Opinion
Index No. 152270/2023 Motion Seq. No. 001
01-19-2024
CHIBAOLA, INC., Plaintiff, v. YONG FENG SITU, JESSY MANGAHAS, YING YING YUAN, JOHN DOE Defendants.
Unpublished Opinion
Motion Date 05/15/2023
PRESENT: HON. DAKOTA D. RAMSEUR, Justice
DECISION + ORDER ON MOTION
HON. DAKOTA D. RAMSEUR, JUSTICE
The following e-filed documents, listed by NYSCEF document number (Motion 001) 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23 were read on this motion to/for DISMISS.
Plaintiff, Chibaola, Inc. (plaintiff), commenced this action for defamation against defendants, Yong Feng Situ, Jessy Mangahas, and Ying Ying Yuan (collectively, defendants), stemming from defendants alleged defamatory statements made statements concerning the uncleanliness of the kitchen and staff of plaintiff's restaurant, Uluh. Defendants now move pursuant to CPLR 3211(a)(1) and (7) to dismiss the complaint and pursuant to the Civil Rights Law (CVR) § 70-A(c) for punitive damages. The motion is opposed. For the following reasons, the motion is granted.
Factual Background
Plaintiff is a New York domestic corporation with its primary place of business in New York where it operates a restaurant called "Uluh." Defendants were workers at Uluh. Plaintiff alleges that defendants made certain defamatory comments about Uluh and relayed those comments to Sing Tao Daily, a Chinese-language news outlet, which then published those comments resulting in damage to plaintiff. The complaint alleges that defendants made six defamatory claims which were published in Sing Tao Daily: that "Uluh has cockroaches and other hygiene problems;" that "a friend of the defamer had to go a hospital emergency room after eating at Uluh with the connotation that the need to go to the emergency room was a consequence of eating at Uluh;" that "Uluh has 'really serious hygiene issues which both caused it to close and which continued after Uluh reopened;" that "kitchen employees of Uluh were not wearing shoes in Uluh;" that "kitchen employees of Uluh served food that had touched the floor;" and that "kitchen employees of Uluh touched their bare feet and then worked with food without washing their hands" (NYSCEF doc. no. 10 at ¶8).
Plaintiff alleges that two unidentified persons referred to only as "Confidential Informant 1" and "Confidential Informant 2" relayed to plaintiff that defendants were making these statements to harm plaintiff-these informants were allegedly approached by defendants to recruit them in their efforts but they instead notified plaintiff Plaintiff alleges that the articles published in Sing Tao Daily on September 7, 2022, and September 8, 2022, based upon these statements, caused a significant reduction in income at Uluh due to customers no longer eating at Uluh. Plaintiffs complaint states that the lost income totals "not less than $1,500,000.00" (id. at ¶18).
Discussion
"In assessing the adequacy of a complaint under CPLR 3211(a)(7), the court must give the pleading a liberal construction, accept the facts alleged in the complaint to be true and afford the plaintiff 'the benefit of every possible favorable inference'" (J.P. Morgan Sec. Inc. v Vigilant Ins. Co., 21 N.Y.3d 324, 334 [2013] [citations omitted]). "[I]f from its four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law a motion for dismissal will fail" (see African Diaspora Mar. Corp, v Golden Gate Yacht Club, 109 A.D.3d 204, 211 [1st Dept 2013] [internal quotation marks and citations omitted]). "Whether a plaintiff can ultimately establish its allegations is not part of the calculus" (Trump Vil. Section 4, Inc. v Bezvoleva, 161 A.D.3d 916, 917 [2d Dept 2018] [internal quotation marks and citations omitted]).
" 'A motion pursuant to CPLR 3211(a)(1) to dismiss the complaint on the ground that the action is barred by documentary evidence may be granted only where the documentary evidence utterly refutes the plaintiffs factual allegations, thereby conclusively establishing a defense as a matter of law'" (Buchanan v Law Offs, of Sheldon E. Green, P.C., 215 A.D.3d 790, 791 [2d Dept 2023], quoting Mawere v Landu, 130 A.D.3d 986, 987 [2d Dept 2015]). "While a court is 'permitted to consider evidentiary material submitted by a defendant in support of a motion to dismiss pursuant to CPLR 3211(a)(7),' where the motion is not converted to one for summary judgment, 'the criterion is whether the [plaintiff] has a cause of action, not whether he has stated one, and .. . unless it can be said that no significant dispute exists regarding it . . . dismissal should not eventuate'" (Anzora v 81 Saxon Ave. Corp., 146 A.D.3d 848, 849 [2d Dept 2017], quoting Sokol v Leader, 74 A.D.3d 1180, 1181 [2d Dept 2010]) and Guggenheimer v Ginzburg, 43 N.Y.2d 268, 275 [1977]).
The elements of a cause of action to recover damages for defamation are: (1) a false statement that tends to expose a person to public contempt, hatred, ridicule, aversion, or disgrace, (2) published without privilege or authorization to a third party, (3) amounting to fault as judged by, at a minimum, a negligence standard, and (4) either causing special harm or constituting defamation per se (Stepanov v Dow Jones &Co., 120 A.D.3d 28, 34 [1st Dept 2014]). Defendants argue that plaintiff failed to properly allege actionable defamation and that the submitted documentary evidence refutes any such claim.
Here, accepting the allegations in the complaint as true at this stage, plaintiff has alleged that the false statements were published without privilege or authorization that could be determined to amount to fault to meet a negligence standard causing special harm to plaintiff. Defendants deny that there was a conspiracy to harm plaintiff and deny that they made the alleged statements to the confidential informants, while noting that plaintiff has thus far refused to name said informants and that plaintiff has not submitted the articles supposedly published on September 7, 2022 and September 8,2022. Furthermore, defendants assert that there are no articles and notes that the only relevant article that defendants could identify-a September 10, 2022 article-does not contain most of the alleged statements or provides sources other than the defendants for those statements. Defendants further assert that any reduction in business to Uluh was primarily caused by the New York Department of Health and Mental Hygiene issuing a 48-point violation against Uluh on September 7, 2022, and a further 7-point violation on September 9, 2022. Defendants note that these violations were published for public consumption by a closure notice posted on Uluh's door and that a photo of that notice was later included in Sing Tao Daily-which defendants argue makes causation difficult to establish for any damages that ensued thereafter. Defendants also dispute that any harm caused would have resulted in "not less than $1,500,000.00" and argues that plaintiff provides no support for this amount. All of defendants' assertions are factual in nature and "[i]n assessing the adequacy of a complaint under CPLR 3211(a)(7), the court must...accept the facts alleged in the complaint to be true and afford the plaintiff 'the benefit of every possible favorable inference'" (J.P. Morgan Sec. Inc., 21 N.Y.3d at 334 [citations omitted]). Furthermore, defendants' arguments relating to the difficulty plaintiff may encounter in establishing causation or damages go to whether plaintiff can ultimately establish its allegations but "[w]hether a plaintiff can ultimately establish its allegations is not part of the calculus" in a motion to dismiss (Trump Vil. Section 4, 161 A.D.3d at 917).
Defendants next argue that plaintiffs claims for defamation should be dismissed because they fall within the scope of the anti-SLAPP law, this matter is not purely private in that it is within the public interest that the Anti-SLAPP law intends to protect. Where an action involves the public interest, "unless the party responding to [a motion to dismiss] demonstrates that the cause of action has a substantial basis in law or is supported by a substantial argument for an extension, modification or reversal of existing law" (CPLR 3211 [g]). "[T]to withstand dismissal under CPLR 3211(g)(1), the claims pleaded must have 'a substantial basis in law,' which requires 'such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact'" (Smartmatic USA Corp, v Fox Corp., 213 A.D.3d 512, 512 [1st Dept 2023], quoting Golby v N & P Engrs. & Land Surveyor, PLLC, 185 A.D.3d 792, 793-794 [2d Dept. 2020]). In adjudicating a motion to dismiss a SLAPP action, the court must consider the pleadings and supporting and opposing affidavits (CPLR § 3211[g][2]).
"The dispositive question here is...whether [the speech was] made 'in connection with an issue of public interest.'" See Aristocrat Plastic Surgery P.C. v Silva, 206 A.D.3d 26, 29 (1st Dept 2022) (quoting CRL § 76-a[l][a][1 ];[d]). The court m Aristocrat held as follows:
"New York courts have generally applied a broad interpretation to what constitutes a matter of public concern. Matters of public concern include matters of political, social, or other concern to the community, even those that do not affect the general population. When determining whether content is within the sphere of legitimate public concern, allegedly defamatory statements can only be viewed in the context of the writing as a whole and courts must examine the content, form, and context of the statements. Statements falling into the realm of mere gossip and prurient interest are not matters of public concern nor are publications directed only to a limited, private audience."(id. at 29-30 [citations and internal quotation marks omitted]).
Here, the hygiene of a restaurant serving the public falls within the scope of matters of public concern as interpreted by New York courts since the anti-SLAPP law was amended in 2020 (see id.; see, e.g., Great Wall Med. P.C. v Levine, 74 Mise 3d 1224[A] [Sup Ct, NY County 2022]). As defendants have established that the subject defamatory statements involve "public petition and participation" under § 76-a, the Court turns to whether plaintiff has demonstrated a substantial basis in law for its claims. The Court holds that plaintiff demonstrates a substantial basis in law for its claims. The verified complaint alleges that defendants were involved in a scheme to discredit and harm plaintiffs restaurant by making false claims about the restaurant's sanitary conditions involving the kitchen and the preparation of food. Plaintiff further allege that defendants attempted to recruit two additional employees to join their scheme to discredit Uluh. but they both rejected the offer, and instead informed plaintiff of the scheme and defendants' intention to harm the restaurant.
Defendants' motion for punitive damages pursuant to CVR § 70-A(c) is also denied as it is premature and not all of the requisite factors have been established at this stage. Defendants are, however, permitted to proceed with such requests for relief. Plaintiffs assertion that this matter does not implicate the "Anti-SLAPP" legislation or that such claims may not be made in a motion to dismiss are without merit. "SLAPP suits-strategic lawsuits against public participation- . . . are characterized as having little legal merit but are filed nonetheless to burden opponents with legal defense costs and the threat of liability and to discourage those who might wish to speak out in the future" (600 W. 115th St. Corp, v Von Gutfeld, 80 N.Y.2d 130, 137, nl [1992]). As such, defendants may proceed with seeking to recover under anti-SLAPP legislation if properly plead, but defendants have not at this stage established the crucial element of such litigation-that this matter is of "little legal merit but [was] filed nonetheless to burden opponents with legal defense costs and the threat of liability and to discourage those who might wish to speak out in the future" (600 W 115th St. Corp., 80 N.Y.2d at 137, nl [1992]).
Defendants further argue that documentary evidence refutes the allegations made in the complaint and have submitted extensive documentary evidence in support-including a September 10, 2022 article in Sing Tao Daily and the health notice relating to Uluh. However, the submitted documentary evidence does not "utterly refut[e] the plaintiffs factual allegations" or "conclusively establish[h] a defense as a matter of law" (Buchanan, 215 A.D.3d at 791 [internal quotation marks and citations omitted]). For example, defendants submit the health notice posted by the city, but the existence of this notice does not refute plaintiffs claim that defendants are the cause of damages.
Defendants further argue that the September 10, 2022 article in Sing Tao Daily does not comport with the allegations in the complaint but plaintiff has asserted that articles on September 7, 2022 and September 8, 2022 do. "[W]here the complaint itself does not attach as an exhibit... the relevant medium in which the allegedly defamatory statement is contained, the defendant may submit such copy ... to aid the court in determining whether the complaint states a cause of action" (Greenberg v Spritzer, 155 A.D.3d at 44). Here, however, defendants have submitted a separate article while asserting that the articles cited in the complaint do not exist. Plaintiff has failed to submit the articles that supposedly exist, but it is not necessary for them to do so to survive a motion to dismiss and the court must give plaintiff "every possible favorable inference" in a motion to dismiss (see J.P. Morgan Sec. Inc., 21 N.Y.3d at 334 [internal quotation marks and citations omitted]). Accordingly, the branches of defendants' motion to dismiss plaintiff's claims for defamation and defamation per se pursuant to CPLR 3211(a)(1) and (a)(7) are denied.
Defendants next argue that plaitniff fails to state a claim for tortious interference, as plaitniff failed to allege that it had a business relationship with a third party that defendants actions interfered with. "To state a cause of action for tortious interference with prospective business advantage, it must be alleged that the conduct by defendant that allegedly interfered with plaintiffs prospects either was undertaken for the sole purpose of harming plaintiff, or that such conduct was wrongful or improper independent of the interference allegedly caused thereby" (Jacobs v Continuum Health Partners, Inc., 7 A.D.3d 312, 313 [1st Dept 2004]). Here, the complaint alleges that defendants acted intentionally and maliciously by making the alleged defamatory statement, causing plaintiffs business to decrease as a result. However, plaintiffs claim for tortious interference is duplicative of its claim for defamation, as plaitniff alleges identical facts and seeks identical damages for both claims (see Perez v Violence Intervention Program, 116 A.D.3d 601, 602 [1st Dept 2014] ["The remaining claims of . . . tortious interference with prospective contractual/business relations, . . . should have been dismissed as duplicative of the defamation claim, as they allege no new facts and seek no distinct damages from the defamation claim"]). Accordingly, the branch of defendants' motion pursuant to CPLR 3211(a)(7) to dismiss plaintiffs claim for tortious interference is granted.
Accordingly, it is hereby, ORDERED defendants' motion is granted to the extent that plaintiff s claim for tortious interference is dismissed for failure to state a claim; and it is further
ORDERED that defendants shall file an answer within twenty (20) days; and it is further
ORDERED that the parties shall appear for a preliminary conference in Part 34 on March 5, 2024 at 9:30 a.m.; and it is further
ORDERED that defendants shall serve a copy of this decision and order upon plaintiff, with notice of entry, within ten (10) days of entry.
This constitutes the decision and order of the court.