Preview
FILED: NEW YORK COUNTY CLERK 08/16/2019 10:01 AM INDEX NO. 652352/2018
NYSCEF DOC. NO. 49 RECEIVED NYSCEF: 08/16/2019
SUPREME COURT OF THE STATE OF NEW YORK
NEW YORK COUNTY
PRESENT: HON. ANDREW BORROK PART IAS MOTION 53EFM
Justice
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INDEX NO. 652352/2018
WIKKED ENTERTAINMENT, INC.,STELLA STOLPER
MOTION DATE 03/25/2019
Plaintiff,
MOTION SEQ. NO. 002
-v-
ZARINA BURBACKI, YONATAN SHIMRONY,
DECISION AND ORDER
Defendant.
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The following e-filed documents, listed by NYSCEF document number (Motion 002) 35, 36, 37, 40, 41,
42, 44, 45
were read on this motion to/for DISMISSAL .
Plaintiff Stella Stolper moves to dismiss the counterclaims of defendant Zarina Burbacki
pursuant to CPLR §§ 3211 (a) (7) and 3016 (a) and for a more definite statement regarding the
first counterclaim pursuant to CPLR § 3024. For the reasons set forth below, the motion is
granted to the extent that the third and fourth counterclaims are dismissed without prejudice and
the defendant is directed to file an amended answer and counterclaim clarifying the specific
statutory or other basis upon which the defendant is pursuing the first counterclaim.
DISCUSSION
A party may move for judgment dismissing one or more causes of action on the ground that the
pleadings fail to state a cause of action for which relief may be granted (CPLR § 3211 [a] [7]).
On a motion to dismiss pursuant to CPLR § 3211 (a) (7), the court must afford the pleadings a
liberal construction and accept the facts alleged in the complaint as true, according the plaintiff
the benefit of every favorable inference (Morone v Morone, 50 NY2d 481, 484 [1980]). The
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court’s inquiry on a motion to dismiss is whether the facts alleged fit within any cognizable legal
theory (id.). Bare legal conclusions are not accorded favorable inferences, however, and need
not be accepted as true (Biondi v Beekman Hill House Apt. Corp., 257 AD2d 76, 81 [1st Dept
1999]).
Hostile Work Environment
The branch of the motion to dismiss this claim is denied. The counterclaim alleges that the
defendants were constantly required to work with Ms. Stolper and further alleges that they were
required to perform “thousands of hours” of “personal work” for Ms. Stolper (Counterclaim, ¶¶
126, 178, 180, 181). The facts alleged in the complaint are, among other things, that (i)
“Plaintiff would constantly yell obscenities including but not limited to calling colleagues or
staff ‘white dog shit,’ ‘fucking Israelis,’ ‘fucking Jews,’ ‘Armenian terrorist,’ ‘Armenian whore,’
often using the N-word, homophobic slurs and other such vulgar and disgusting insults”; (ii)
“Plaintiff on several occasions would grab the genitals of staff members, male and female,
including Defendant and YONATAN, mocking them in front of other colleagues and laughing at
her own perverse jokes”; (iii) “Plaintiff also repeatedly pulled down her tank tops to reveal one
or both of her breasts and ask the staff, including Defendant and YONATAN, if the surgeon did
a ‘good job’”; (iv) after summoning the defendants to her hotel room, “Plaintiff then took a
towel, threw it on the floor, spread her legs and started urinating on the floor” in front of the
defendants; (v) “On another occasion, Plaintiff tackled one of the assistants to the ground and
began urinating on her in the presence of Defendant and YONATAN, while laughing to the point
where she ‘couldn’t breathe’; (vi) “Plaintiff would constantly make crude comments about male
genitalia in Defendant and YONATAN’s presence, and specifically make such comments to
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YONATAN, whom Plaintiff would refer to as her ‘day husband’” (Counterclaim ¶¶ 124-159).
The counterclaim alleges that the “Plaintiff’s behavior in the workplace was perverse, pervasive,
and severe” (id., ¶ 127). Taking the allegations as true, this conduct fits within a cognizable
legal theory for recovery.
Ms. Stolper also argues that inasmuch as the specific theory of recovery is not identified (e.g.,
Title VII of the Civil Rights Act of 1964, the New York State Human Rights Law, New York
City Human Rights Law, or common law), she can not frame a response. As pled, it is not clear
which legal theory the defendants are pursuing, accordingly, the branch of the motion for a more
definite statement is granted (CPLR § 3024).
Defamation
To prevail on a cause of action for defamation, a plaintiff must establish: (i) a false statement, (ii)
published to a third party, (iii) without privilege or authorization, (vi) resulting in harm, except
for certain exceptions where a showing of harm is not required (Stepanov v Dow Jones & Co.,
Inc., 120 AD3d 28, 34 [1st Dept 2014]). Allegations of defamation must be pled with
particularity pursuant to CPLR § 3016 (a), but the words need not be in quotation marks
(Moreira-Brown v City of New York, 71 AD3d 530, 530 [1st Dept 2010]).
Here, Ms. Stolper argues that the defamation counterclaim fails to meet the heightened pleading
standard under CPLR § 3016 (a). First, Ms. Stolper argues that Ms. Burbacki fails to set forth
the specific words that were allegedly spoken by Ms. Stolper and communicated to their mutual
employer (MC). The counterclaim specifically alleges that, “in or around October 2017, [Ms.
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Stolper] stated to Isabella Chistrina Bohorques, the former assistant to MC, that Burbacki was
not really a licensed attorney” (Counterclaim ¶ 163), and that she “had stolen millions of dollars
from [MC]” (id., ¶ 164). The counterclaim further alleges that “in October 2017, [Ms. Stolper]
had her assistant, Matthew Stevens . . . send a letter to MC’s head of security, Albert Mack . . .
stating that Defendant and Yonatan had conspired with MC’s assistant, Lianna Shakhnazarian . .
. in order to extort and/or humiliate MC” (id., ¶ 166). Based on these allegations, the
counterclaim sufficiently pleads the particular words alleged to be defamatory.
It was unclear from the papers whether the Plaintiff was arguing that she did not know who
“MC” was (see Pl.’s Mem. in Support, at 6 [“Defendant never identifies who MC is. Thus, it is
impossible for Stolper to know to whom her alleged defamatory statements pertain” [emphasis
added]). This was confusing because NYSCEF Doc. No. 41 includes several emails from Ms.
Stolper in which she states, “we have top notch armed security that have worked with MC in the
past” and asks “why didn’t you guys have MC return on the A380” [emphasis added]. These
emails clearly demonstrate that Ms. Stolper knows who MC is. However, at oral argument,
counsel to the Plaintiff clarified the point he was making. To wit, the argument advanced is that
“MC” is not a sufficient delineation and therefore the defamation cause of action must be
dismissed. The argument however fails. As stated above, the first statement discussed was not
spoken to MC. It was spoken to Isabella Chistrina Bohorques. The second statement which was
given to Albert Mack to publish to MC is sufficient because it is specific and MC are the initials
of the person known to the Plaintiff by the initials MC. In other words, for the purposes of this
motion, the counterclaim identifies the words alleged to have been spoken, the time that they
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were allegedly spoken and the specific people to whom they were said. Accordingly, the motion
to dismiss the second counterclaim is denied.
Unjust Enrichment
The elements of a cause of action for unjust enrichment are “(1) the other party was enriched, (2)
at that party’s expense, and (3) that it is against equity and good conscience to permit the other
party to retain what is sought to be recovered” (Georgia Malone & Co., Inc. v Rieder, 19 NY3d
511, 516 [2012]). Here, the counterclaim fails to allege facts to support the inference that Ms.
Stolper was enriched at Ms. Burbacki’s expense. The only allegation in this regard states that
Ms. Stolper “made [Ms. Burbacki] handle thousands of hours of personal work for [Ms. Stolper]
without payment . . . for the services rendered” (Counterclaim ¶ 178). The allegation that Ms.
Burbacki performed “personal work” is vague and conclusory and is insufficient to state a cause
of action for unjust enrichment. Therefore, the third cause of action is dismissed without
prejudice.
Tortious Interference with Business Relations
The prima facie elements of a cause of action for tortious interference with prospective business
relations are (i) business relations with a third party, (ii) the defendant’s interference with those
business relations, (iii) using harmful means or with the sole purpose of harming the plaintiff,
(iv) resulting in injury to the business relationship (Guard-Life Corp. v S. Parker Hardware Mfg.
Corp., 50 NY2d 183 [1990]; Carvel v Noonan, 3 NY3d 182, 190 [2004]).
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The counterclaim alleges that Ms. Stolper falsely accused Ms. Burbacki of conspiring with MC’s
assistant, Ms. Shaknazarian, to extort or humiliate MC, thereby interfering with and ultimately
causing the termination of Ms. Burbacki’s business relationship with MC (Counterclaim ¶¶ 185-
192). The statement was allegedly sent by Ms. Stolper’s assistant, Mr. Stevens, at Ms. Stolper’s
direction, to MC’s head of security, Mr. Mack (id., ¶ 166). The counterclaim alleges that Ms.
Stolper caused the letter to be delivered to Mr. Mack because she “knew that [Mr. Mack] would
then present the letter to MC” (id., ¶ 168). The problem with these facts as alleged is that there is
no allegation in the counterclaim to indicate that MC actually received the letter or ever learned
of its contents or that the relationship with MC was damaged as a result of the letter – i.e., it fails
to allege that Ms. Stolper interfered with Ms. Burbacki’s business relations with MC or that any
resulting injury to such relationship was caused by Ms. Stolper’s actions. Accordingly, the
fourth counterclaim for tortious interference with business relations is dismissed without
prejudice.
Accordingly, it is
ORDERED that Stella Stolper’s motion to dismiss the second, third, and fourth counterclaims of
Zarina Burbacki pursuant to CPLR §§ 3211 (a) (7) and 3016 (a) is granted to the extent that the
third and fourth counterclaims are dismissed without prejudice and it otherwise denied; and it is
further
ORDERED that Stella Stolper’s motion for a more definite statement regarding the first
counterclaim pursuant to CPLR § 3024 is granted.
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8/14/2019
DATE
CHECK ONE: CASE DISPOSED X NON-FINAL DISPOSITION
GRANTED DENIED X GRANTED IN PART OTHER
APPLICATION: SETTLE ORDER SUBMIT ORDER
CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE
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FILED: NEW YORK COUNTY CLERK 08/16/2019 10:01 AM INDEX NO. 652352/2018 NYSCEF DOC. NO. 49 RECEIVED NYSCEF: 08/16/2019 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. ANDREW BORROK PART IAS MOTION 53EFM Justice --------------------------------------------------------------------------------X INDEX NO. 652352/2018 WIKKED ENTERTAINMENT, INC.,STELLA STOLPER MOTION DATE 03/25/2019 Plaintiff, MOTION SEQ. NO. 002 -v- ZARINA BURBACKI, YONATAN SHIMRONY, DECISION AND ORDER Defendant. ---------------------------------------------------------------------------------X The following e-filed documents, listed by NYSCEF document number (Motion 002) 35, 36, 37, 40, 41, 42, 44, 45 were read on this motion to/for DISMISSAL . Plaintiff Stella Stolper moves to dismiss the counterclaims of defendant Zarina Burbacki pursuant to CPLR §§ 3211 (a) (7) and 3016 (a) and for a more definite statement regarding the first counterclaim pursuant to CPLR § 3024. For the reasons set forth below, the motion is granted to the extent that the third and fourth counterclaims are dismissed without prejudice and the defendant is directed to file an amended answer and counterclaim clarifying the specific statutory or other basis upon which the defendant is pursuing the first counterclaim. DISCUSSION A party may move for judgment dismissing one or more causes of action on the ground that the pleadings fail to state a cause of action for which relief may be granted (CPLR § 3211 [a] [7]). On a motion to dismiss pursuant to CPLR § 3211 (a) (7), the court must afford the pleadings a liberal construction and accept the facts alleged in the complaint as true, according the plaintiff the benefit of every favorable inference (Morone v Morone, 50 NY2d 481, 484 [1980]). The 652352/2018 WIKKED ENTERTAINMENT, INC. vs. BURBACKI, ZARINA Page 1 of 7 Motion No. 002 1 of 7 FILED: NEW YORK COUNTY CLERK 08/16/2019 10:01 AM INDEX NO. 652352/2018 NYSCEF DOC. NO. 49 RECEIVED NYSCEF: 08/16/2019 court’s inquiry on a motion to dismiss is whether the facts alleged fit within any cognizable legal theory (id.). Bare legal conclusions are not accorded favorable inferences, however, and need not be accepted as true (Biondi v Beekman Hill House Apt. Corp., 257 AD2d 76, 81 [1st Dept 1999]). Hostile Work Environment The branch of the motion to dismiss this claim is denied. The counterclaim alleges that the defendants were constantly required to work with Ms. Stolper and further alleges that they were required to perform “thousands of hours” of “personal work” for Ms. Stolper (Counterclaim, ¶¶ 126, 178, 180, 181). The facts alleged in the complaint are, among other things, that (i) “Plaintiff would constantly yell obscenities including but not limited to calling colleagues or staff ‘white dog shit,’ ‘fucking Israelis,’ ‘fucking Jews,’ ‘Armenian terrorist,’ ‘Armenian whore,’ often using the N-word, homophobic slurs and other such vulgar and disgusting insults”; (ii) “Plaintiff on several occasions would grab the genitals of staff members, male and female, including Defendant and YONATAN, mocking them in front of other colleagues and laughing at her own perverse jokes”; (iii) “Plaintiff also repeatedly pulled down her tank tops to reveal one or both of her breasts and ask the staff, including Defendant and YONATAN, if the surgeon did a ‘good job’”; (iv) after summoning the defendants to her hotel room, “Plaintiff then took a towel, threw it on the floor, spread her legs and started urinating on the floor” in front of the defendants; (v) “On another occasion, Plaintiff tackled one of the assistants to the ground and began urinating on her in the presence of Defendant and YONATAN, while laughing to the point where she ‘couldn’t breathe’; (vi) “Plaintiff would constantly make crude comments about male genitalia in Defendant and YONATAN’s presence, and specifically make such comments to 652352/2018 WIKKED ENTERTAINMENT, INC. vs. BURBACKI, ZARINA Page 2 of 7 Motion No. 002 2 of 7 FILED: NEW YORK COUNTY CLERK 08/16/2019 10:01 AM INDEX NO. 652352/2018 NYSCEF DOC. NO. 49 RECEIVED NYSCEF: 08/16/2019 YONATAN, whom Plaintiff would refer to as her ‘day husband’” (Counterclaim ¶¶ 124-159). The counterclaim alleges that the “Plaintiff’s behavior in the workplace was perverse, pervasive, and severe” (id., ¶ 127). Taking the allegations as true, this conduct fits within a cognizable legal theory for recovery. Ms. Stolper also argues that inasmuch as the specific theory of recovery is not identified (e.g., Title VII of the Civil Rights Act of 1964, the New York State Human Rights Law, New York City Human Rights Law, or common law), she can not frame a response. As pled, it is not clear which legal theory the defendants are pursuing, accordingly, the branch of the motion for a more definite statement is granted (CPLR § 3024). Defamation To prevail on a cause of action for defamation, a plaintiff must establish: (i) a false statement, (ii) published to a third party, (iii) without privilege or authorization, (vi) resulting in harm, except for certain exceptions where a showing of harm is not required (Stepanov v Dow Jones & Co., Inc., 120 AD3d 28, 34 [1st Dept 2014]). Allegations of defamation must be pled with particularity pursuant to CPLR § 3016 (a), but the words need not be in quotation marks (Moreira-Brown v City of New York, 71 AD3d 530, 530 [1st Dept 2010]). Here, Ms. Stolper argues that the defamation counterclaim fails to meet the heightened pleading standard under CPLR § 3016 (a). First, Ms. Stolper argues that Ms. Burbacki fails to set forth the specific words that were allegedly spoken by Ms. Stolper and communicated to their mutual employer (MC). The counterclaim specifically alleges that, “in or around October 2017, [Ms. 652352/2018 WIKKED ENTERTAINMENT, INC. vs. BURBACKI, ZARINA Page 3 of 7 Motion No. 002 3 of 7 FILED: NEW YORK COUNTY CLERK 08/16/2019 10:01 AM INDEX NO. 652352/2018 NYSCEF DOC. NO. 49 RECEIVED NYSCEF: 08/16/2019 Stolper] stated to Isabella Chistrina Bohorques, the former assistant to MC, that Burbacki was not really a licensed attorney” (Counterclaim ¶ 163), and that she “had stolen millions of dollars from [MC]” (id., ¶ 164). The counterclaim further alleges that “in October 2017, [Ms. Stolper] had her assistant, Matthew Stevens . . . send a letter to MC’s head of security, Albert Mack . . . stating that Defendant and Yonatan had conspired with MC’s assistant, Lianna Shakhnazarian . . . in order to extort and/or humiliate MC” (id., ¶ 166). Based on these allegations, the counterclaim sufficiently pleads the particular words alleged to be defamatory. It was unclear from the papers whether the Plaintiff was arguing that she did not know who “MC” was (see Pl.’s Mem. in Support, at 6 [“Defendant never identifies who MC is. Thus, it is impossible for Stolper to know to whom her alleged defamatory statements pertain” [emphasis added]). This was confusing because NYSCEF Doc. No. 41 includes several emails from Ms. Stolper in which she states, “we have top notch armed security that have worked with MC in the past” and asks “why didn’t you guys have MC return on the A380” [emphasis added]. These emails clearly demonstrate that Ms. Stolper knows who MC is. However, at oral argument, counsel to the Plaintiff clarified the point he was making. To wit, the argument advanced is that “MC” is not a sufficient delineation and therefore the defamation cause of action must be dismissed. The argument however fails. As stated above, the first statement discussed was not spoken to MC. It was spoken to Isabella Chistrina Bohorques. The second statement which was given to Albert Mack to publish to MC is sufficient because it is specific and MC are the initials of the person known to the Plaintiff by the initials MC. In other words, for the purposes of this motion, the counterclaim identifies the words alleged to have been spoken, the time that they 652352/2018 WIKKED ENTERTAINMENT, INC. vs. BURBACKI, ZARINA Page 4 of 7 Motion No. 002 4 of 7 FILED: NEW YORK COUNTY CLERK 08/16/2019 10:01 AM INDEX NO. 652352/2018 NYSCEF DOC. NO. 49 RECEIVED NYSCEF: 08/16/2019 were allegedly spoken and the specific people to whom they were said. Accordingly, the motion to dismiss the second counterclaim is denied. Unjust Enrichment The elements of a cause of action for unjust enrichment are “(1) the other party was enriched, (2) at that party’s expense, and (3) that it is against equity and good conscience to permit the other party to retain what is sought to be recovered” (Georgia Malone & Co., Inc. v Rieder, 19 NY3d 511, 516 [2012]). Here, the counterclaim fails to allege facts to support the inference that Ms. Stolper was enriched at Ms. Burbacki’s expense. The only allegation in this regard states that Ms. Stolper “made [Ms. Burbacki] handle thousands of hours of personal work for [Ms. Stolper] without payment . . . for the services rendered” (Counterclaim ¶ 178). The allegation that Ms. Burbacki performed “personal work” is vague and conclusory and is insufficient to state a cause of action for unjust enrichment. Therefore, the third cause of action is dismissed without prejudice. Tortious Interference with Business Relations The prima facie elements of a cause of action for tortious interference with prospective business relations are (i) business relations with a third party, (ii) the defendant’s interference with those business relations, (iii) using harmful means or with the sole purpose of harming the plaintiff, (iv) resulting in injury to the business relationship (Guard-Life Corp. v S. Parker Hardware Mfg. Corp., 50 NY2d 183 [1990]; Carvel v Noonan, 3 NY3d 182, 190 [2004]). 652352/2018 WIKKED ENTERTAINMENT, INC. vs. BURBACKI, ZARINA Page 5 of 7 Motion No. 002 5 of 7 FILED: NEW YORK COUNTY CLERK 08/16/2019 10:01 AM INDEX NO. 652352/2018 NYSCEF DOC. NO. 49 RECEIVED NYSCEF: 08/16/2019 The counterclaim alleges that Ms. Stolper falsely accused Ms. Burbacki of conspiring with MC’s assistant, Ms. Shaknazarian, to extort or humiliate MC, thereby interfering with and ultimately causing the termination of Ms. Burbacki’s business relationship with MC (Counterclaim ¶¶ 185- 192). The statement was allegedly sent by Ms. Stolper’s assistant, Mr. Stevens, at Ms. Stolper’s direction, to MC’s head of security, Mr. Mack (id., ¶ 166). The counterclaim alleges that Ms. Stolper caused the letter to be delivered to Mr. Mack because she “knew that [Mr. Mack] would then present the letter to MC” (id., ¶ 168). The problem with these facts as alleged is that there is no allegation in the counterclaim to indicate that MC actually received the letter or ever learned of its contents or that the relationship with MC was damaged as a result of the letter – i.e., it fails to allege that Ms. Stolper interfered with Ms. Burbacki’s business relations with MC or that any resulting injury to such relationship was caused by Ms. Stolper’s actions. Accordingly, the fourth counterclaim for tortious interference with business relations is dismissed without prejudice. Accordingly, it is ORDERED that Stella Stolper’s motion to dismiss the second, third, and fourth counterclaims of Zarina Burbacki pursuant to CPLR §§ 3211 (a) (7) and 3016 (a) is granted to the extent that the third and fourth counterclaims are dismissed without prejudice and it otherwise denied; and it is further ORDERED that Stella Stolper’s motion for a more definite statement regarding the first counterclaim pursuant to CPLR § 3024 is granted. 652352/2018 WIKKED ENTERTAINMENT, INC. vs. BURBACKI, ZARINA Page 6 of 7 Motion No. 002 6 of 7 FILED: NEW YORK COUNTY CLERK 08/16/2019 10:01 AM INDEX NO. 652352/2018 NYSCEF DOC. NO. 49 RECEIVED NYSCEF: 08/16/2019 8/14/2019 DATE CHECK ONE: CASE DISPOSED X NON-FINAL DISPOSITION GRANTED DENIED X GRANTED IN PART OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE 652352/2018 WIKKED ENTERTAINMENT, INC. vs. BURBACKI, ZARINA Page 7 of 7 Motion No. 002 7 of 7