Opinion
No. 5593/2014.
09-02-2014
Henry YU QING WANG, Plaintiff, v. WAI KAM WONG, Defendant.
Opinion
The following papers numbered 1 to 12 were read on this order to show cause brought by the plaintiff seeking a temporary restraining order and a preliminary injunction restraining the defendant, WAI KAM WONG, from making any defamatory statements against the plaintiff, HENRY YU QING WANG, or his business, Zhiqing Social Day Care, Inc., to any third-party or in a public place or to any reporter or media writer for the purpose of publication:
| Papers | |
|---|---|
| Numbered | |
| Order to Show Cause–Affirmation–Exhibits | 71–5 |
| Affirmation in Opposition–Affidavits–Exhibit | 76–9 |
| Reply Affirmation | 10–12 |
In this action for damages due to defamation, plaintiff, Henry Yu Qing Wang, states that he is the President of Zhiqing Social Day Care, Inc. The closely held corporation was organized in the State of New York in January 2013 for the purpose of operating as a senior day care center and is governed and administered by its Board of Directors. Plaintiff asserts that he provided funds to the Company and purchased a majority and controlling interest in the Company. The defendant, Wai Kam Wong also purchased shares in the Company. The Company opened for business in September 2013 at 135–25 Northern Boulevard, Flushing, New York. The plaintiff states that after the opening, multiple disputes arose between plaintiff in his role of President of the Day Care Center and the defendant, the Treasurer and Secretary of the Company, over business issues such as hiring and other policy matters. As a result of the disagreements and because he learned that the defendant had been disparaging him and accusing him of improper behavior, plaintiff, as President and majority shareholder, removed the defendant on December 15, 2013 from her position as a member of the Board of Directors and from her position as Secretary and Treasurer.
Plaintiff states that two days later, on December 17, 2013, defendant held a press conference with reporters from various mandarin language newspapers which serve the Chinese–American community in Flushing, New York. At the press conference the defendant allegedly stated that the plaintiff misrepresented the amount of money he invested in the Day Care Center, that he had not invested any of his own money but only other people's money, and that he failed to report adequate information to the Board of Directors. On December 18, 2013, various articles appeared in mandarin language papers regarding “Disputes Among Shareholders at the Adult Center.” Plaintiff states that the newspapers published the inaccurate and untruthful accusations that were made by the defendant. He states that following the publication of the articles he noticed substantial numbers of cancellations by regular customers which resulted in a substantial loss of ongoing business as well as potential investors who decided not to invest. On February 8, 2014, at a meeting of the Board of Directors, the defendant was removed from the Board and from her role as Treasurer and Secretary. Plaintiff asserts that thereafter, on March 28, 2014, the defendant displayed posters in front of the Main Street Branch of the public library and on the front steps of Queens Criminal Court containing false accusations against the plaintiff and accused him of cheating the Association out of money. On March 29, 2014, certain articles appeared in the local newspapers reporting on the defendant's claims that the plaintiff was illegally collecting monies.
On April 9, 2014, the plaintiff commenced an action against the defendant seeking a permanent injunction and monetary and punitive damages for defamation. On April 30, 2014 the defendant served a verified answer with affirmative defenses and counterclaims for breach of fiduciary duty, fraudulent inducement, tortious interference with business relations, and common law fraud. Plaintiff served a reply to the counterclaims on June 3, 2014.
In the instant motion, plaintiff seeks a preliminary injunction enjoining the defendant from making any defamatory statements against the plaintiff, Henry Yu Qing Wang, or his business, Zhiqing Social Day Care, Inc., to any third-party or in a public place or to any reporter or media writer for the purpose of publication. Counsel asserts that due to the immediate and irreparable injury to his business as a result of the defendant's defamatory remarks, he is entitled to a preliminary injunction pending the resolution of the complaint.
In opposition to the motion, defendant's counsel, Edmond W. Wong, Esq., contends that the motion for a preliminary injunction should be denied as the plaintiff has failed to meet the necessary elements delineated in CPLR 6301. Counsel also requests that the temporary restraining order be vacated pursuant to CPLR 6313.
The defendant submits an affidavit in support of the opposition stating that the Zhiqing Association was organized to support elderly Chinese immigrants who worked under hardship conditions in labor camps during the Chinese Cultural Revolution from 1962 through 1979. She states that the organization has 375 elderly members. She states that in April 2013, the plaintiff stated that he would match the members' $300,000 contribution to help build a permanent Zhiqing senior home/daycare center for the members. Defendant claims that renovations were made to the center at a cost of $610,000 and that the plaintiff failed to disclose whether he personally contributed to the establishment of the center. She stated that when she voiced her concerns, the plaintiff, as President and majority share holder, removed her from the Board of Directors. She states that to this date the plaintiff has not accounted for, nor shown proof as to how the members contributions were used. She states that the plaintiff abused his power in unilaterally removing her from her position as Treasurer, Secretary, and Director of the organization. She states that she did not make disparaging remarks to plaintiff's friends or neighbors. She states that her remarks are protected by the defense of truth and qualified privilege. She states that there was a press conference held on December 17, 2013 at which she did not make any disparaging or defamatory remarks. Further, she claims that the newspaper articles do not reference any remarks specifically made by her. Defendant also claims that the plaintiff has failed to identify with particularity the time place and to whom she made the remarks.
With respect to plaintiff's request for a preliminary injunction, CPLR 6301 states that:
“A preliminary injunction may be granted in any action where it appears that the defendant threatens or is about to do, or is doing or procuring or suffering to be done, an act in violation of the plaintiff's rights respecting the subject of the action, and tending to render the judgment ineffectual, or in any action where the plaintiff has demanded and would be entitled to a judgment restraining the defendant from the commission or continuance of an act, which, if committed or continued during the pendency of the action, would produce injury to the plaintiff.”
In order to demonstrate entitlement to a preliminary injunction, the movant must establish (1) a probability of success on the merits, (2) the danger of irreparable harm in the absence of injunctive relief, and (3) a balance of the equities in favor of the movant (see Greystone Staffing, Inc. v. Warner, 106 AD3d 954 [2d Dept.2013] ; Wheaton/TMW Fourth Ave., LP v. New York City Dept. of Bldgs., 65 AD3d 1051 [2d Dept.2009] ; Matter of Advanced Digital Sec. Solutions, Inc. v. Samsung Techwin Co., Ltd., 53 AD3d 612 [2d Dept.2008] ). “A court evaluating a motion for a preliminary injunction must be mindful that the purpose of a preliminary injunction is to maintain the status quo, not to determine the ultimate rights of the parties (Masjid Usman, Inc. v. Beech 140, LLC, 68 AD3d 942 [2d Dept.2009] ; also see Matter of Wheaton/TMW Fourth Ave., LP v. New York City Dept. of Bldgs., 65 AD3d 1051 [2d dept.2009] ; Coinmach Corp. v. Alley Pond Owners Corp., 25 AD3d 642 [2d Dept.2006] ).
Here, this court finds that the plaintiff has failed to show a likelihood of ultimate success on the merits by clear and convincing evidence (see Gluck v. Hoary, 55 AD3d at 668 [2d Dept.2008] ; Apa Sec., Inc. v. Apa, 37 AD3d 502 [2d Dept.2002] ). The plaintiff has failed to clearly demonstrate that the defendant made false remarks, that they were made negligently or that they were not protected by the defense of truth or qualified immunity. Further, the plaintiff has failed to provide any actual evidence other than conclusory statements that he has suffered loss of business or loss of investors. A preliminary injunction is not appropriately issued where the irreparable harm claimed is remote or speculative or where it is economic in nature (see County of Suffolk v. Givens, 106 AD3d 943 [2d Dept.2013] ; Rowland v. Dushin, 82 AD3d 738 [2d Dept 2011] [the plaintiffs failed to point to any imminent and nonspeculative harm that would befall them in the absence of the requested relief, and failed to demonstrate that any injuries they would suffer would not be compensable by money damages]; Family–Friendly Media, Inc. v. Recorder Tel. Network, 74 AD3d 738 [2d Dept 2010] ). This Court finds that the plaintiff's assertions as to loss of business are speculative at best and such loss, if proven, is capable of monetary compensation.
Furthermore, a balancing of the equities does not favor restraining the defendant's first amendment rights of free speech. The plaintiff has not shown that any injury he is likely to sustain will be more burdensome to him than the harm likely to be caused to the defendant. To restrain the defendant's statements at this time would constitute a prior restraint on free speech (see Rose v. Levine, 37 AD3d 691 [2d Dept.2007] ; Rombom v. Weberman, 309 A.D.2d 844 [2d Dept.2003] ; Rosenberg Diamond Dev. Corp. v. Appel, 290A.D.2d 239 [1st Dept.2002][prior restraints are not permissible merely to enjoin the publication of libel] ).
Lastly, the courts have held that “absent extraordinary circumstances, injunctive relief should not be issued in defamation cases (see Rombom v. Weberman, 309 A.D.2d 844 [2d Dept.2003] ). Where there is no evidence of a sustained campaign to interfere with the plaintiff's business by the use of false statements, a claim for injunctive relief does not lie (see LoPresti v. Florio, 71 AD3d 574 [1st Dept.2010] ). Here, the plaintiff failed to demonstrate the existence of extraordinary circumstances or that the objectionable speech is pursuant to a course of conduct deliberately carried on to further a fraudulent or unlawful purpose [see Long Is. Assn. for Aids Care, Inc. v. Jacinto, 43 Misc.3d 1204(A)[Sup Ct. Suffolk Co.2014] ).
Accordingly, for all of the above stated reasons, it is hereby, ORDERED, that plaintiff's motion for a preliminary injunction is denied. The temporary restraining order contained in the order to show cause dated May 27, 2014, is hereby vacated.