Opinion
13382 Index No. 452016/18 Case No. 2019-05446
02-18-2021
Peter CEDENO et al., Plaintiffs–Respondents, v. Atesa PACELLI et al., Defendants–Appellants, John Does, etc., et al., Defendants.
Abrams, Fensterman, Fensterman, Eisman, Formato, Ferrara, Wolf & Carone, LLP, Brooklyn (Justin T. Kelton of counsel), for Atesa Pacelli, appellant. Wade Clark Mulcahy LLP, New York (Shira T. Straus of counsel), for Anthony Pacelli, appellant. Daniel Szalkiewicz & Associates, P.C., New York (Daniel Szalkiewicz of counsel), for respondents.
Abrams, Fensterman, Fensterman, Eisman, Formato, Ferrara, Wolf & Carone, LLP, Brooklyn (Justin T. Kelton of counsel), for Atesa Pacelli, appellant.
Wade Clark Mulcahy LLP, New York (Shira T. Straus of counsel), for Anthony Pacelli, appellant.
Daniel Szalkiewicz & Associates, P.C., New York (Daniel Szalkiewicz of counsel), for respondents.
Acosta, P.J., Gische, Webber, Gonza´lez, JJ.
Order, Supreme Court, New York County (Margaret A. Chan, J.), entered September 5, 2019, as amended by stipulation entered October 31, 2019, which, to the extent appealed from as limited by the briefs, denied defendants the Pacellis' motions to dismiss the causes of action for libel, trade libel, aiding and abetting defamation, and vicarious liability as against them, unanimously modified, on the law, to dismiss the cause of action for trade libel with leave to replead the claim with respect to special damages, and otherwise affirmed, without costs.
The motion court correctly found that the amended complaint sufficiently set forth the material elements of a cause of action for defamation and gave adequate notice of the transactions and occurrences that plaintiffs intended to prove at trial. The Pacellis' attempt to distinguish Fletcher v. Dakota, Inc., 99 A.D.3d 43, 948 N.Y.S.2d 263 (1st Dept. 2012) on the ground that that case involved only six individuals who allegedly made defamatory statements, compared to "any number of unknown persons " in the instant case, is unpersuasive. Plaintiffs' failure to specify exactly what words were spoken by which principal is not fatal to the claim, since the amended complaint contains the dates, text, context, URLs, and other information about the defamatory statements and alleges that the Pacellis were responsible for authoring, publishing, or causing others to publish them (see Torres v. Prime Realty Servs., 7 A.D.3d 343, 775 N.Y.S.2d 865 [1st Dept. 2004] ). There are no allegations that the John Does acted independently of the Pacellis. Having been able to piece together parts of the Pacellis' alleged scheme, plaintiffs should not be penalized at this pre-answer, pre-discovery stage for not being able to identify the name of each and every person who allegedly posted defamatory content at the behest of the Pacellis.
The court correctly declined to dismiss the aiding and abetting defamation claim (see generally William Doyle Galleries, Inc. v. Stettner, 167 A.D.3d 501, 503, 91 N.Y.S.3d 13 [1st Dept. 2018] ) and the vicarious liability claim (see Art Fin. Partners, LLC v. Christie's Inc., 58 A.D.3d 469, 471, 870 N.Y.S.2d 331 [1st Dept. 2009] ).
Plaintiffs allegations that, upon information belief, they "lost multiple clients based on the series of websites published by the Pacellis and John Does" and that they "have had to pay expenses to protect their reputation, including an online reputation management and monitoring company and attorneys" are insufficient to plead the special damages element of trade libel (see Waste Distillation Tech. v. Blasland & Bouck Engrs., 136 A.D.2d 633, 633, 523 N.Y.S.2d 875 [2d Dept. 1988] ). However, we grant plaintiffs leave to replead the claim with respect to special damages (see Franklin v. Daily Holdings, Inc., 135 A.D.3d 87, 93, 21 N.Y.S.3d 6 [1st Dept. 2015] ).
We have considered the Pacellis' remaining arguments to the extent they are preserved for appellate review and find them unavailing.