Opinion
No. 2022-50526 Index No. 656146/2018
06-24-2022
Hongmian Gong, Plaintiff, v. Lerone Savage, Defendant.
Law Offices of G. Oliver Koppell & Associates, New York, NY (G. Oliver Koppell and Daniel F. Schreck of counsel), for plaintiff. DCL Firm (DeCristofaro Law), New York, NY (James J. DeCristofaro and Jason R. Mischel of counsel), for defendant.
Unpublished Opinion
Law Offices of G. Oliver Koppell & Associates, New York, NY (G. Oliver Koppell and Daniel F. Schreck of counsel), for plaintiff.
DCL Firm (DeCristofaro Law), New York, NY (James J. DeCristofaro and Jason R. Mischel of counsel), for defendant.
Gerald Lebovits, J.
The following e-filed documents, listed by NYSCEF document number (Motion 001) 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55 were read on this motion to AMEND PLEADINGS.
Plaintiff Hongmian Gong has brought this action against defendant Lerone Savage to recover for alleged breach of contract and misappropriation of confidential information.
Defendant moves for leave to amend his answer with affirmative defenses and counterclaims under CPLR 3025. Plaintiff cross-moves to dismiss some of defendant's counterclaims under CPLR 3211 (a) (7), whether asserted in the answer or amended answer. Plaintiff further cross-moves to strike defendant's preliminary statement in the answer or the amended answer.
Defendant's motion for leave to amend is granted in part and denied in part. Plaintiff's cross-motion to dismiss is granted in part and denied in part. Plaintiff's cross-motion to strike is granted in part and denied in part.
BACKGROUND
Plaintiff is a geography professor at Hunter College of the City University of New York (CUNY). Defendant worked on research projects supervised by plaintiff in spring 2013, when he was an undergraduate student, and in fall 2014, when he was a master's degree candidate. In connection with these research projects, the parties exchanged emails, dated January 9, 2013, and September 8, 2014. (See NYSCEF No. 2.) In the January 2013 email exchange, defendant agreed to the following terms:
"Without [plaintiff's] written consent, [defendant] will not share the project information (including presenting to the public or posting on the Internet) with anyone outside the projects, and [defendant] will not use the project information for [defendant's] papers or thesis. The project information includes but not limit to [sic] GPS and GIS data made available to [defendant] for working on these projects, grant proposals, existing programming codes, and programming codes or database [defendant is] compensated/paid to develop for the projects. The project information does not include published articles."
The wording of the September 2014 email exchange is nearly identical.
In the course of the parties' collaboration, defendant authored his graduate thesis and sought to publish it. Plaintiff complained to CUNY that defendant had wrongfully used project information in his thesis. As a result, CUNY embargoed defendant's thesis for three years and did not publish it on CUNY's digital platform during that period.
Plaintiff brought this action in December 2018. Plaintiff has asserted claims for breach of contract and misappropriation of confidential information/trade secret; and she has requested injunctive relief and damages. Plaintiff alleges that defendant used in his thesis, without plaintiff's consent, project information that is unpublished, confidential, and proprietary; and that defendant claimed work done by plaintiff and her research team to be his own. Plaintiff further alleges that following his termination from the project, defendant retained possession of certain project information, and has attempted to publish this information as his own.
Defendant answered in April 2019. Defendant also asserted 13 counterclaims, including breach of the covenant of good faith and fair dealing, unconscionability, tortious interference with contract, fraud, and defamation.
In August 2020-the same day defendant's thesis was ultimately published on CUNY's digital platform-plaintiff emailed a listserv of the Geography Department at Hunter College. Plaintiff's email states that in defendant's thesis, he had "put work done by [plaintiff's] research team before he was even hired as his thesis methodology and contribution, without [plaintiff's] consent." (NYSCEF No. 40.) The email also refers to this action; and it includes a hyperlink to a website containing a description of defendant's alleged unauthorized use of plaintiff's previous research. (See id.) In April 2021, plaintiff sent another email to a Geography Department listserv. In this email, plaintiff demands among other things that defendant's thesis be taken offline because "[defendant] plagiarized [plaintiff's] research as his thesis." (NYSCEF No. 46). The email also contains a link to the website describing defendant's alleged unauthorized use of plaintiff's research.
Defendant now moves under CPLR 3025 (b) for leave to amend his answer. The proposed amended answer (NYSCEF No. 43) would add four counterclaims (numbered 14-17), would supplement some of the existing counterclaims (Nos. 3, 7, 9, 10, and 11), and expand the answer's preliminary statement. Plaintiff cross-moves to dismiss many of the existing counterclaims under CPLR 3211 (a) (7), and also to strike the answer's preliminary statement under CPLR 3024. The motion for leave to amend, and the cross-motion to dismiss and to strike, are granted in part and denied in part.
DISCUSSION
I. Defendant's Motion for Leave to Amend
Leave to amend under CPLR 3025 (b) is freely granted: Absent prejudice or surprise, leave should be denied only if the proffered amendment is "palpably insufficient or clearly devoid of merit." (Fairpoint Cos, LLC v Vella, 134 A.D.3d 645, 645 [1st Dept 2015] [internal quotation marks].)
A. Additions to Defendant's Preliminary Statement
Plaintiff does not specifically object to defendant's additions to the preliminary statement of his answer. This branch of the motion for leave to amend is granted.
B. Defendant's Proposed New Counterclaims
1. Defendant's New Counterclaim Nos. 14 (Defamatory Injury to Reputation-Libel) and 15 (Defamation Per Se-Libel)
Defendant seeks leave to amend his answer to add two new defamation counterclaims (Nos. 14 and 15) based on the August 2020 and the April 2021 emails and the linked website post. Plaintiff argues that this branch of defendant's request for leave to amend should be denied because the two new defamation counterclaims are devoid of merit. This court disagrees with plaintiff.
First, plaintiff argues that her statements in the August 2020 and the April 2021 emails are not defamatory as a matter of law because "[q]uestions of credit and attribution in research are common disputes in academia," so plaintiff's statements would not "subject Savage to any shame or ridicule from society at large any more than any other party involved in a breach of contract dispute, or an academic dispute." (NYSCEF No. 49 at 5.) But questions of credit and attribution in research commonly recur in academia because these questions hold great importance among academics. For an academic to accuse a former student or colleague of, in effect, stealing research, is to lay a grave charge. As a result, it has been held defamatory per se to accuse an author of plagiarism, as it is "a charge of unfair business practice, deceit, and lack of professional ability." (Brown v New York Evening Journal, Inc., 143 Misc. 199, 201 [Sup Ct, NY County 1932], affd 235 AD 840 [1st Dept 1932].) In both emails and in the website post, plaintiff essentially accuses defendant of plagiarism and makes statements that reflect negatively on defendant's integrity as a researcher, and thus his professional capacity and fitness. These statements-if ultimately shown to be false-might well be found defamatory.
Plaintiff suggests that the April 2021 email cannot be defamatory because she did not send the email with defamatory intent, and because that email described the putative failings of other individuals at greater length than its discussion of defendant. (See NYSCEF No. 49 at 5.) But as plaintiff herself concedes (see id. at 3), a defamation plaintiff is not required to establish intentional wrongdoing; and that the April 2021 email at issue said more about other individuals than about defendant does not mean its statements about him would necessarily lack any impact on readers of the email.
Plaintiff also argues that defendant does not have a cause of action for libel because her statements-even if defamatory-are protected by qualified privilege, and defendant fails to rebut the privilege by showing plaintiff's bad faith or malice. This argument is unavailing. A qualified privilege "arises when a person makes a bona fide communication upon a subject in which he or she has an interest, or a legal, moral, or social duty to speak, and the communication is made to a person having a corresponding interest." (Paskiewicz v N.A.A.C.P., 216 A.D.2d 550, 551 [2d Dept 1995].) If a qualified privilege is established, "the burden of proof shifts to the plaintiff to offer evidentiary facts to establish that the communication was made in bad faith and was motivated solely by malice." (Id.) The questions of (i) whether a qualified privilege shields the statements at issue, and (ii) whether defendant has overcome the privilege, are necessarily fact-specific, such that the court cannot conclusively determine at this stage that the privilege defeats these two defamation counterclaims.
Plaintiff further contends that defendant fails to meet his pleading burden because defendant did not plead any special damages. But in a claim for libel per se, "the existence of damage is conclusively presumed from the publication itself and a plaintiff may rely on general damages." (Matherson v Marchello, 100 A.D.2d 233, 237 [2d Dept 1984], abrogated on other grounds Laguerre v Maurice 192 A.D.3d 44 [2d Dept 2020].) Defendant's failure to plead special damages in his counterclaims 14 and 15 does not render these counterclaims meritless.
The branch of defendant's motion seeking leave to amend his answer to add counterclaim Nos. 14 and 15 is granted.
2. Defendant's New Counterclaim No. 16 (Injurious Falsehood-Libel)
Defendant seeks to add a new counterclaim No. 16 for injurious falsehood. Plaintiff contends that this claim is plainly devoid of merit because defendant did not plead all of the required elements of the cause of action. This court agrees.
A claim for injurious falsehood "requires the knowing publication of false and derogatory facts about the plaintiff's business of a kind calculated to prevent others from dealing with the plaintiff, to its demonstrable detriment." (Banco Popular N. Am. v Lieberman, 75 A.D.3d 460, 462 [1st Dept 2010] [internal citations omitted].) The false statements must also cause special damages in the form of actual lost dealings. (Id.) Defendant alleges that the August 2020 and April 2021 emails are the publication of a false statement to a third party. Defendant has not, however, alleged special damages. Defendant's motion for leave to add proposed counterclaim No. 16 is denied.
3. Defendant's New Counterclaim No. 17 (Actual Fraud in Contract)
Defendant seeks to add a new counterclaim No. 17 for fraud in contract. The proposed counterclaim is devoid of merit.
To state a fraud claim, a party must allege "a representation of fact, which is either untrue and known to be untrue or recklessly made, and which is offered to deceive the other party and to induce them to act upon it, causing injury." (Berner v Moore Bus. Forms, Inc., 204 A.D.2d 1072, 1073 [4th Dept 1994] [internal quotation marks omitted].) Under CPLR 3016 (b), "[a]ll of the elements of a fraud claim must be supported by factual allegations containing the details constituting the wrong." (JP Morgan Chase Bank, N.A. v Hall, 122 A.D.3d 576, 579 [2d Dept 2014] [internal quotation marks omitted].) Defendant's proposed counterclaim No. 17 fails in multiple respects to allege all of these elements with particularity.
As an initial matter, it is difficult to discern what defendant is contending to have been plaintiff's false representations of fact. But even assuming that defendant can satisfy that element of his fraud claim, defendant's allegations that (i) plaintiff knew her representations to be false, and (ii) intended defendant to rely on those representations, are pleaded only on information and belief. (See NYSCEF No. 43 at 171-172.) These allegations, made without any indication of the source of defendant's information and belief, are insufficient to state a claim for fraud. (See Elmrock Opportunity Master Fund I, L.P. v Citicorp N. Am., Inc., 155 A.D.3d 411, 412 [1st Dept 2017]; DDJ Management, LLC v Rhone Grp. LLC, 78 A.D.3d 442, 443 [1st Dept 2010].)
4. Defendant's Proposed Amendments to Counterclaim Nos. 3, 7, 9, 10, and 11
In addition to seeking leave to add counterclaim Nos. 13-17, defendant seeks to expand the allegations supporting counterclaim Nos. 3, 7, 9, 10, and 11. Plaintiff does not specifically object to the amendment of these counterclaims. However, as discussed further below, this court concludes that plaintiff's cross-motion to dismiss should be granted as to counterclaim Nos. 3, 9, 10, and 11. Leave to amend these counterclaims is denied. Plaintiff does not seek dismissal of counterclaim No. 7. Defendant's request for leave to amend this counterclaim is granted.
II. Plaintiff's Cross-Motion to Dismiss
Plaintiff cross-moves under CPLR 3211 (a) (7) to dismiss defendant's counterclaim Nos. 1, 3, 4, 5, 6, 8, 9, 10, 11, 12, and 13. This branch of plaintiff's cross-motion is granted in part and denied in part.
A. Defendant's Counterclaim No. 1 (Confusing Language in Written Contract)
Defendant seeks damages for a counterclaim he titles "Confusing Language in Written Contract." Plaintiff contends that "Confusing Language in a Written Contract" is not a cognizable cause of action. This court agrees with plaintiff.
As defendant himself acknowledges in the allegations supporting this counterclaim, confusing language in a contract may lead a court to conclude that a contract is ambiguous-and, if sufficiently vague and indefinite, may lead the court to conclude that the contract is unenforceable altogether. (See F & K Supply Inc. v Willowbrook Dev. Co., 288 A.D.2d 713, 714 [3d Dept 2001].) But contractual unenforceability is a defense to a breach of contract claim. It is not itself a cause of action on which a party may seek affirmative relief.
B. Defendant's Counterclaim No. 3 (Constructive Fraud in Contract)
In addition to his proposed counterclaim No. 17 for actual fraud in contract, defendant brings counterclaim No. 3 for constructive fraud in contract. A party bringing a cause of action for constructive fraud, must allege the existence of a "fiduciary or confidential relationship between the parties." (Klembczyk v DiNardo, 265 A.D.2d 934, 935 [4th Dept 1999].) Defendant's counterclaim, however, alleges only that "[u]pon information and belief, Plaintiff and [defendant] had a fiduciary relationship" at the time of the January 2013 and September 2014 emails. As discussed above, that is not sufficient. (See Elmrock Opportunity Master Fund, 155 A.D.3d at 412.) Plaintiff's cross-motion to dismiss this counterclaim is granted.
C. Defendant's Counterclaim Nos. 4 (Contract Performance Interfered with by Outsider) and 5 (Intentional Interference with Contractual Relationship)
Defendant concedes that his counterclaim No. 4 should be dismissed as duplicative of counterclaim No. 5. (See NYSCEF No. 51 at 18.) The branch of plaintiff's cross-motion to seeking to dismiss counterclaim No. 4 is granted.
Counterclaim No. 5 seeks damages for (alleged) intentional interference with a contractual relationship based on plaintiff's complaints to CUNY about defendant's asserted misconduct. The branch of plaintiff's motion seeking dismissal of this counterclaim is denied.
Plaintiff does not contend that defendant failed to sufficiently plead counterclaim No. 5. Instead, plaintiff asserts two defenses to the claim. Each of plaintiff's arguments is without merit.
First, plaintiff argues that as an employee of CUNY, she is not a stranger to the contract between CUNY and defendant, and thus cannot be held liable for intentional interference with contractual relations. As a general rule, "only a stranger to a contract, such as a third party, can be liable for tortious interference with a contract." (Koret, Inc. v Christian Dior, S.A., 161 A.D.2d 156, 157 [1st Dept 1990].) Employees are not considered strangers to their employers' contracts if the conduct at issue was within the scope of the employees' authority, and if the employee did not commit independent torts or predatory acts directed at the claimant. (See Vendetti v Zywiak, 191 A.D.3d 1268, 1271 [4th Dept 2021], rearg denied 193 A.D.3d 1442 [4th Dept 2021], appeal dismissed 37 N.Y.3d 933 [2021], and lv to appeal denied 37 N.Y.3d 914 [2021].) Determining the answers to these questions entails a fact-specific inquiry that cannot be undertaken at the pleading stage. (See Fischbach & Moore, Inc. v E.W. Howell Co., Inc., 240 A.D.2d 157, 157-158 [1st Dept 1997].)
Second, plaintiff contends that the economic-interest defense shields her complaints to CUNY. Under this defense, "procuring the breach of a contract in the exercise of equal or superior right... is justification for what would otherwise be an actionable wrong." (Foster v Churchill, 87 N.Y.2d 744, 750 [1996] [internal quotation marks omitted].) The economic interest defense can be overcome, however, by a showing of either malice or fraudulent or illegal means. (See id.) And on a motion to dismiss for failure to state a cause of action, "the burden never shifts to the nonmoving party to rebut a defense asserted by the moving party." (Sokol v Leader, 74 A.D.3d 1180, 1181 [2d Dept 2010].) Granting plaintiff's cross-motion to dismiss counterclaim no. 5 based on the proffered economic-interest defense would be tantamount to concluding not only that plaintiff has established this defense, but also that defendant cannot rebut it-a conclusion that this court cannot reach at the pleading stage.
D. Defendant's Counterclaim No. 6 (Reliance on Another's Conduct/Estoppel)
Defendant's counterclaim no. 6 sounds in promissory estoppel. Plaintiff argues that this claim should be dismissed because defendant is also making a claim for breach of contract. This court disagrees.
It is correct that "[t]he existence of a valid and enforceable written contract governing a particular subject matter ordinarily precludes recovery in quasi contract for events arising out of the same subject matter." (Villnave Constr. Services, Inc. v Crossgates Mall Gen. Co. Newco, LLC, 201 A.D.3d 1183, 1184 [3d Dept 2022].) But the existence of an express agreement does not bar a quasi-contract claim where the claimant contests the validity of the agreement. (Resource Fin. Co. v Cynergy Data LLC, 106 A.D.3d 562, 563 [1st Dept 2013].) Defendant has disputed that the January 2013 and September 2014 emails created a valid and enforceable contract; and defendant has otherwise sufficiently alleged the elements of a cause of action for promissory estoppel. (See Lord v Marilyn Model Mgt., Inc., 173 A.D.3d 606, 607 [1st Dept 2019], citing Pearce v Manhattan Ensemble Theater, Inc., 528 F.Supp.2d 175, 181 [SD NY 2007].) Plaintiff's cross-motion to dismiss this counterclaim is denied.
E. Defendant's Counterclaim No. 8 (Unconscionability Permitting Contract Rescission)
In his counterclaim No. 8, defendant seeks rescission based on unconscionability. Plaintiff argues that this claim should be dismissed for failure to adequately plead unconscionability. This court agrees.
This court is not persuaded by plaintiff's alternative argument that counterclaim No. 8 should be dismissed because defendant assertedly ratified the requirements of the contract. That argument rests on factual grounds that cannot be assessed at the pleading stage.
A party seeking rescission on the basis of unconscionability must establish that the agreement is both procedurally and substantively unconscionable- i.e., the party must provide "some showing of an absence of meaningful choice on the part of one of the parties together with contract terms which are unreasonably favorable to the other party." (Wachovia Sec., LLC v Joseph, 56 A.D.3d 269, 270 [1st Dept 2008].) Here, defendant's allegations of substantive unconscionability are insufficient: They consist merely of conclusory statements that the contract's terms are "incompatible", "shock the conscience" and are "unconscionable." (NYSCEF No. 43 at ¶ 116.) These statements, without more, cannot a motion to dismiss. (See Barnes v Hodge, 118 A.D.3d 633, 633 [1st Dept 2014].)
F. Defendant's Counterclaim Nos. 9 (Defamatory Injury to Reputation-Slander), 10 (Defamation Per Se-Slander), and 11 (Injurious Falsehood-Slander)
Defendant brings three slander counterclaims: Counterclaim No. 9 for defamatory injury to reputation, counterclaim No. 10 for defamation per se, and counterclaim No. 11 for injurious falsehood. Plaintiff's cross-motion to dismiss these three counterclaims is granted.
With respect to counterclaim Nos. 9 and 10, this court agrees with plaintiff that these counterclaims are subject to dismissal for failure to plead specific details of plaintiff's allegedly defamatory statements. CPLR 3016 (a) requires a party claiming defamation to "set forth in the complaint" the "particular words complained of." Additionally, the complaint must "allege the time, place and manner of the false statement and specify to whom it was made." (Dillon v City of New York, 261 A.D.2d 34, 38 [1st Dept 1999].) Counterclaim nos. 9 and 10, on the other hand, merely state that "upon information and belief, plaintiff allegedly complained to CUNY that [defendant] had wrongfully used 'project information.'" (NYSCEF No. 43 at 122, 127.) That is not sufficient.
Counterclaim No. 11 is based on alleged oral complaints made by plaintiff to CUNY about defendant (assertedly) using project information without authorization. A claim for injurious falsehood must plead with particularity both the alleged falsehood on which it is based and the special damages alleged to have been suffered by the claimant. (BCRE 230 Riverside LLC v Fuchs, 59 A.D.3d 282, 283 [1st Dept 2009].) In pleading special damages for injurious falsehood, "actual losses must be identified and causally related to the alleged tortious act." (Waste Distillation Tech. v Blasland & Bouck Engrs., 136 A.D.2d 633, 634 [2d Dept 1988].)
Defendant's counterclaim here does not sufficiently specify plaintiff's alleged false statements. Defendant merely alleges that plaintiff "complained to CUNY that [defendant] had wrongfully used project information." (NYSCEF No. 43 at ¶ 132.) Defendant has also failed to plead special damages: The counterclaim states only that plaintiff's statements "directly led to CUNY depriving [defendant] of prospective economic advantage," and therefore that defendant "has been damaged." (NYSCEF No. 43 at ¶ 133.)
G. Defendant's Counterclaim No. 12 (Intentional Infliction of Emotional Distress)
Defendant's counterclaim No. 12 seeks damages for intentional infliction of emotional distress. Plaintiff argues that this claim should be dismissed because it fails to assert extreme and outrageous conduct, and because plaintiff's conduct was privileged. This court disagrees.
"[T]he elements of a claim for intentional infliction of emotional distress are (i) extreme and outrageous conduct, (ii) an intent to cause-or disregard of a substantial probability of causing-severe emotional distress, (iii) a causal connection between the conduct and the injury, and (iv) the resultant severe emotional distress." (Lau v S & M Enters., 72 A.D.3d 497, 498 [1st Dept 2010].) To survive a motion to dismiss, the claim must arise as a result of a "campaign of harassment or intimidation." (164 Mulberry St. Corp. v Columbia Univ., 4 A.D.3d 49, 56 [1st Dept 2004]; accord Scollar v City of NY, 160 A.D.3d 140, 146 [1st Dept 2018].)
Defendant pleads that plaintiff engaged in a "campaign of intentional harassment," and names plaintiff's holding back of scholarship payments and making allegedly false statements to CUNY as specific instances of such behavior. (NYSCEF No. 43 at ¶ 136-137.) Defendant's counterclaim also contains allegations of intent, causality, and the resulting severe emotional distress. (See NYSCEF No. 43 at 140.) Accepting as true the facts alleged, and viewed in the light most favorable to defendant, defendant has sufficiently pleaded the elements of a cause of action for intentional infliction of emotional distress.
Plaintiff again raises a defense of privilege. As mentioned previously, on a motion to dismiss for failure to state a cause of action, "the burden never shifts to the nonmoving party to rebut a defense asserted by the moving party." (Sokol v Leader, 74 A.D.3d at 1181.) Even if plaintiff were to establish this defense, defendant cannot be required to rebut it. Plaintiff's cross-motion to dismiss defendant's counterclaim No. 12 is denied.
H. Defendant's Counterclaim No. 13 (Punitive Damages for Lost Opportunity)
Defendant's counterclaim No. 13 seeks punitive damages for lost opportunity. As plaintiff contends, however, an argument that punitive damages should be assessed is not itself a freestanding cause of action. Instead, it is merely an element of the "total claim for damages" that the claimant alleges should be awarded to him. (Jean v Chinitz, 163 A.D.3d 497, 498 [1st Dept 2018].) Plaintiff's cross-motion to dismiss counterclaim No. 13 is granted.
III. Plaintiff's Cross-Motion to Strike
Plaintiff also cross-moves to strike the preliminary statement of defendant's answer. The motion is granted in part and denied in part.
Under CPLR § 3024 (b), "a party may move to strike any scandalous or prejudicial matter unnecessarily inserted in a pleading." On a CPLR 3024 (b) motion to strike, "the inquiry is whether the purportedly scandalous or prejudicial allegations are relevant to a cause of action." (Soumayah v Minnelli, 41 A.D.3d 390, 392 [1st Dept 2007].) Even a scandalous or prejudicial allegation should survive a motion to strike if it is relevant to a cause of action or its material elements. (Pisula v R.C. Archdiocese of New York, 201 A.D.3d 88, 97 [2d Dept 2021].)
Plaintiff argues first that the entire preliminary statement should be stricken because it does not contain consecutively numbered paragraphs. But plaintiff does not identify any prejudice she suffered as a result. This court therefore disregards as a technical defect defendant's failure to structure the preliminary statement as consecutively numbered paragraphs. (See CPLR 2001.) Nor has plaintiff otherwise shown that the preliminary statement as a whole should be stricken.
Plaintiff also contends that specific parts of the preliminary statement should be stricken as scandalous and prejudicial: Defendant's statements that (i) plaintiff "repeatedly, maliciously, and wantonly abused and bullied [defendant]"; (ii) "[p]laintiff must pay. Why? Because Plaintiff has crossed the line, and continues to cross it"; (iii) plaintiff was "duping" or "trapping" defendant; and (iv) plaintiff engaged "in a reckless campaign of defamation." Statements (i), (iii) and (iv) are potentially relevant to counterclaim Nos. 12, 7, and 15, respectively. Statement (ii) above is a general statement of opinion that is not relevant to any of defendant's claims or defenses, and is capable of inflaming a jury. This statement therefore is stricken from the preliminary statement of defendant's answer.
Accordingly, it is
ORDERED that the branch of defendant's motion seeking leave under CPLR 3025 to amend his answer to add new counterclaims is granted as to proposed counterclaim Nos. 14 and 15, and denied as to proposed counterclaim Nos. 16 and 17; and it is further
ORDERED that the branch of defendant's motion seeking leave under CPLR 3025 to amend his answer to supplement the existing claims and allegations is granted as to the preliminary statement and counterclaim No. 7, and denied as to counterclaim Nos. 3, 9, 10, and 11; and it is further
ORDERED that the branch of plaintiff's cross-motion seeking to dismiss some of defendant's counterclaims under CPLR 3211 (a) (7) is granted as to counterclaim Nos. 1, 3, 4, 8, 9, 10, 11, and 13, and denied as to counterclaim Nos. 5, 6, and 8; and it is further
ORDERED that the branch of plaintiff's cross-motion seeking to strike the preliminary statement of defendant's answer under CPLR 3024 is granted only as to the statement "Plaintiff must pay. Why? Because Plaintiff has crossed the line, and continues to cross it," and otherwise denied; and it is further
ORDERED that defendant shall, within 21 days of entry of this order, serve and file an amended answer in a form consistent with this order; and it is further
ORDERED that defendant serve a copy of this order with notice of its entry on plaintiff.