: NASSAU COUNTY CLERK 01/21/2020 09:30 PM INDEX NO. 616386/2019 NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 01/21/2020 Plaintiff Gary Rosen, Esq. for money, without any reason or justification or valid basis in law or in equity, for Plaintiff Rosen Law LLC and Plaintiff Gary Rosen, Esq. having to pay any money to 2426 Ocean LLC. 53. In Leon v Martinez, 84 NY2d 83, 87-88 (1994), the Court of Appeals stated that “On a motion to dismiss pursuant to CPLR 3211, the pleading is to be afforded a liberal construction (see, CPLR 3026). We accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory (Morone v Morone, 50 NY2d 481, 484; Rovello v Orofino Realty Co., 40 NY2d 633, 634). Under CPLR 3211 (a) (1), a dismissal is warranted only if the documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law (see, e.g., Heaney v Purdy, 29 NY2d 157). In assessing a motion under CPLR 3211 (a) (7), however, a court may freely consider affidavits submitted by the plaintiff to remedy any defects in the complaint (Rovello v Orofino Realty Co., supra, at 635) and "the criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one" (Guggenheimer v Ginzburg, 43 NY2d 268, 275; Rovello v Orofino Realty Co., supra, at 636). In light of these principles, we agree with the majority at the Appellate Division that the instant complaint and supporting affidavit, although inartfully drafted, adequately alleged for pleading survival purposes that the instrument prepared by Futterman was intended by all parties to effectuate a present assignment to plaintiffs of interests in the future settlement.” 54. It is respectfully submitted that the Plaintiffs have cognizable causes of action against the Defendants and such cognizable causes of action are stated in the complaint. 55. It is respectfully submitted that based on the four corners of the Complaint, there are six cognizable causes of action against the Defendants. 12 of 23 FILED: NASSAU COUNTY CLERK 01/21/2020 09:30 PM INDEX NO. 616386/2019 NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 01/21/2020 56. The complaint in this action is pled with specificity and details to give the Court and all of the defendants ample notice of why they are being sued for Fraud, Injurious Falsehood, Prima Facie Tort, Civil Conspiracy, Aiding and Abetting Fraud and Defamation. 57. Contrary to the claims by Defendants in their motion, this action is not in retaliation for the commencement of any action by any other party, but this action is brought specifically because of the slanderous and defamatory allegations in the complaint in the 2426 Action. Under the law, it is respectfully submitted that there is merit and cognizable claims to this action and the Complaint as written, states specificity and contains all of the elements required to state cognizable causes of action against the Defendants. There are independent cognizable and viable causes of action. This action was commenced because of the bad faith and malice of the Defendants in causing their company, 2426 Ocean LLC to commence and maintain the 2426 Action. DEFENDANTS ARE NOT ENTITLED TO BE SHIELDED BY ABSOLUTE PRIVILEGE OF STATEMENTS MADE IN THE COMPLAINT IN THE 2426 ACTION. 58. Defendants claim that they are entitled to absolute privilege and in effect can say anything that they want to say in a complaint. That is not the law in New York State. 59. Defendants in this action are not entitled to an absolute privilege of statements made by them in the complaint and the amended complaint in the action entitled 2426 Ocean Avenue, LLC v. Gary Rosen, Esq. and Rosen Law, LLC, Yehuda Moseson, and Moseson & Associates Corp., Index No. 617430/2019, Supreme Court, Nassau County (the “2426 Action”) which forms the basis for the allegations in the complaint in this action. 60. Absolute privilege is only afforded to a party in a lawsuit if the statements are pertinent to the subject matter of the lawsuit ...[and] are made in good faith and without 13 of 23 FILED: NASSAU COUNTY CLERK 01/21/2020 09:30 PM INDEX NO. 616386/2019 NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 01/21/2020 malice. Ginarte Gallardo Gonzalez & Winograd, LLP v Schwitzer, 2019 NY Slip Op 33275[U], 21 (Supreme Ct., N.Y. Co. 2019) citing Lacher v Engel, 33 AD3d 10, 13, 817 N.Y.S.2d 37 (1st Dept. 2006). 61. In Ginarte Gallardo Gonzalez, supra, the Court stated that “this (absolute) ‘privilege is capable of abuse and will not be conferred where the underlying lawsuit was a sham action brought solely to defame" citing Flomenhaft v Finkelstein, 127 AD3d 634, 638, 8 N.Y.S.3d 161 (1st Dept. 2015). 62. “The absolute privilege that attaches to statements made in the course of legal proceedings may be lost if abused. More specifically, the privilege is limited to statements that are not only pertinent to the subject matter of the lawsuit but are made in good faith and without malice.” Lacher v Engel, 33 AD3d 10, 11 (1st Dept 2006). 63. It is certainly an issue of fact and properly plead that Defendants made statements in the 2426 Action’s amended verified complaint that abused the privilege and such statements were not made in good faith and were made with malice towards Rosen Law LLC and Gary Rosen, Esq. 64. It is respectfully submitted that Defendants permitted 2426 Ocean Avenue LLC to file the amended verified complaint which was an abuse wherein absolute privilege is not conferred on Defendants. 65. The 2426 Action is a sham and was commenced because Defendants Mehram Malekan and Shahram Mobasser, mistakenly thought that Plaintiff Rosen Law LLC and Plaintiff Gary Rosen, Esq. prepared and filed the Tax Abatement for 2426 Ocean LLC, which Plaintiff Rosen Law LLC and Plaintiff Gary Rosen, Esq. did not do. 66. The 2426 Action was maintained as a sham in order try to coerce Plaintiff Rosen 14 of 23 FILED: NASSAU COUNTY CLERK 01/21/2020 09:30 PM INDEX NO. 616386/2019 NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 01/21/2020 Law LLC and Plaintiff Gary Rosen, Esq. to unjustifiably pay monies to 2426 Ocean Avenue LLC. 67. When Defendants Mehram Malekan and Shahram Mobasser were advised through their counsel that there was an error in their complaint, and that it was Yehuda Moseson and Moseson & Associates Corp. who prepared the Tax Abatement and real estate tax opinion letter contained in the condominium offering plan, and not Plaintiff Rosen Law LLC and Plaintiff Gary Rosen, Esq., instead of discontinuing the 2426 Action against Plaintiff Rosen Law LLC and Plaintiff Gary Rosen, Esq., Defendants added Yehuda Moseson and Moseson & Associates Corp. to the 2426 Action and did not discontinue against Plaintiff Rosen Law LLC and Plaintiff Gary Rosen, Esq. 68. The contents of the 2426 Action complaint were based on the erroneous information and mistaken belief that Plaintiff Rosen Law LLC and Plaintiff Gary Rosen, Esq. prepared the Tax Abatement or provided facts for inclusion of the condominium offering plan which Plaintiff Rosen Law LLC and Plaintiff Gary Rosen, Esq. did not do, but rather only Yehuda Moseson and Moseson & Associates Corp. did. 69. The allegations in the amended complaint contain falsehoods and defamatory statements against Plaintiff Rosen Law LLC and Plaintiff Gary Rosen, Esq. because there is nothing contained in the condominium offering plan regarding the Tax Abatement, that were based on the work product of Plaintiff Rosen Law LLC and Plaintiff Gary Rosen, Esq., but were rather based solely upon the entity and person who prepared and filed the Tax Abatement and issued the real estate tax opinion letter, Yehuda Moseson and Moseson & Associates Corp. 70. The statements made by Defendant Mehran Malekan, Defendant Shahram Mobasser and Defendant Ebrahim Shokrian as members of 2426 Ocean LLC in the 2426 Action 15 of 23 FILED: NASSAU COUNTY CLERK 01/21/2020 09:30 PM INDEX NO. 616386/2019 NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 01/21/2020 and the amended complaint therein, were made to defame Plaintiff Rosen Law LLC and Plaintiff Gary Rosen, knowing that Plaintiff Rosen Law LLC and Plaintiff Gary Rosen had nothing to do with the Tax Abatement and real estate tax opinion letter for The 2424 Ocean Condominium and the Defendants knew that the only party who was hired by them to prepare the application for and obtain a tax abatement under Section 421-a of the Real Property Tax Law was Moseson & Associates Corp. 71. In Defendants’ attempt to “shake down” and seek money from Plaintiff Rosen Law LLC and Plaintiff Gary Rosen, Defendants herein directed 2426 Ocean LLC to commence the 2426 Action in bad faith and with malice, in their hope that Plaintiff Rosen Law LLC and Plaintiff Gary Rosen capitulate to their demands in the complaint to pay money to 2426 Ocean LLC for something that Plaintiff Rosen Law LLC and Plaintiff Gary Rosen undeniably had nothing to do with. 72. The 2426 Action is akin to suing a defendant for crashing his or her car into the Plaintiff’s car, but that the Defendant was home sleeping when the crash occurred causing plaintiff to suffer injuries. 73. This is a case where the Defendants herein caused 2426 Ocean LLC to sue Plaintiff Rosen Law LLC and Plaintiff Gary Rosen without any basis in law and without merit and only in bad faith. 74. In Napoli v. Bern, 2018 NYLJ LEXIS 2870, 17-18 (Supreme Ct. New York Co., 2018)., the Court stated that “…. Statements