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International Commercial Transactions & Litigation Law Blog

Sunday, February 15, 2015

Defamation claims against commercial clients dismissed.

Marzano Lawyers PLLC’s litigation group prevailed in its motion to dismiss defendants’ counterclaims of defamation against its commercial client.  Defendant’s defamation counterclaims were premised on an article which appeared in the New York Post which discussed the underlying lawsuit and contended that the parties' relationship "soured" when defendants allegedly began harassing Jewish guests.

The lower court held that Marzano Lawyers PLLC’s clients alleged statements in their complaint regarding the defendants' behavior toward Jewish customers were privileged as they related to the litigation, thus the republication could not give rise to a defamation claim.  The lower court further found that defendants failed to plead their counterclaim for defamation with sufficient particularity.  The Court also noted that Civil Rights Law §74 protected statements made to a newspaper as "fair and true reports of a judicial proceeding."

The full decision in  Ibragimov v Sessa, 39 Misc 3d 1214(A) [Sup Ct 2013]  follows below:

 

2013 NY Slip Op 50616(U)

ABA IBRAGIMOV, GLATT GOURMET CORP., GLATT GOURMET CUISINE, INC., AND FIVE GUYS CATERING, INC., Plaintiffs,
v.
LEONARD SESSA, ROBERT LEONARD SESSA, LEONARDS OF GREAT NECK, S & M CATERING, DA MIKELLE, INC., DA MIKELLE CATERERS, INC., DA MIKELLE CATERERS CORP., ILYA ZAVOLUNOV, AND MICHAEL ZAVOLUNOV, Defendants.

651008/11.

Supreme Court, New York County.

Decided April 4, 2013.

Alexander Sediva, Esq., Naved Amed, Esq., AmedLaw, 65 Broadway, 7th Floor, New York, NY 10006, 212-537-6816, for plaintiffs.

Kenneth C. Murphy, Esq., Jonathan Stern, Esq., Simon & Partners, LLP, 551 Fifth Avenue, New York, NY 10176, 212-332-8900, for Leonard defendants.

BARBARA JAFFE, J.

By notice of motion dated June 25, 2012, plaintiffs move pursuant to CPLR 3211(a)(7) and 22 NYCRR 130-1.1. for an order dismissing a counterclaim brought against them by defendants Leonard Sessa, Robert Leonard Sessa, Leonards of Great Neck et al, S & M Caterers, Inc., s/h/a S & M Catering, Inc. (Leonard defendants), and sanctioning them for interposing it. Leonard defendants oppose.

I. BACKGROUND

In the early 1990s, plaintiffs, kosher caterers, and Leonard Sessa, owner of Leonards of Great Neck, a Long Island event space, allegedly agreed that plaintiffs would be the space's exclusive kosher caterer. (Affirmation of Alexander Sediva, Esq., dated June 25, 2012, Exh. A). Plaintiffs catered events for Leonard defendants until early 2010, when defendants DaMikelle, Inc., Da Mikelle Caterers, Inc., and Da Mikelle Caterers Corporation began providing kosher catering services to them. (Id.).

On or about April 15, 2011, plaintiffs commenced the instant action with the filing of a summons and verified complaint, asserting claims against Leonard defendants for breach of implied contract, breach of implied partnership, conversion, unjust enrichment, prima facie tort, and deceptive trade practices pursuant to General Business Law § 350. (Id.). In paragraph 32 of the complaint, plaintiffs allege the following:

Since 2008, the Leonard Defendants (Lenny and Bobby) have surreptitiously engaged in various tactics to sabotage the Contract and/or Partnership including: 1) instructing their employees to be rude to Jewish guests at events; 2) not allowing Jewish guests to pray in the Lenny's Catering Hall; 3) instructing their employees to spill drinks on Jewish guests at events; 4) removing Mezuzahs on the doors at Lenny's Catering Hall; and 5) calling the police to raid events with false claims of illegal activity.

(Id.).

On April 24, 2011, an article, entitled "Moneymoon over for banquet foes," was published in the New York Post, reflecting, inter alia, that the relationship between plaintiffs and Leonard defendants "soured in 2008, when the banquet hall allegedly began harassing Jewish guests, [plaintiff Aba] Ibragimov claims in a lawsuit filed last week," and that [Leonard] Sessa and his son and co-owner, Robert, began telling employees to be rude to Jewish guests at events,' and to spill drinks on Jewish guests,' the caterer alleges." (Id., Exh. D).

On or about June 27, 2011, Leonard defendants joined issue with service of their answer, asserting, inter alia, a counterclaim for defamation in which they allege the following:

On or about April 15, 2011, the Plaintiffs filed a Complaint that stated that the Defendants engaged in anti-semitic conduct.

On or about April 24, 2011, the Plaintiffs repeated these allegations to the New York Post.

These statements are knowingly false, grossly irresponsible and without due consideration for the standards of information gathering and dissemination ordinarily followed by responsible parties.

The Defendants suffered damage to their reputations and business as a result of these false statements.

(Id., Exh. B).

By decision and order dated April 13, 2012, the justice previously assigned to this matter granted defendants summary judgment on plaintiffs' claims and severed Leonard defendants' counterclaim as no party had addressed it. (Id., Exh. C).

II. CONTENTIONS

Plaintiffs claim that the statements in their complaint about Leonard defendants' behavior toward Jewish customers are privileged, as they relate to the litigation, and thus, that their republication in the New York Post may not give rise to a defamation claim. (Pl. Mem. of Law). Additionally, they note that Leonard defendants do not plead their counterclaim with sufficient particularity. (Id.). They thus argue that Leonard defendants' counterclaim is frivolous and that they should be sanctioned. (Id.).

In opposition, Leonard defendants deny that the statements are related to the litigation, alleging instead that the reasons for the termination of their business relationship with plaintiffs are not at issue, and maintain that plaintiffs included the statements in affidavits submitted to the court on prior motions solely to harass and injure them. (Leonard Def. Mem. of Law in Opp.). They also deny that the statements made to the press are privileged, and that their counterclaim is frivolous. (Id.).

In reply, plaintiffs contend that the statements are privileged, as they had no contact with the media, and defendants have failed to allege or prove same. (Pl. Reply. Mem. of Law).

III. ANALYSIS

A. Defamation counterclaim

Pursuant to CPLR 3211(a)(7), a party may move to dismiss a pleading for failure to state a claim. In deciding the motion, the court must liberally construe the pleading, "accept the alleged facts as true, accord [the non-moving party] the benefit of every possible favorable inference, and determine only whether the alleged facts fit within any cognizable theory." (Leon v Martinez, 84 NY2d 83, 87 [1994]).

To plead a defamation claim adequately, a party must include the "particular words complained of" (CPLR 3016[a]), the time, place, and manner of publication, and the person to whom it was published (Glazier v Harris, 99 AD3d 403 [1st Dept 2012]; Epifani v Johnson, 65 AD3d 224 [2d Dept 2009]; Dillon v City of New York, 261 AD2d 34 [1st Dept 1999]). To state a claim for defamation, a party must allege "a false statement, published without privilege or authorization to a third party, constituting fault as judged by, at a minimum, a negligence standard, and ... caus[ing] special harm or constitut[ing] defamation per se." (O'Neill v New York Univ., 97 AD3d 199, 212 [1st Dept 2012]; Salvatore v Kumar, 45 AD3d 560, 563 [1st Dept 2007], lv denied 10 NY3d 703 [2008]).

Here, Leonard defendants do not specify the defamatory words allegedly used by plaintiffs. Rather, they refer generally to plaintiffs' allegation in the complaint that they engaged in anti-semitic conduct, and describe neither the manner and location of plaintiffs' publication to the New York Post nor the person to whom the statement was published. Accordingly, they fail to plead their counterclaim with sufficient particularity. (See Nesathurai v Univ. at Buffalo, 23 AD3d 1070 [4th Dept 2005] [defendants failed to plead counterclaim for defamation in "merely paraphras[ing] and otherwise referr[ing] to allegations in and attachments to the complaint without specifying any of the alleged defamatory words or the circumstances in which they were made"]; see also BCRE 230 Riverside LLC v Fuchs, 59 AD3d 282 [1st Dept 2009] [where defendant alleged that plaintiff and/or his agents or attorneys made false statements to New York Post reporter "and that, as a result, he caused an article to be written repeating the false and defamatory words," his "reliance on the text of a third party's paraphrasing of plaintiff's allegedly false statements" and his failure to specify who made them warranted dismissal of defamation counterclaim]).

Moreover, the statements are pertinent to the action, at least within the meaning of the term "pertinent" in this context. (See Sexter & Warmflash, P.C. v Margrabe, 38 AD3d 163, 173 [1st Dept 2007] [the test for pertinence is "extremely liberal": a statement is protected "if, by any view or under any circumstances, it may be considered pertinent to the litigation"]). And, to the extent that the statements were made by plaintiffs to the Post, they remain privileged by virtue of Civil Rights Law § 74, which protects such statements as "fair and true report[s] of [a] judicial proceeding." (See Lacher v Engel, 33 AD3d 10 [1st Dept 2006] ["[c]omments that essentially summarize or restate the allegations of a pleading" are privileged pursuant to section 74]).

B. Sanctions

I decline to sanction Leonard defendants; the counterclaim is not frivolous.

IV. CONCLUSION

Accordingly, it is hereby

ORDERED, that plaintiffs'motion for an order dismissing defendants Leonard Sessa, Robert Leonard Sessa, Leonards of Great Neck et al, S & M Caterers, Inc., s/h/a S & M Catering, Inc.'s counterclaim is granted; it is further

ORDERED, that plaintiffs' motion for an order sanctioning defendants Leonard Sessa, Robert Leonard Sessa, Leonards of Great Neck et al, S & M Caterers, Inc., s/h/a S & M Catering, Inc. is denied; and it is further

ORDERED, that this matter is dismissed in its entirety.

 

The previous case is posted for informative purposes only.  The posting of this case does not in any way reflect Marzano Lawyers PLLC’s legal opinion or view on the underlying New York or Italian legal matter. 




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