Preview
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Table of Contents
TABLE OF AUTHORITIES ............................................................................... ii
INTRODUCTION AND SUMMARY OF THE ARGUMENT ........................... 7
THE FACTS ...................................................................................................... 10
ARGUMENT ..................................................................................................... 16
POINT I
DEFENTANTS’ MOTION FOR REARGUMENT SHOULD BE GRANTED
BECAUSE THE COURT OVERLOOKED ADMISSIBLE EVIDENCE
SHOWING THAT PLAINTIFF CANNOT PROVE CAUSATION OR
DAMAGES. ..................................................................................................... 16
A. PLAINTIFF CAN NOT ESTABLISH THAT THE CONDUCT OF
DEFENDANTS WAS THE CAUSE OF ANY INJURY....................... 16
B. PLAINTIFF CANNOT PROVE ANY DAMAGES. ............................... 18
C. FRIEDMAN CANNOT PROVE DEFAMATION PER SE .................... 20
POINT II
DEFENDANTS’ MOTION FOR RENEWAL SHOULD BE GRANTED AND
ON RENEWAL. PLAINTIFF’S CLAIMS OF SLANDER, LIBEL, PRIMA
FACIE TORT, AND ABUSE OF PROCESS SHOULD BE DISMISSED. ... 26
A. PLAINTIFF’S CLAIMS OF SLANDER, LIBEL, PRIMA FACIE TORT,
AND ABUSE OF PROCESS ARE BARRED BY RES JUDICATA..... 28
CONCLUSION .................................................................................................. 31
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TABLE OF AUTHORITIES
Page(s)
Cases
600 W. 115th St. Corp. v. Von Gutfeld,
80 N.Y.2d 130 (1992) .............................................................................................. 24
Agnant v Shakur,
30 F. Supp. 2d 420 (S.D.N.Y. 1998) ....................................................................... 16
Matter of Allstate Ins. Co. v Liberty Mut. Ins.,
58 A.D.3d 727 (2d Dep’t 2009) ............................................................................... 27
Calle v Zimmerman,
133 A.D.3d 809 (2d Dep’t 2015) ............................................................................. 27
Cardali v Slater,
167 A.D.3d 476 (1st Dep’t 2018) ...................................................................... 21, 25
Castor v Cuevas,
137 A.D.3d 734 (2d Dep’t 2016) ............................................................................. 27
Cook v. Relin,
280 A.D.2d 897 (4th Dep’t 2001) ...................................................................... 22, 26
Cromwell v County of Sac,
94 U.S. 351 (1976) .................................................................................................. 29
D’Agrosa v. Newsday,
158 A.D.2d 229 (2d Dep’t 1990) ....................................................................... 22, 26
Dervisevic v Dervisevic,
89 A.D.3d 785 (2d Dep’t 2011) ............................................................................... 27
Deutsche Bank Trust Co. v Ghaness,
100 A.D.3d 585 (2d Dep’t 2012) ............................................................................. 27
Dillon v City of New York,
261 A.D. 2d 34 (1st Dep’t 1999) ............................................................................. 16
El Jamal v. Weil,
116 A.D.3d 732 (2d Dep’t 2014) ............................................................................. 16
Elias v Massimillo,
2018 N.Y. App. Div. LEXIS 7691 (2d Dep’t 2018) ........................................... 16, 22
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First Nationwide Bank v. Gelt Funding Corp.,
27 F.3d 763 (2d Cir. 1994) ...................................................................................... 18
Flamm v. Am. Ass’n of Univ. Women,
201 F.3d 144 (2d Cir. 2000) .................................................................................... 21
Franklin v Daily Holdings, Inc.,
135 A.D. 3d 87 (1st Dep’t 2015) ............................................................................. 16
Friedman v. Bloomberg L.P.,
884 F.3d 83 (2d Cir. 2017) ...................................................................................... 21
Galasso v Saltzman,
42 A.D. 3d 310 (1st Dep’t 2007) ............................................................................. 16
Gertz v. Robert Welch,
418 U.S. 323 (1974) ................................................................................................ 18
Gonzalez v Vigo Constr. Corp.,
69 A.D.3d 565 (2d Dep’t 2010) ............................................................................... 27
Gordon v Boyd,
96 A.D.3d 719 (2d Dep’t 2012) ............................................................................... 28
Greenbelt Coop. Publ’g Ass’n v. Bresler,
398 U.S. 6 (1970) .................................................................................................... 21
Gross v New York Times Co.,
82 N.Y.2d 146 (1993) ........................................................................................ 20, 24
Harris v Hirsh,
228 A.D.2d 206 (1st Dep’t 1996) ............................................................................ 20
Heaven v McGowan,
40 A.D.3d 583 (2d Dep’t 2007) ............................................................................... 27
Hecht v. Commerce Clearing House, Inc.,
897 F.2d 21 (2d Cir. 1990), cert. denied, 513 U.S. 1079 (1995) ............................ 18
Ideal Steel Supply Corp. v. Anza,
373 F.3d 251 (2d Cir. 2004) .................................................................................... 17
Immuno AG v. Moor-Jankowski,
77 N.Y.2d 235 (1991) ........................................................................................ 22, 24
Joseph v Simmons,
114 A.D.3d 644 (2d Dep’t 2014) ............................................................................. 27
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Matter of Korman v Bellmore Pub. Schools,
62 A.D.3d 882 (2d Dep’t 2009) ............................................................................... 27
Larson v Albany Med. Ctr.,
252 AD2d 936 (3d Dep’t 1998) ......................................................................... 22, 26
Lerner v. Fleet Bank, N.A.,
318 F.3d 113 (2d Cir. 2003) .................................................................................... 18
Letter Carriers v. Austin,
418 U.S. 264 (1974) ................................................................................................ 21
Levinsky’s, Inc. v. Wal-Mart Stores,
127 F.3d 122 (2d Cir. 1997) .................................................................................... 22
Liberman v Gelstein,
80 N.Y. 2d 429 (1992) ....................................................................................... 22, 25
Mallad Constr. Corp. v. Cnty. Fed. Sav. & Loan Ass’n,
32 N.Y.2d 285 (1973) ................................................................................................ 8
Mann v Abel,
10 N.Y.3d 271 (2008), cert denied 555 US 1170 (2009) ........................................ 25
Martin v. Hayes,
105 A.D.3d 1291 (3d Dep’t 2015) ........................................................................... 25
New Hampshire v Maine,
532 U.S. 742 (2001) ................................................................................................ 29
Nolan v State of New York,
158 A.D.3d 186 (1st Dep’t 2018) ...................................................................... 16, 18
Nwauwa v Mamos,
53 AD3d 646 (2008) ................................................................................................ 28
O’Neill v. Oakgrove Constr., Inc.,
71 N.Y.2d 521 (1988) .............................................................................................. 22
Matter of Osorio v Motor Veh. Acc. Indem. Corp.,
112 A.D.3d 831 (2d Dep’t 2013) ............................................................................. 27
Paramount Pictures Corp. v. Allianz Risk Transfer AG,
31 N.Y.3d 64 (2018) .......................................................................................... 29, 30
People v Griffin,
92 A.D.3d 1 (1st Dep’t 2011) ................................................................................... 27
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Phantom Touring, Inc. v. Affiliated Publ’ns,
953 F.2d 724 (1st Cir. 1992) ................................................................................... 21
Ram v Moritt,
205 A.D.2d 516 (2d Dep’t 1994) ............................................................................. 22
Rockwell Capital Partners, Inc. v. HempAmericana, Inc.,
2018 N.Y. LEXIS 3972 (Sup. Ct. New York County September 14,
2018)........................................................................................................................ 20
San Jose v. McWilliams,
284 F.3d 785 (7th Cir. 2002) .................................................................................. 24
Schwelnus v Urological Assoc. of L.I., P.C.,
94 A.D.3d 971 (2d Dep’t 2012) ......................................................................... 10, 28
Simpson v Tommy Hilfiger U.S.A., Inc.,
48 A.D.3d 389 (2d Dep’t 2008) ......................................................................... 10, 28
Steinhilber v Alphonse,
68 N.Y. 2d 283 (1986) ............................................................................................. 21
Stepanov v Dow Jones & Co., Inc.,
120 A.D. 3d 28 (1st Dep’t 2014) ....................................................................... 16, 18
Taylor v. Sturgell,
553 U.S. 880 (2008) ................................................................................................ 29
Thomas H. v Paul B.,
18 N.Y.3d 580 (2012) .............................................................................................. 20
United States v. Brandon,
651 F. Supp. 323 (W.D. Va. 1987) .......................................................................... 25
United States v. Carman,
577 F.2d 556 (5th Cir. 1978) .................................................................................. 25
Vera v Soohoo,
99 A.D.3d 990 (2d Dep’t 2012) ............................................................................... 27
Wachs v. Winter,
569 F. Supp. 1438 (E.D.N.Y. 1983) ........................................................................ 17
Statutes and Rules
18 U.S.C. § 152(8) ........................................................................................................ 24
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United States Constitution, First Amendment .......................................... 9, 18, 21, 24
C.P.L.R. 3212(b) ............................................................................................................. 8
C.P.L.R. Rule 3212(b) .................................................................................................... 8
C.P.L.R. Section 2005 .................................................................................................. 27
CPLR 2221 (e) .......................................................................................................... 9, 28
New York State Constitution ...................................................................................... 22
Restatement [Second] of Judgments § 27 (1982) ........................................................ 29
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU
RUSSELL FRIEDMAN, Index No. 9802-14
Plaintiff,
-v-
MAX FOLKENFLIK, ROBERT W. SEIDEN,
FOLKENFLIK & MCGERITY LLP,
DAVID GRAFF, ANDERSON KILL P.C.,
SEIDEN INVESTIGATIONS & SECURITY
INC., CONFIDENTIAL SECURITY &
INVESTIGATIONS,
Defendants.
MEMORANDUM OF LAW IN SUPPORT OF DEFENDANTS’ CPLR
2221 MOTION FOR REARGUMENT AND RENEWAL OF THEIR
MOTION FOR SUMMARY JUDGMENT
Defendants Folkenflik & McGerity LLP and Max Folkenflik (“Defendants”), by
their attorneys, Folkenflik & McGerity LLP, submit this Memorandum of Law in
Support of their Motion for Rehearing and Renewal of their Motion for Summary
Judgment.
INTRODUCTION AND SUMMARY OF THE ARGUMENT
This is a Motion for Rehearing and Reargument of the denial of Defendants’
Motion for Summary Judgment. This case arises out of the execution of a search
warrant on October 11, 2011, and focuses on allegedly defamatory statements
allegedly made by Defendant Max Folkenflik during that search. In denying
Summary Judgment, the merits of the defamation alleged and the absence of
damages caused by that alleged defamation were not addressed. Instead, the Court
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denied the Motion because it was supported by a sworn affirmation (not an affidavit)
of counsel, Max Folkenflik, a party to the action, reciting certain facts and attaching
admissible exhibits. Although the Court correctly held that “submission of an
affirmation instead of an affidavit was improper, and its contents must be
disregarded…,” see, Decision Denying Summary Judgment, annexed to the Affidavit
of Max Folkenflik as Exhibit H at 2, 1 the Court overlooked the admissible evidence
that was submitted on that Motion.
Under C.P.L.R. 3212(b), a motion for Rehearing and Renewal of Their Motion
for summary judgment “shall be granted if, upon all the papers and proof submitted,
the cause of action or defense shall be established sufficiently to warrant the court as
a matter of law in directing judgment in favor of any party.” C.P.L.R. Rule 3212(b).
“To defeat summary judgment the opponent must present evidentiary facts sufficient
to raise a triable issue of fact, and averments merely stating conclusions, of fact or of
law, are insufficient.” Mallad Constr. Corp. v. Cnty. Fed. Sav. & Loan Ass'n, 32
N.Y.2d 285, 290 (1973).
Even if the text of the prior Affirmation is disregarded, the evidence submitted
was sufficient because there were no damages caused by the alleged wrongful
conduct. Friedman claims that damage resulted from the dissolution of his old firm,
Friedman Harfinest Kraut & Pearlstein, LLP (“FHKP”) many months after the
alleged defamation. Yet he cannot prove any connection between the alleged
1The Exhibits submitted on this Motion are all annexed to the Affidavit of Max Folkenflik, Sworn to
on October 2, 2019. Such Exhibits will be cited as “Exhibit ____, at ____” with appropriate Exhibit and
page designations. The Court Decision below has been designated Exhibit H in order to preserve the
order of Exhibits submitted on the prior motion
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defamatory statements and the dissolution of FHKP. Sworn statements by his former
partners prove that there was no such connection. Even Friedman’s own testimony
shows that none of his partners ever made any statement linking anything
defendants did to the dissolution of FHKP.
Even more strikingly, incontrovertible evidence from Friedman’s sworn
testimony and from his tax returns and other tax documents shows Friedman’s
income did not decrease after the dissolution of FHKP, but instead vastly increased.
Friedman’s own testimony negates any reputational injury arising from the (falsely)
alleged oral defamatory statements claimed to have been made on October 11, 2013.
Were more needed, and it is not, as a matter of law Friedman cannot establish
the alleged defamatory statements were actionable defamation, rather than opinion
or “imaginative expression” and “rhetorical hyperbole” that are protected by the First
Amendment.
Accordingly, the admissible evidence submitted on the Motion, including
Plaintiff’s testimony and tax returns, the testimony of a loyal assistant, settled law
on defamation, and other admissible exhibits (all overlooked by the Court), was all
sufficient to prove Defendants are entitled to judgment as a matter of law.
Reargument should be granted and Summary Judgment should be entered for the
Defendants.
Renewal of the prior Motion is also appropriate to allow Defendants to “cure”
the technical defect by submitting a properly sworn affidavit instead of the
disregarded Affirmation. “CPLR 2221 (e) has not been construed so narrowly as to
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disqualify, as new facts not offered on the prior motion, facts contained in a document
originally rejected for consideration. because the document was not in admissible
form.” Schwelnus v Urological Assoc. of L.I., P.C., 94 A.D.3d 971, 972 (2d Dep’t 2012),
citing Simpson v Tommy Hilfiger U.S.A., Inc., 48 A.D.3d 389 (2d Dep’t 2008).
The Affidavit submitted in support of this Motion presents additional evidence
that provides additional independently sufficient reasons to dismiss Plaintiff’s causes
of action for slander and libel, prima facie tort, and abuse of process based upon
allegations of falsity in the papers seeking the warrant.
As pointed out in the accompanying Affidavit of Max Folkenflik, those causes
of action were resolved adversely to Plaintiff nearly a year before the Complaint in
unsuccessful sanction proceedings brought by Friedman and others. In those
proceedings, the Court that ordered the search found that there were no false
statements made in the papers supporting the issuance of the warrant. Therefore,
those claims are all barred by collateral estoppel and res judicata arising from that
ruling and those findings. Accordingly, Renewal of the prior Motion should be
allowed and for those additional reasons Summary Judgment should be granted.
THE FACTS
This case alleges causes of action for slander and libel, prima facie tort,
and abuse of process arising out of the October 11, 2013 execution by United States
Marshalls of a Court ordered search warrant at Mr. Friedman’s law firm, FHKP, for
information about the assets of Andrew Bressman (“Bressman”). Most of the claims
raised by Friedman in this case were definitively resolved against Friedman, in a
failed sanction proceeding brought by Friedman against the Defendants in this case
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and others, nearly a year before the Complaint in this action was filed. Folkenflik
Aff. ¶10; Exhibit B.1, Friedman Tr. 141:12-24.
Friedman was (and apparently still is) the Trustee of an off-shore asset
protection trust designed to protect (and apparently conceal) Bressman’s assets from
creditors, such as Defendants’ clients. Bressman was the criminally convicted
mastermind of an $80 million fraud, and Defendant’s clients held judgments against
Bressman exceeding $30 million. Folkenflik Aff. ¶ 7, see, Exhibit A at ¶ 136.
The Marshalls knocked and announced their presence to execute a
search warrant and were allowed to enter. A lawyer employed by FHKP was served
with the warrant and the papers on which the warrant was based. Folkenflik Aff.
¶8; see Exhibit A at ¶¶ 40, 49 .
Plaintiff initially claimed in his verified Complaint that he was
slandered and libeled in the course of the application for that warrant to Federal
Judge Edgardo Ramos of the United States District Court for the Southern District
of New York. In unsuccessful sanction proceedings brought by Plaintiff and others
against the Defendants and others, Judge Ramos found that none of the statements
made in the application for the warrant were shown to be false and that Defendant
Folkenflik’ s conduct in seeking the warrant was in “good faith.” Folkenflik Aff. ¶10,
see Exhibit A at ¶¶ 101-109. Plaintiff also claimed in his verified Complaint that
Folkenflik “and/or employees of [Folkenflik & McGerity LLP] and CSI [Defendant
Confidential Security & Investigations]” made oral statements to Friedman’s long
time (and fiercely loyal) assistant, Donna Berlingieri (“Berlingieri”), defaming
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Friedman’s character in general non-specific terms, including the use of the term
“crook” to describe the Plaintiff. Exhibit A ¶ 62. Folkenflik denies those statements
were ever made, Folkenflik Aff. ¶12, and the verified complaint does not even claim
that those statement were made by him, and, instead, asserts the statements were
made by either him “or” someone else. This motion does not seek to resolve that
factual “dispute,” but seeks judgment. As shown below, even if made, those
statements would be non-actionable, and even if made there was no damage or
causation.
FRIEDMAN’S PRIOR FIRM AND ITS DESOLUTION
Friedman together with his partners Steven Harfenist (“Harfenist”), Jonathan
D. Kraut (“Kraut”), and Allen Perlstein (“Perlstein”) were partners in the law firm of
FHKP. FHKP had two distinct practice groups, one led by Friedman that focused on
the collection of fees owed to medical providers under No-Fault automobile insurance
policies (the “No Fault Practice”) and the remaining general practice that was
involved in litigation, land use and commercial real estate, matrimonial, and
corporate transactional matters run by the remaining partners (the “General
Practice”). Exhibit B.2, Friedman Tr. 346:6-23, Exhibit B.1, Friedman Tr. 218:12-17,
Exhibit B.2, Friedman Tr. 290:11-291:13
Mr. Friedman claims that his former firm dissolved in March 2014
allegedly because of the warrant execution, but the facts contradict that speculation.
In fact, the dissolution of FHKP resulted from a dispute about the conduct of
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Friedman’s business. See, Exhibit A at ¶¶ 67-68 and Exhibit D, p.5 ¶ 4; Exhibit B.2,
Friedman Tr. 290:11-291:13, 301:23-302:14.
Friedman admits he did not seek to mitigate his damages by joining
another firm. He did not even consider working for another firm. To use Friedman’s
own language, Friedman “wanted to bet on himself.” Accordingly, instead of seeking
other means of mitigating damages, Friedman immediately formed his own firm,
initially Friedman & Associates LLP and now the Russell Friedman Law Group
(collectively “RGL”), where he is currently the sole equity partner and sole owner.
Exhibit A at ¶69; Exhibit B.1, Friedman Tr. 13:8-14. Recognizing the greater value
of Friedman’s practice than the combined value of the other three partners, Friedman
entered into a settlement agreement, which required him to purchase his share of the
partnership from the other remaining partners. See, Exhibit E.
Friedman’s tax returns and K-1 documents prove that it did not take
long before the start-up lull in business was overcome and his practice began to
thrive. Exhibit F, Exhibit G. In 2014, the year his firm was first formed, Friedman’s
income went down because of the combination of his need to invest in his firm and
because he could not obtain the funding needed to support the massive cash needs
his practice required. Friedman admitted that the reason his business contracted in
2014 was that he “wasn’t able to process the work,” and he made clear that the
inability to “process the work” was solely a result of his decision to invest in himself
and his lack of funds or credit to make that immediately pay off. Exhibit B.1,
Friedman Tr. 176:4-8.
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As Friedman testified: “post breakup, my practice hit the shitter,
because I couldn't get the lines of credit that we had in the other practice, and because
of that I ended up taking a significant hit on the work that I could file and put in.
Just didn't have the cash flow for it.” Exhibit B.1, Friedman Tr. 174:13-175:6
(emphasis added).
Friedman also made clear that this lack of funds and credit had
absolutely nothing to do with the warrant execution or anything Defendants said or
did. Prior to the execution, Friedman had run up a huge debt to the IRS, over
$579,000 by the time of the execution, because of a failure to pay Federal Income tax.
The IRS sought and obtained a judgment for that amount against him. See, Exhibits
B.1 and B.2, Friedman Tr. 174:13-175:6, 280:7-282:16. Yet, by 2015, he was making
more than he did in 2011. In 2016 and 2017, Mr. Friedman made approximately $
million each year, more than double his average in the 2011-2013 period. If one
averages the total earnings for the four full years Friedman has been in practice in
his own firm, it is over % of the average earnings he made in the three prior years.
Folkenflik Aff. ¶ 29.
Friedman admitted he cannot establish a causal connection of any sort
between the warrant execution and the initial drop off in business in 2014 or 2015.
When asked the question: “Are you aware that any of those clients [who sent him less
business than in 2013 than in 2014] were aware of anything that I [Folkenflik] said?”
Friedman admitted: “They didn't know that.” Exhibit B.1, Friedman Tr. 175:17-22.
Similarly, when asked if knowledge of the warrant execution “caused anybody to not
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refer business to you?” Friedman admitted: “Listen, I don't know what – I don't know
what caused them to ultimately do it…” Exhibit B.1, Friedman Tr. 176:4-8. Yet, in
the very same sentence, Friedman did admit that he knew what caused his business
to drop off. It was because he “wasn’t able to process the work.” Id.
The testimony also makes clear that none of the alleged statements that
Friedman claims had defamatory impact were believed to be true by Donna Berlingeri
or, according to Berlingeri, any of the others who she claimed heard those alleged
statements. See, Birlingeri Tr. 54:10-21 (Berlingeri did not belive); 59:20-60:17 (Lupo
did not believe); 60:21-61:19 (Murphy now works for Friedman); 56:20-53:22 (Crowley
never stated she believed).
Ms. Berlingeri believes that Friedman is a phenomenal attorney and a
man of great integrity. Exhibit C, Berlingeri Tr. 32:3-15. She has not talked to
anyone in the legal community about the comments Defendants allegedly made and
cannot recall anyone mentioning his comments to her. Exhibit C, Berlingeri
Tr.113:25-114:12. Friedman believes he has a good reputation, and to the extent that
there may be some who look at him unfavorably, he could not identify any who do so
because of anything Defendants said or did. See, Exhibit Be.1 and B.2, Friedman Tr.
at 47:4-25, 232:14-234:21.
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ARGUMENT
POINT I
DEFENTANTS’ MOTION FOR REARGUMENT SHOULD BE
GRANTED BECAUSE THE COURT OVERLOOKED ADMISSIBLE
EVIDENCE SHOWING THAT PLAINTIFF CANNOT PROVE
CAUSATION OR DAMAGES.
A. PLAINTIFF CAN NOT ESTABLISH THAT THE CONDUCT OF
DEFENDANTS WAS THE CAUSE OF ANY INJURY.
It is axiomatic that in order to establish a claim for defamation, either libel or
slander, the plaintiff must establish that the wrongful and false statement was the
cause of harm to him. Stepanov v Dow Jones & Co., Inc., 120 A.D. 3d 28, 34 (1st Dep’t
2014); Dillon v City of New York, 261 A.D. 2d 34, 38 (1st Dep’t 1999). Absent proof
of defamation per se, and we show below there has been no such showing, a
defamation plaintiff must prove “special damages.” Elias v Massimillo, 2018 N.Y.
App. Div. LEXIS 7691, *1-3 (2d Dep’t 2018); El Jamal v. Weil, 116 A.D.3d 732, 733-
34 (2d Dep’t 2014). Special damages are “the loss of something having economic or
pecuniary value, which must flow directly from the injury to reputation caused by the
defamation and not from the effects of the defamation.” Nolan v State of New York,
158 A.D.3d 186, 191 (1st Dep’t 2018), citing, Franklin v Daily Holdings, Inc., 135 A.D.
3d 87, 93 (1st Dep’t 2015), quoting Agnant v Shakur, 30 F. Supp. 2d 420, 426
(S.D.N.Y. 1998). In the absence of such proof, Summary Judgment must be granted
dismissing the plaintiff’s claims. Id. citing, Galasso v Saltzman, 42 A.D. 3d 310, 311
(1st Dep’t 2007).
Even if the alleged defamation occurred, the admissions by Plaintiff
Friedman as well as the testimony of Friedman’s loyal secretary proves,
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incontrovertibly, that there were no damages “flowing” from any act of, or statements
made by, the Defendants. To the contrary, Friedman is not aware that any of his
clients or anyone in the community was aware of any oral statements made by
Folkenflik. Exhibit B.1, Friedman Tr. 175:17-22, Exhibit C, Berlingeri Tr.113:25-
114:12. Friedman believes he has a good reputation, and to the extent that there may
be some who look at him unfavorably, he could not identify any who do so because of
anything Defendants said or did. See, Exhibit B.1 and B.2, Friedman Tr. At 47:4-25,
232:14-234:21. The testimony shows that anyone who heard the oral statements
allegedly made about Friedman’s character did not believe them. See, Exhibit C.
Berlingeri Tr. 54:10-21 (Berlingeri did not believe); 59:20-60:17 (Lupo did not believe);
60:21-61:19 (Murphy now works for Friedman); 56:20-53:22 (Crowley never stated
she believed). Ms. Berlingeri believes that Friedman is a phenomenal attorney and
a man of great integrity. Exhibit C, Berlingeri Tr. 32:3-15. See, Wachs v. Winter,
569 F. Supp. 1438, 1447-48 (E.D.N.Y. 1983) (absent belief in truth of statements,
there is no compensatory damage to be awarded).
The “flow directly” requirement of “special damages” is clearly a more stringent
standard than “proximate cause.” Even under the lesser proximate cause standard,
Plaintiff cannot prove causation. “Central to the notion of proximate cause is the idea
that a person is not liable to all those who may have been injured by his conduct, but
only those with respect to whom his acts were ‘a substantial factor in the sequence of
responsible causation,’ and whose injury was ‘reasonably foreseeable or anticipated
as a natural consequence.’” Ideal Steel Supply Corp. v. Anza, 373 F.3d 251, 257 (2d
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Cir. 2004), citing Lerner v. Fleet Bank, N.A., 318 F.3d 113, 123 (2d Cir. 2003), First
Nationwide Bank v. Gelt Funding Corp., 27 F.3d 763, 769 (2d Cir. 1994) and Hecht
v. Commerce Clearing House, Inc., 897 F.2d 21, 23-24 (2d Cir. 1990), cert. denied, 513
U.S. 1079 (1995).
Due to the absence of causation between any of the acts of Defendants and any
harm directly flowing from those acts, Plaintiff’s claims against these Defendants
must be dismissed.
B. PLAINTIFF PROFITED FROM THE DISOLUTION OF HIS FIRM AND
THEREFORE CANNOT PROVE ANY DAMAGES.
Had causation been established, Plaintiff would still have to prove actual
damage. Friedman cannot do so. This is true even if libel per se were established.
While for pleading purposes in a claim of libel per se damages are presumed,
Stepanov v Dow Jones & Co., Inc., 120 A.D. 3d 28, 34 (1st Dep’t 2014), when the
plaintiff seeks to obtain an award of damages, as a matter of constitutional law, and
the protections for speech contained in the First Amendment, actual injury must be
proven. Gertz v. Robert Welch, 418 U.S. 323, 349 (1974); Nolan v. State of N.Y., 158
A.D.3d 186, 192 (1st Dep’t).
Other than rank speculation, Friedman cannot show that the breakup
of FHKP was a result of anything Defendants said or did. Exhibit D p. 5 ¶¶ 3-4,
Exhibit B.2, Friedman Tr. 290:11-291:13, Exhibit B.2, Friedman Tr. 301:23-302:14,
Exhibit B.2, Friedman Tr. 301:16-303:10, Exhibit B.1, Friedman Tr. 175:17-178:8
cited. After the breakup, Friedman’s business dropped off in 2014, but that was a
result of the fact that he “wasn’t able to process the work,” resulting from his lack of
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funds or credit to fund the cash flow required by his new business. Exhibit B.1,
Friedman Tr. 176:4-8. As Friedman testified: “post breakup, my practice hit the
shitter, because I couldn't get the lines of credit that we had in the other practice,
and because of that I ended up taking a significant hit on the work that I could file
and put in. Just didn't have the cash flow for it. ….” Exhibit B.1, Friedman Tr.
174:13-175:6 (emphasis added).
Friedman also had bad credit. Prior to the breakup, the IRS obtained a
judgment against Friedman for over $579,000. See, Exhibit B.2, Friedman Tr. 280:7-
282:16. Further, Friedman testified, “I didn't have any -- in my new firm, I didn't
have any operating history and my credit was bad. And I don't think it was -- my
credit was bad generally speaking. It wasn't bad just because of my IRS loss [sic].”
Exhibit B.1, Friedman Tr. 174:13-175:6.
But for that first year, Friedman’s “bet on himself” was a big win for
him; his business was a stupendous success. By 2015 he was making more than he
did in 2011. In 2016 and 2017, Mr. Friedman made approximately $1.1 million each
year, more than double his average in the 2011-2013 period. Exhibit F, Exhibit G;
see Folkenflik Aff. ¶ 29. If you average the total earnings for the four full years
Friedman has been in practice in his own firm, it is over 150% of the average earnings
he made in the three prior years. See, Folkenflik Aff. ¶ 29, and Exhibits G and F.
Friedman does not have any proof that his earnings would have been still higher but
for Defendants’ conduct. He does not and cannot prove that he lost any referrals.
Exhibit B.1, Friedman Tr. 175:17-22, Exhibit B.1, Friedman Tr. 176:4-8. Friedman
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does not claim, and cannot prove, that anything that Defendants said or did caused
any injury to his reputation. See, Exhibit B.1 and B.2, Friedman Tr. At 47:4-25,
232:14-234:21.
Accordingly, Friedman cannot demonstrate that he has been damaged
in the past or will be damaged in the future. For that reason alone, Friedman’s case
must be dismissed.
C. FRIEDMAN CANNOT PROVE DEFAMATION PER SE
Plaintiff has pleaded slander and libel per se. There are four categories of
statements that constitute libel/slander per se: “(1) statements charging plaintiff with
a serious crime; (2) statements that tend to injure plaintiff in her trade, business or
profession; (3) statements that plaintiff has a loathsome disease; or (4) imputing
unchastity to a woman.” Harris v Hirsh, 228 A.D.2d 206 (1st Dep’t 1996); accord,
Rockwell Capital Partners, Inc. v. HempAmericana, Inc., 2018 N.Y. LEXIS 3972, *6-
7 (Sup. Ct. New York County September 14, 2018). In addition to incontrovertible
proof that there were no damages, as we show above, Friedman cannot prove that
any of the alleged statements fall into that category.
As with all claims for defamation, the statements in question must be provably
false. “Generally, only statements of fact can be defamatory because statements of
pure opinion cannot be proven untrue.” (Thomas H. v Paul B., 18 N.Y.3d 580, 584,
(2012); Gross v New York Times Co., 82 N.Y.2d 146, 152-53 (1993) (“Since falsity is a
necessary element of a defamation cause of action and only ‘facts’ are capable of being
proven false, it follows that only statements alleging facts can properly be the subject
of a defamation action.”) (certain internal quotation marks omitted).
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Accordingly, statements of opinion are not actionable. “A ‘pure opinion’ is a
statement of opinion which is accompanied by a recitation of the facts upon which it
is based. An opinion not accompanied by such a factual recitation may, nevertheless,
be ‘pure opinion’ if it does not imply that it is based upon undisclosed facts.”
Steinhilber v Alphonse, 68 N.Y. 2d 283, 289 (1986); Cardali v Slater, 167 A.D.3d 476,
477 (1st Dep’t 2018)(“statement that Cardali was ‘really nothing more than a common
criminal’ is a nonactionable statement of opinion).
Further, a defendant is not liable for “statements that cannot reasonably be
interpreted as stating actual facts about an individual, including statements of
imaginative expression or rhetorical hyperbole.” Friedman v. Bloomberg L.P., 884
F.3d 83, 95-96 (2d Cir. 2017). See Flamm v. Am. Ass'n of Univ. Women, 201 F.3d 144,
150-51 (2d Cir. 2000). First Amendment has protection long been afforded to
“imaginative expression” and “rhetorical hyperbole.” 497 U.S. at 17, 20. “Thus, the
First Amendment prohibits defamation actions based on loose, figurative language
that no reasonable person would believe presented facts.” See, e.g., Letter Carriers
v. Austin, 418 U.S. 264, 284-86 (1974) (holding that use of the word “traitor” to define
a worker who crossed a picket line was not actionable); Greenbelt Coop. Publ'g Ass'n
v. Bresler, 398 U.S. 6, 13-14 (1970) (holding that a newspaper’s characterization of a
developer’s negotiating position as “blackmail” was not defamatory; the word was
simply “an epithet” and, under the circumstances, did not suggest commission of a
crime); Phantom Touring, Inc. v. Affiliated Publ'ns, 953 F.2d 724, 728 (1st Cir. 1992)
(calling a play “a rip-off, a fraud, a scandal, a snake-oil job” was mere hyperbole and,
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thus, constitutionally protected). “The First Amendment’s shielding of figurative
language reflects the reality that exaggeration and non-literal commentary have
become an integral part of social discourse.” Levinsky's, Inc. v. Wal-Mart Stores, 127
F.3d 122, 128 (2d Cir. 1997).
The New York State Constitution goes even further. “[T]he ‘protection afforded
by the guarantees of free press and speech in the New York Constitution is
Preview
FILED: NASSAU COUNTY CLERK 10/03/2019 05:15 PM INDEX NO. 009802/2014 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 10/03/2019 Table of Contents TABLE OF AUTHORITIES ............................................................................... ii INTRODUCTION AND SUMMARY OF THE ARGUMENT ........................... 7 THE FACTS ...................................................................................................... 10 ARGUMENT ..................................................................................................... 16 POINT I DEFENTANTS’ MOTION FOR REARGUMENT SHOULD BE GRANTED BECAUSE THE COURT OVERLOOKED ADMISSIBLE EVIDENCE SHOWING THAT PLAINTIFF CANNOT PROVE CAUSATION OR DAMAGES. ..................................................................................................... 16 A. PLAINTIFF CAN NOT ESTABLISH THAT THE CONDUCT OF DEFENDANTS WAS THE CAUSE OF ANY INJURY....................... 16 B. PLAINTIFF CANNOT PROVE ANY DAMAGES. ............................... 18 C. FRIEDMAN CANNOT PROVE DEFAMATION PER SE .................... 20 POINT II DEFENDANTS’ MOTION FOR RENEWAL SHOULD BE GRANTED AND ON RENEWAL. PLAINTIFF’S CLAIMS OF SLANDER, LIBEL, PRIMA FACIE TORT, AND ABUSE OF PROCESS SHOULD BE DISMISSED. ... 26 A. PLAINTIFF’S CLAIMS OF SLANDER, LIBEL, PRIMA FACIE TORT, AND ABUSE OF PROCESS ARE BARRED BY RES JUDICATA..... 28 CONCLUSION .................................................................................................. 31 1 of 31 FILED: NASSAU COUNTY CLERK 10/03/2019 05:15 PM INDEX NO. 009802/2014 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 10/03/2019 TABLE OF AUTHORITIES Page(s) Cases 600 W. 115th St. Corp. v. Von Gutfeld, 80 N.Y.2d 130 (1992) .............................................................................................. 24 Agnant v Shakur, 30 F. Supp. 2d 420 (S.D.N.Y. 1998) ....................................................................... 16 Matter of Allstate Ins. Co. v Liberty Mut. Ins., 58 A.D.3d 727 (2d Dep’t 2009) ............................................................................... 27 Calle v Zimmerman, 133 A.D.3d 809 (2d Dep’t 2015) ............................................................................. 27 Cardali v Slater, 167 A.D.3d 476 (1st Dep’t 2018) ...................................................................... 21, 25 Castor v Cuevas, 137 A.D.3d 734 (2d Dep’t 2016) ............................................................................. 27 Cook v. Relin, 280 A.D.2d 897 (4th Dep’t 2001) ...................................................................... 22, 26 Cromwell v County of Sac, 94 U.S. 351 (1976) .................................................................................................. 29 D’Agrosa v. Newsday, 158 A.D.2d 229 (2d Dep’t 1990) ....................................................................... 22, 26 Dervisevic v Dervisevic, 89 A.D.3d 785 (2d Dep’t 2011) ............................................................................... 27 Deutsche Bank Trust Co. v Ghaness, 100 A.D.3d 585 (2d Dep’t 2012) ............................................................................. 27 Dillon v City of New York, 261 A.D. 2d 34 (1st Dep’t 1999) ............................................................................. 16 El Jamal v. Weil, 116 A.D.3d 732 (2d Dep’t 2014) ............................................................................. 16 Elias v Massimillo, 2018 N.Y. App. Div. LEXIS 7691 (2d Dep’t 2018) ........................................... 16, 22 2 of 31 FILED: NASSAU COUNTY CLERK 10/03/2019 05:15 PM INDEX NO. 009802/2014 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 10/03/2019 First Nationwide Bank v. Gelt Funding Corp., 27 F.3d 763 (2d Cir. 1994) ...................................................................................... 18 Flamm v. Am. Ass’n of Univ. Women, 201 F.3d 144 (2d Cir. 2000) .................................................................................... 21 Franklin v Daily Holdings, Inc., 135 A.D. 3d 87 (1st Dep’t 2015) ............................................................................. 16 Friedman v. Bloomberg L.P., 884 F.3d 83 (2d Cir. 2017) ...................................................................................... 21 Galasso v Saltzman, 42 A.D. 3d 310 (1st Dep’t 2007) ............................................................................. 16 Gertz v. Robert Welch, 418 U.S. 323 (1974) ................................................................................................ 18 Gonzalez v Vigo Constr. Corp., 69 A.D.3d 565 (2d Dep’t 2010) ............................................................................... 27 Gordon v Boyd, 96 A.D.3d 719 (2d Dep’t 2012) ............................................................................... 28 Greenbelt Coop. Publ’g Ass’n v. Bresler, 398 U.S. 6 (1970) .................................................................................................... 21 Gross v New York Times Co., 82 N.Y.2d 146 (1993) ........................................................................................ 20, 24 Harris v Hirsh, 228 A.D.2d 206 (1st Dep’t 1996) ............................................................................ 20 Heaven v McGowan, 40 A.D.3d 583 (2d Dep’t 2007) ............................................................................... 27 Hecht v. Commerce Clearing House, Inc., 897 F.2d 21 (2d Cir. 1990), cert. denied, 513 U.S. 1079 (1995) ............................ 18 Ideal Steel Supply Corp. v. Anza, 373 F.3d 251 (2d Cir. 2004) .................................................................................... 17 Immuno AG v. Moor-Jankowski, 77 N.Y.2d 235 (1991) ........................................................................................ 22, 24 Joseph v Simmons, 114 A.D.3d 644 (2d Dep’t 2014) ............................................................................. 27 iii 3 of 31 FILED: NASSAU COUNTY CLERK 10/03/2019 05:15 PM INDEX NO. 009802/2014 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 10/03/2019 Matter of Korman v Bellmore Pub. Schools, 62 A.D.3d 882 (2d Dep’t 2009) ............................................................................... 27 Larson v Albany Med. Ctr., 252 AD2d 936 (3d Dep’t 1998) ......................................................................... 22, 26 Lerner v. Fleet Bank, N.A., 318 F.3d 113 (2d Cir. 2003) .................................................................................... 18 Letter Carriers v. Austin, 418 U.S. 264 (1974) ................................................................................................ 21 Levinsky’s, Inc. v. Wal-Mart Stores, 127 F.3d 122 (2d Cir. 1997) .................................................................................... 22 Liberman v Gelstein, 80 N.Y. 2d 429 (1992) ....................................................................................... 22, 25 Mallad Constr. Corp. v. Cnty. Fed. Sav. & Loan Ass’n, 32 N.Y.2d 285 (1973) ................................................................................................ 8 Mann v Abel, 10 N.Y.3d 271 (2008), cert denied 555 US 1170 (2009) ........................................ 25 Martin v. Hayes, 105 A.D.3d 1291 (3d Dep’t 2015) ........................................................................... 25 New Hampshire v Maine, 532 U.S. 742 (2001) ................................................................................................ 29 Nolan v State of New York, 158 A.D.3d 186 (1st Dep’t 2018) ...................................................................... 16, 18 Nwauwa v Mamos, 53 AD3d 646 (2008) ................................................................................................ 28 O’Neill v. Oakgrove Constr., Inc., 71 N.Y.2d 521 (1988) .............................................................................................. 22 Matter of Osorio v Motor Veh. Acc. Indem. Corp., 112 A.D.3d 831 (2d Dep’t 2013) ............................................................................. 27 Paramount Pictures Corp. v. Allianz Risk Transfer AG, 31 N.Y.3d 64 (2018) .......................................................................................... 29, 30 People v Griffin, 92 A.D.3d 1 (1st Dep’t 2011) ................................................................................... 27 iv 4 of 31 FILED: NASSAU COUNTY CLERK 10/03/2019 05:15 PM INDEX NO. 009802/2014 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 10/03/2019 Phantom Touring, Inc. v. Affiliated Publ’ns, 953 F.2d 724 (1st Cir. 1992) ................................................................................... 21 Ram v Moritt, 205 A.D.2d 516 (2d Dep’t 1994) ............................................................................. 22 Rockwell Capital Partners, Inc. v. HempAmericana, Inc., 2018 N.Y. LEXIS 3972 (Sup. Ct. New York County September 14, 2018)........................................................................................................................ 20 San Jose v. McWilliams, 284 F.3d 785 (7th Cir. 2002) .................................................................................. 24 Schwelnus v Urological Assoc. of L.I., P.C., 94 A.D.3d 971 (2d Dep’t 2012) ......................................................................... 10, 28 Simpson v Tommy Hilfiger U.S.A., Inc., 48 A.D.3d 389 (2d Dep’t 2008) ......................................................................... 10, 28 Steinhilber v Alphonse, 68 N.Y. 2d 283 (1986) ............................................................................................. 21 Stepanov v Dow Jones & Co., Inc., 120 A.D. 3d 28 (1st Dep’t 2014) ....................................................................... 16, 18 Taylor v. Sturgell, 553 U.S. 880 (2008) ................................................................................................ 29 Thomas H. v Paul B., 18 N.Y.3d 580 (2012) .............................................................................................. 20 United States v. Brandon, 651 F. Supp. 323 (W.D. Va. 1987) .......................................................................... 25 United States v. Carman, 577 F.2d 556 (5th Cir. 1978) .................................................................................. 25 Vera v Soohoo, 99 A.D.3d 990 (2d Dep’t 2012) ............................................................................... 27 Wachs v. Winter, 569 F. Supp. 1438 (E.D.N.Y. 1983) ........................................................................ 17 Statutes and Rules 18 U.S.C. § 152(8) ........................................................................................................ 24 v 5 of 31 FILED: NASSAU COUNTY CLERK 10/03/2019 05:15 PM INDEX NO. 009802/2014 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 10/03/2019 United States Constitution, First Amendment .......................................... 9, 18, 21, 24 C.P.L.R. 3212(b) ............................................................................................................. 8 C.P.L.R. Rule 3212(b) .................................................................................................... 8 C.P.L.R. Section 2005 .................................................................................................. 27 CPLR 2221 (e) .......................................................................................................... 9, 28 New York State Constitution ...................................................................................... 22 Restatement [Second] of Judgments § 27 (1982) ........................................................ 29 vi 6 of 31 FILED: NASSAU COUNTY CLERK 10/03/2019 05:15 PM INDEX NO. 009802/2014 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 10/03/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU RUSSELL FRIEDMAN, Index No. 9802-14 Plaintiff, -v- MAX FOLKENFLIK, ROBERT W. SEIDEN, FOLKENFLIK & MCGERITY LLP, DAVID GRAFF, ANDERSON KILL P.C., SEIDEN INVESTIGATIONS & SECURITY INC., CONFIDENTIAL SECURITY & INVESTIGATIONS, Defendants. MEMORANDUM OF LAW IN SUPPORT OF DEFENDANTS’ CPLR 2221 MOTION FOR REARGUMENT AND RENEWAL OF THEIR MOTION FOR SUMMARY JUDGMENT Defendants Folkenflik & McGerity LLP and Max Folkenflik (“Defendants”), by their attorneys, Folkenflik & McGerity LLP, submit this Memorandum of Law in Support of their Motion for Rehearing and Renewal of their Motion for Summary Judgment. INTRODUCTION AND SUMMARY OF THE ARGUMENT This is a Motion for Rehearing and Reargument of the denial of Defendants’ Motion for Summary Judgment. This case arises out of the execution of a search warrant on October 11, 2011, and focuses on allegedly defamatory statements allegedly made by Defendant Max Folkenflik during that search. In denying Summary Judgment, the merits of the defamation alleged and the absence of damages caused by that alleged defamation were not addressed. Instead, the Court 7 of 31 FILED: NASSAU COUNTY CLERK 10/03/2019 05:15 PM INDEX NO. 009802/2014 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 10/03/2019 denied the Motion because it was supported by a sworn affirmation (not an affidavit) of counsel, Max Folkenflik, a party to the action, reciting certain facts and attaching admissible exhibits. Although the Court correctly held that “submission of an affirmation instead of an affidavit was improper, and its contents must be disregarded…,” see, Decision Denying Summary Judgment, annexed to the Affidavit of Max Folkenflik as Exhibit H at 2, 1 the Court overlooked the admissible evidence that was submitted on that Motion. Under C.P.L.R. 3212(b), a motion for Rehearing and Renewal of Their Motion for summary judgment “shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party.” C.P.L.R. Rule 3212(b). “To defeat summary judgment the opponent must present evidentiary facts sufficient to raise a triable issue of fact, and averments merely stating conclusions, of fact or of law, are insufficient.” Mallad Constr. Corp. v. Cnty. Fed. Sav. & Loan Ass'n, 32 N.Y.2d 285, 290 (1973). Even if the text of the prior Affirmation is disregarded, the evidence submitted was sufficient because there were no damages caused by the alleged wrongful conduct. Friedman claims that damage resulted from the dissolution of his old firm, Friedman Harfinest Kraut & Pearlstein, LLP (“FHKP”) many months after the alleged defamation. Yet he cannot prove any connection between the alleged 1The Exhibits submitted on this Motion are all annexed to the Affidavit of Max Folkenflik, Sworn to on October 2, 2019. Such Exhibits will be cited as “Exhibit ____, at ____” with appropriate Exhibit and page designations. The Court Decision below has been designated Exhibit H in order to preserve the order of Exhibits submitted on the prior motion 8 8 of 31 FILED: NASSAU COUNTY CLERK 10/03/2019 05:15 PM INDEX NO. 009802/2014 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 10/03/2019 defamatory statements and the dissolution of FHKP. Sworn statements by his former partners prove that there was no such connection. Even Friedman’s own testimony shows that none of his partners ever made any statement linking anything defendants did to the dissolution of FHKP. Even more strikingly, incontrovertible evidence from Friedman’s sworn testimony and from his tax returns and other tax documents shows Friedman’s income did not decrease after the dissolution of FHKP, but instead vastly increased. Friedman’s own testimony negates any reputational injury arising from the (falsely) alleged oral defamatory statements claimed to have been made on October 11, 2013. Were more needed, and it is not, as a matter of law Friedman cannot establish the alleged defamatory statements were actionable defamation, rather than opinion or “imaginative expression” and “rhetorical hyperbole” that are protected by the First Amendment. Accordingly, the admissible evidence submitted on the Motion, including Plaintiff’s testimony and tax returns, the testimony of a loyal assistant, settled law on defamation, and other admissible exhibits (all overlooked by the Court), was all sufficient to prove Defendants are entitled to judgment as a matter of law. Reargument should be granted and Summary Judgment should be entered for the Defendants. Renewal of the prior Motion is also appropriate to allow Defendants to “cure” the technical defect by submitting a properly sworn affidavit instead of the disregarded Affirmation. “CPLR 2221 (e) has not been construed so narrowly as to 9 9 of 31 FILED: NASSAU COUNTY CLERK 10/03/2019 05:15 PM INDEX NO. 009802/2014 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 10/03/2019 disqualify, as new facts not offered on the prior motion, facts contained in a document originally rejected for consideration. because the document was not in admissible form.” Schwelnus v Urological Assoc. of L.I., P.C., 94 A.D.3d 971, 972 (2d Dep’t 2012), citing Simpson v Tommy Hilfiger U.S.A., Inc., 48 A.D.3d 389 (2d Dep’t 2008). The Affidavit submitted in support of this Motion presents additional evidence that provides additional independently sufficient reasons to dismiss Plaintiff’s causes of action for slander and libel, prima facie tort, and abuse of process based upon allegations of falsity in the papers seeking the warrant. As pointed out in the accompanying Affidavit of Max Folkenflik, those causes of action were resolved adversely to Plaintiff nearly a year before the Complaint in unsuccessful sanction proceedings brought by Friedman and others. In those proceedings, the Court that ordered the search found that there were no false statements made in the papers supporting the issuance of the warrant. Therefore, those claims are all barred by collateral estoppel and res judicata arising from that ruling and those findings. Accordingly, Renewal of the prior Motion should be allowed and for those additional reasons Summary Judgment should be granted. THE FACTS This case alleges causes of action for slander and libel, prima facie tort, and abuse of process arising out of the October 11, 2013 execution by United States Marshalls of a Court ordered search warrant at Mr. Friedman’s law firm, FHKP, for information about the assets of Andrew Bressman (“Bressman”). Most of the claims raised by Friedman in this case were definitively resolved against Friedman, in a failed sanction proceeding brought by Friedman against the Defendants in this case 10 10 of 31 FILED: NASSAU COUNTY CLERK 10/03/2019 05:15 PM INDEX NO. 009802/2014 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 10/03/2019 and others, nearly a year before the Complaint in this action was filed. Folkenflik Aff. ¶10; Exhibit B.1, Friedman Tr. 141:12-24. Friedman was (and apparently still is) the Trustee of an off-shore asset protection trust designed to protect (and apparently conceal) Bressman’s assets from creditors, such as Defendants’ clients. Bressman was the criminally convicted mastermind of an $80 million fraud, and Defendant’s clients held judgments against Bressman exceeding $30 million. Folkenflik Aff. ¶ 7, see, Exhibit A at ¶ 136. The Marshalls knocked and announced their presence to execute a search warrant and were allowed to enter. A lawyer employed by FHKP was served with the warrant and the papers on which the warrant was based. Folkenflik Aff. ¶8; see Exhibit A at ¶¶ 40, 49 . Plaintiff initially claimed in his verified Complaint that he was slandered and libeled in the course of the application for that warrant to Federal Judge Edgardo Ramos of the United States District Court for the Southern District of New York. In unsuccessful sanction proceedings brought by Plaintiff and others against the Defendants and others, Judge Ramos found that none of the statements made in the application for the warrant were shown to be false and that Defendant Folkenflik’ s conduct in seeking the warrant was in “good faith.” Folkenflik Aff. ¶10, see Exhibit A at ¶¶ 101-109. Plaintiff also claimed in his verified Complaint that Folkenflik “and/or employees of [Folkenflik & McGerity LLP] and CSI [Defendant Confidential Security & Investigations]” made oral statements to Friedman’s long time (and fiercely loyal) assistant, Donna Berlingieri (“Berlingieri”), defaming 11 11 of 31 FILED: NASSAU COUNTY CLERK 10/03/2019 05:15 PM INDEX NO. 009802/2014 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 10/03/2019 Friedman’s character in general non-specific terms, including the use of the term “crook” to describe the Plaintiff. Exhibit A ¶ 62. Folkenflik denies those statements were ever made, Folkenflik Aff. ¶12, and the verified complaint does not even claim that those statement were made by him, and, instead, asserts the statements were made by either him “or” someone else. This motion does not seek to resolve that factual “dispute,” but seeks judgment. As shown below, even if made, those statements would be non-actionable, and even if made there was no damage or causation. FRIEDMAN’S PRIOR FIRM AND ITS DESOLUTION Friedman together with his partners Steven Harfenist (“Harfenist”), Jonathan D. Kraut (“Kraut”), and Allen Perlstein (“Perlstein”) were partners in the law firm of FHKP. FHKP had two distinct practice groups, one led by Friedman that focused on the collection of fees owed to medical providers under No-Fault automobile insurance policies (the “No Fault Practice”) and the remaining general practice that was involved in litigation, land use and commercial real estate, matrimonial, and corporate transactional matters run by the remaining partners (the “General Practice”). Exhibit B.2, Friedman Tr. 346:6-23, Exhibit B.1, Friedman Tr. 218:12-17, Exhibit B.2, Friedman Tr. 290:11-291:13 Mr. Friedman claims that his former firm dissolved in March 2014 allegedly because of the warrant execution, but the facts contradict that speculation. In fact, the dissolution of FHKP resulted from a dispute about the conduct of 12 12 of 31 FILED: NASSAU COUNTY CLERK 10/03/2019 05:15 PM INDEX NO. 009802/2014 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 10/03/2019 Friedman’s business. See, Exhibit A at ¶¶ 67-68 and Exhibit D, p.5 ¶ 4; Exhibit B.2, Friedman Tr. 290:11-291:13, 301:23-302:14. Friedman admits he did not seek to mitigate his damages by joining another firm. He did not even consider working for another firm. To use Friedman’s own language, Friedman “wanted to bet on himself.” Accordingly, instead of seeking other means of mitigating damages, Friedman immediately formed his own firm, initially Friedman & Associates LLP and now the Russell Friedman Law Group (collectively “RGL”), where he is currently the sole equity partner and sole owner. Exhibit A at ¶69; Exhibit B.1, Friedman Tr. 13:8-14. Recognizing the greater value of Friedman’s practice than the combined value of the other three partners, Friedman entered into a settlement agreement, which required him to purchase his share of the partnership from the other remaining partners. See, Exhibit E. Friedman’s tax returns and K-1 documents prove that it did not take long before the start-up lull in business was overcome and his practice began to thrive. Exhibit F, Exhibit G. In 2014, the year his firm was first formed, Friedman’s income went down because of the combination of his need to invest in his firm and because he could not obtain the funding needed to support the massive cash needs his practice required. Friedman admitted that the reason his business contracted in 2014 was that he “wasn’t able to process the work,” and he made clear that the inability to “process the work” was solely a result of his decision to invest in himself and his lack of funds or credit to make that immediately pay off. Exhibit B.1, Friedman Tr. 176:4-8. 13 13 of 31 FILED: NASSAU COUNTY CLERK 10/03/2019 05:15 PM INDEX NO. 009802/2014 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 10/03/2019 As Friedman testified: “post breakup, my practice hit the shitter, because I couldn't get the lines of credit that we had in the other practice, and because of that I ended up taking a significant hit on the work that I could file and put in. Just didn't have the cash flow for it.” Exhibit B.1, Friedman Tr. 174:13-175:6 (emphasis added). Friedman also made clear that this lack of funds and credit had absolutely nothing to do with the warrant execution or anything Defendants said or did. Prior to the execution, Friedman had run up a huge debt to the IRS, over $579,000 by the time of the execution, because of a failure to pay Federal Income tax. The IRS sought and obtained a judgment for that amount against him. See, Exhibits B.1 and B.2, Friedman Tr. 174:13-175:6, 280:7-282:16. Yet, by 2015, he was making more than he did in 2011. In 2016 and 2017, Mr. Friedman made approximately $ million each year, more than double his average in the 2011-2013 period. If one averages the total earnings for the four full years Friedman has been in practice in his own firm, it is over % of the average earnings he made in the three prior years. Folkenflik Aff. ¶ 29. Friedman admitted he cannot establish a causal connection of any sort between the warrant execution and the initial drop off in business in 2014 or 2015. When asked the question: “Are you aware that any of those clients [who sent him less business than in 2013 than in 2014] were aware of anything that I [Folkenflik] said?” Friedman admitted: “They didn't know that.” Exhibit B.1, Friedman Tr. 175:17-22. Similarly, when asked if knowledge of the warrant execution “caused anybody to not 14 14 of 31 FILED: NASSAU COUNTY CLERK 10/03/2019 05:15 PM INDEX NO. 009802/2014 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 10/03/2019 refer business to you?” Friedman admitted: “Listen, I don't know what – I don't know what caused them to ultimately do it…” Exhibit B.1, Friedman Tr. 176:4-8. Yet, in the very same sentence, Friedman did admit that he knew what caused his business to drop off. It was because he “wasn’t able to process the work.” Id. The testimony also makes clear that none of the alleged statements that Friedman claims had defamatory impact were believed to be true by Donna Berlingeri or, according to Berlingeri, any of the others who she claimed heard those alleged statements. See, Birlingeri Tr. 54:10-21 (Berlingeri did not belive); 59:20-60:17 (Lupo did not believe); 60:21-61:19 (Murphy now works for Friedman); 56:20-53:22 (Crowley never stated she believed). Ms. Berlingeri believes that Friedman is a phenomenal attorney and a man of great integrity. Exhibit C, Berlingeri Tr. 32:3-15. She has not talked to anyone in the legal community about the comments Defendants allegedly made and cannot recall anyone mentioning his comments to her. Exhibit C, Berlingeri Tr.113:25-114:12. Friedman believes he has a good reputation, and to the extent that there may be some who look at him unfavorably, he could not identify any who do so because of anything Defendants said or did. See, Exhibit Be.1 and B.2, Friedman Tr. at 47:4-25, 232:14-234:21. 15 15 of 31 FILED: NASSAU COUNTY CLERK 10/03/2019 05:15 PM INDEX NO. 009802/2014 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 10/03/2019 ARGUMENT POINT I DEFENTANTS’ MOTION FOR REARGUMENT SHOULD BE GRANTED BECAUSE THE COURT OVERLOOKED ADMISSIBLE EVIDENCE SHOWING THAT PLAINTIFF CANNOT PROVE CAUSATION OR DAMAGES. A. PLAINTIFF CAN NOT ESTABLISH THAT THE CONDUCT OF DEFENDANTS WAS THE CAUSE OF ANY INJURY. It is axiomatic that in order to establish a claim for defamation, either libel or slander, the plaintiff must establish that the wrongful and false statement was the cause of harm to him. Stepanov v Dow Jones & Co., Inc., 120 A.D. 3d 28, 34 (1st Dep’t 2014); Dillon v City of New York, 261 A.D. 2d 34, 38 (1st Dep’t 1999). Absent proof of defamation per se, and we show below there has been no such showing, a defamation plaintiff must prove “special damages.” Elias v Massimillo, 2018 N.Y. App. Div. LEXIS 7691, *1-3 (2d Dep’t 2018); El Jamal v. Weil, 116 A.D.3d 732, 733- 34 (2d Dep’t 2014). Special damages are “the loss of something having economic or pecuniary value, which must flow directly from the injury to reputation caused by the defamation and not from the effects of the defamation.” Nolan v State of New York, 158 A.D.3d 186, 191 (1st Dep’t 2018), citing, Franklin v Daily Holdings, Inc., 135 A.D. 3d 87, 93 (1st Dep’t 2015), quoting Agnant v Shakur, 30 F. Supp. 2d 420, 426 (S.D.N.Y. 1998). In the absence of such proof, Summary Judgment must be granted dismissing the plaintiff’s claims. Id. citing, Galasso v Saltzman, 42 A.D. 3d 310, 311 (1st Dep’t 2007). Even if the alleged defamation occurred, the admissions by Plaintiff Friedman as well as the testimony of Friedman’s loyal secretary proves, 16 16 of 31 FILED: NASSAU COUNTY CLERK 10/03/2019 05:15 PM INDEX NO. 009802/2014 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 10/03/2019 incontrovertibly, that there were no damages “flowing” from any act of, or statements made by, the Defendants. To the contrary, Friedman is not aware that any of his clients or anyone in the community was aware of any oral statements made by Folkenflik. Exhibit B.1, Friedman Tr. 175:17-22, Exhibit C, Berlingeri Tr.113:25- 114:12. Friedman believes he has a good reputation, and to the extent that there may be some who look at him unfavorably, he could not identify any who do so because of anything Defendants said or did. See, Exhibit B.1 and B.2, Friedman Tr. At 47:4-25, 232:14-234:21. The testimony shows that anyone who heard the oral statements allegedly made about Friedman’s character did not believe them. See, Exhibit C. Berlingeri Tr. 54:10-21 (Berlingeri did not believe); 59:20-60:17 (Lupo did not believe); 60:21-61:19 (Murphy now works for Friedman); 56:20-53:22 (Crowley never stated she believed). Ms. Berlingeri believes that Friedman is a phenomenal attorney and a man of great integrity. Exhibit C, Berlingeri Tr. 32:3-15. See, Wachs v. Winter, 569 F. Supp. 1438, 1447-48 (E.D.N.Y. 1983) (absent belief in truth of statements, there is no compensatory damage to be awarded). The “flow directly” requirement of “special damages” is clearly a more stringent standard than “proximate cause.” Even under the lesser proximate cause standard, Plaintiff cannot prove causation. “Central to the notion of proximate cause is the idea that a person is not liable to all those who may have been injured by his conduct, but only those with respect to whom his acts were ‘a substantial factor in the sequence of responsible causation,’ and whose injury was ‘reasonably foreseeable or anticipated as a natural consequence.’” Ideal Steel Supply Corp. v. Anza, 373 F.3d 251, 257 (2d 17 17 of 31 FILED: NASSAU COUNTY CLERK 10/03/2019 05:15 PM INDEX NO. 009802/2014 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 10/03/2019 Cir. 2004), citing Lerner v. Fleet Bank, N.A., 318 F.3d 113, 123 (2d Cir. 2003), First Nationwide Bank v. Gelt Funding Corp., 27 F.3d 763, 769 (2d Cir. 1994) and Hecht v. Commerce Clearing House, Inc., 897 F.2d 21, 23-24 (2d Cir. 1990), cert. denied, 513 U.S. 1079 (1995). Due to the absence of causation between any of the acts of Defendants and any harm directly flowing from those acts, Plaintiff’s claims against these Defendants must be dismissed. B. PLAINTIFF PROFITED FROM THE DISOLUTION OF HIS FIRM AND THEREFORE CANNOT PROVE ANY DAMAGES. Had causation been established, Plaintiff would still have to prove actual damage. Friedman cannot do so. This is true even if libel per se were established. While for pleading purposes in a claim of libel per se damages are presumed, Stepanov v Dow Jones & Co., Inc., 120 A.D. 3d 28, 34 (1st Dep’t 2014), when the plaintiff seeks to obtain an award of damages, as a matter of constitutional law, and the protections for speech contained in the First Amendment, actual injury must be proven. Gertz v. Robert Welch, 418 U.S. 323, 349 (1974); Nolan v. State of N.Y., 158 A.D.3d 186, 192 (1st Dep’t). Other than rank speculation, Friedman cannot show that the breakup of FHKP was a result of anything Defendants said or did. Exhibit D p. 5 ¶¶ 3-4, Exhibit B.2, Friedman Tr. 290:11-291:13, Exhibit B.2, Friedman Tr. 301:23-302:14, Exhibit B.2, Friedman Tr. 301:16-303:10, Exhibit B.1, Friedman Tr. 175:17-178:8 cited. After the breakup, Friedman’s business dropped off in 2014, but that was a result of the fact that he “wasn’t able to process the work,” resulting from his lack of 18 18 of 31 FILED: NASSAU COUNTY CLERK 10/03/2019 05:15 PM INDEX NO. 009802/2014 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 10/03/2019 funds or credit to fund the cash flow required by his new business. Exhibit B.1, Friedman Tr. 176:4-8. As Friedman testified: “post breakup, my practice hit the shitter, because I couldn't get the lines of credit that we had in the other practice, and because of that I ended up taking a significant hit on the work that I could file and put in. Just didn't have the cash flow for it. ….” Exhibit B.1, Friedman Tr. 174:13-175:6 (emphasis added). Friedman also had bad credit. Prior to the breakup, the IRS obtained a judgment against Friedman for over $579,000. See, Exhibit B.2, Friedman Tr. 280:7- 282:16. Further, Friedman testified, “I didn't have any -- in my new firm, I didn't have any operating history and my credit was bad. And I don't think it was -- my credit was bad generally speaking. It wasn't bad just because of my IRS loss [sic].” Exhibit B.1, Friedman Tr. 174:13-175:6. But for that first year, Friedman’s “bet on himself” was a big win for him; his business was a stupendous success. By 2015 he was making more than he did in 2011. In 2016 and 2017, Mr. Friedman made approximately $1.1 million each year, more than double his average in the 2011-2013 period. Exhibit F, Exhibit G; see Folkenflik Aff. ¶ 29. If you average the total earnings for the four full years Friedman has been in practice in his own firm, it is over 150% of the average earnings he made in the three prior years. See, Folkenflik Aff. ¶ 29, and Exhibits G and F. Friedman does not have any proof that his earnings would have been still higher but for Defendants’ conduct. He does not and cannot prove that he lost any referrals. Exhibit B.1, Friedman Tr. 175:17-22, Exhibit B.1, Friedman Tr. 176:4-8. Friedman 19 19 of 31 FILED: NASSAU COUNTY CLERK 10/03/2019 05:15 PM INDEX NO. 009802/2014 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 10/03/2019 does not claim, and cannot prove, that anything that Defendants said or did caused any injury to his reputation. See, Exhibit B.1 and B.2, Friedman Tr. At 47:4-25, 232:14-234:21. Accordingly, Friedman cannot demonstrate that he has been damaged in the past or will be damaged in the future. For that reason alone, Friedman’s case must be dismissed. C. FRIEDMAN CANNOT PROVE DEFAMATION PER SE Plaintiff has pleaded slander and libel per se. There are four categories of statements that constitute libel/slander per se: “(1) statements charging plaintiff with a serious crime; (2) statements that tend to injure plaintiff in her trade, business or profession; (3) statements that plaintiff has a loathsome disease; or (4) imputing unchastity to a woman.” Harris v Hirsh, 228 A.D.2d 206 (1st Dep’t 1996); accord, Rockwell Capital Partners, Inc. v. HempAmericana, Inc., 2018 N.Y. LEXIS 3972, *6- 7 (Sup. Ct. New York County September 14, 2018). In addition to incontrovertible proof that there were no damages, as we show above, Friedman cannot prove that any of the alleged statements fall into that category. As with all claims for defamation, the statements in question must be provably false. “Generally, only statements of fact can be defamatory because statements of pure opinion cannot be proven untrue.” (Thomas H. v Paul B., 18 N.Y.3d 580, 584, (2012); Gross v New York Times Co., 82 N.Y.2d 146, 152-53 (1993) (“Since falsity is a necessary element of a defamation cause of action and only ‘facts’ are capable of being proven false, it follows that only statements alleging facts can properly be the subject of a defamation action.”) (certain internal quotation marks omitted). 20 20 of 31 FILED: NASSAU COUNTY CLERK 10/03/2019 05:15 PM INDEX NO. 009802/2014 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 10/03/2019 Accordingly, statements of opinion are not actionable. “A ‘pure opinion’ is a statement of opinion which is accompanied by a recitation of the facts upon which it is based. An opinion not accompanied by such a factual recitation may, nevertheless, be ‘pure opinion’ if it does not imply that it is based upon undisclosed facts.” Steinhilber v Alphonse, 68 N.Y. 2d 283, 289 (1986); Cardali v Slater, 167 A.D.3d 476, 477 (1st Dep’t 2018)(“statement that Cardali was ‘really nothing more than a common criminal’ is a nonactionable statement of opinion). Further, a defendant is not liable for “statements that cannot reasonably be interpreted as stating actual facts about an individual, including statements of imaginative expression or rhetorical hyperbole.” Friedman v. Bloomberg L.P., 884 F.3d 83, 95-96 (2d Cir. 2017). See Flamm v. Am. Ass'n of Univ. Women, 201 F.3d 144, 150-51 (2d Cir. 2000). First Amendment has protection long been afforded to “imaginative expression” and “rhetorical hyperbole.” 497 U.S. at 17, 20. “Thus, the First Amendment prohibits defamation actions based on loose, figurative language that no reasonable person would believe presented facts.” See, e.g., Letter Carriers v. Austin, 418 U.S. 264, 284-86 (1974) (holding that use of the word “traitor” to define a worker who crossed a picket line was not actionable); Greenbelt Coop. Publ'g Ass'n v. Bresler, 398 U.S. 6, 13-14 (1970) (holding that a newspaper’s characterization of a developer’s negotiating position as “blackmail” was not defamatory; the word was simply “an epithet” and, under the circumstances, did not suggest commission of a crime); Phantom Touring, Inc. v. Affiliated Publ'ns, 953 F.2d 724, 728 (1st Cir. 1992) (calling a play “a rip-off, a fraud, a scandal, a snake-oil job” was mere hyperbole and, 21 21 of 31 FILED: NASSAU COUNTY CLERK 10/03/2019 05:15 PM INDEX NO. 009802/2014 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 10/03/2019 thus, constitutionally protected). “The First Amendment’s shielding of figurative language reflects the reality that exaggeration and non-literal commentary have become an integral part of social discourse.” Levinsky's, Inc. v. Wal-Mart Stores, 127 F.3d 122, 128 (2d Cir. 1997). The New York State Constitution goes even further. “[T]he ‘protection afforded by the guarantees of free press and speech in the New York Constitution is