Opinion
INDEX 69967/2018
03-18-2019
JANET LEE, Plaintiff, v. NYGAARD INVESTIGATION,, INC., BOB NYGAARD, individually, BOB NYGAARD, Defendants.
Unpublished Opinion
DECISION AND ORDER
HON. CHARLES D. WOOD, Justice of the Supreme Court
New York State Courts Electronic Filing ("NYSCEF") Documents Numbers 13 through 37, were read in connection with plaintiffs motion seeking a preliminary injunction. On December 7, 2018, this court executed an order to show cause with a temporary restraining order limited to enjoining defendant from tortuously interfering with any of plaintiff s business, and for slander or defaming plaintiff. All other temporary relief was denied. Defendants oppose the motion.
Now, based upon the foregoing papers, the motion is decided as follows: Plaintiff claims to be a psychic, who provides psychic and non-psychic services involving Marriage Counseling, Addiction Therapy, Tarot Card Readings, Palm Readings and the like. Defendants are private investigators, hired by a number of plaintiff s clients to recover their property allegedly stolen by plaintiff.
Plaintiff claims that defendants have harassed her, seeking to destroy her personal and professional reputation and tortuously interfere with her present and prospective business opportunities by contacting numerous of plaintiff s clients and informing them that they have been scammed and urging them to seek refunds for psychic services; writing letters to law enforcement agencies and district attorneys urging them to file charges against, arrest and prosecute plaintiff for rendering psychic services; and standing outside court when she appears in court on matters wholly unrelated to her profession as a psychic.
Defendants charge that plaintiff is actually a convicted criminal who is currently facing multiple criminal charges in Westchester and Manhattan including Grand Larceny, Larceny, Forgery, Scheme to defraud and Identity Theft. This was denied by plaintiff who explains that while she has had previous contacts with the law, she never has been convicted of any crime related to the allegations of defendants relating to her business practices as a psychic. Plaintiff argues that defendants are harassing plaintiffs potential and actual clients in person as well as online with unsubstantiated claims regarding plaintiff. She claims that she has already lost a lucrative opportunity for a television contract with Atlantic Overseas Picture Television; and defendants' attacks on plaintiffs business and person are a bold effort to further his own business interests and reputation as a so called "psychic fraud investigator." She brought this action within days of her arrest in connection with alleged larceny and fraud committed against one of defendants' clients. Defendants believe that they have duties and obligations to those of plaintiffs victims who have hired them, and a public duty to report criminal activity and, if called, act as a witness against plaintiff in her multiple pending criminal proceeding..
It is well settled that in order to be entitled to a preliminary injunction, the moving party must demonstrate by clear and convincing evidence, the elements of the following three prong test: (1) the likelihood of success on the merits; (2) danger of irreparable harm in the absence of an injunction; and (3) a balance of the equities in favor of granting the injunction (84-85 Gardens Owners Corp. v 84-12 35th Ave. Apt. Corp., 91 A.D.3d 702 [2d Dept 2012];(Olabi v Mayfield, 8 A.D.3d 459 [2d Dept 2004]; Matter of K.W.F. Realty Corp. v Kaufman, 16 A.D.3d 688, 690 [2d Dept 2005]). A preliminary injunction is a drastic remedy that a court should not grant unless the party seeking such relief can "establish a clear right to that relief under the law and the undisputed facts upon the moving papers" (Gagnon Bus Co. v Vallo Transportation, Ltd., 13 A.D.3d 334 [2d Dept 2004]). However, "all that must be shown is the likelihood of success; conclusive proof is not required" (Moy v Umeki, 10 A.D.3d 604 [2d Dept 2004]). Thus, "while the existence of issues of fact alone will not justify denial of a motion for a preliminary injunction, the motion should not be granted where there are issues that 'subvert the plaintiffs likelihood of success on the merits...to such a degree that it cannot be said that the plaintiff established a clear right to relief" (Matter of Advanced Digital Sec. Solutions. Inc. v Samsung Techwin Co., Ltd. 53 A.D.3d 612 [2d Dept 2008] quoting Milbrandt & Co. v Griffin, 1 A.D.3d 327, 328 [2d Dept 2003]). "Where facts are in sharp dispute, a temporary injunction will not be granted" Matter of Related Props., Inc. v Town Bd. of Town/Village of Harrison, 22 A.D.3d 587, 590 [2d Dept 2005]). The determination of whether to grant or deny a preliminary injunction rests in the sound discretion of the trial court (84-85 Gardens Owners Corp. v 84-12 35th Ave. Apt. Corp., 91 A.D.3d 702 [2d Dept 2012]). "The purpose of a preliminary injunction is to maintain the status quo and prevent the dissipation of property that could render a judgment ineffectual" (Kelley v Garuda, 36 A.D.3d 593 [2nd Dept 2007]). Additionally, it must be shown that the irreparable injury to be sustained is more burdensome to that party than the harm caused through the imposition of the injunction (citation omitted), and such injury is imminent, not remote or speculative (Copart of Connecticut, . Inc. v. Long Island Auto Realty, LLC, 42 A.D.3d 420 [2d Dept. 2007]; Village/Town of Mount Kisco v. Rene Dubos Center for Human Environments. Inc., 12 A.D.3d 501 [2nd Dept. 2004]).
As is pertinent here, New York Penal Law S 165.35, provides that:
"A person is guilty of fortune telling when, for a fee or compensation which he directly or indirectly solicits or receives, he claims or pretends to tell fortunes, or holds himself out as being able, by claimed or pretended use of occult powers, to answer questions or give advice on personal matters or to exorcise, influence or affect evil spirits or curses; except that this section does not apply to a person who engages in the afore described conduct as part of a show or exhibition solely for the purpose of entertainment or amusement"
To support the complaint and this motion, plaintiff offers defendants' letter to Mount Pleasant Village Court Justices (see Plaintiffs Ex 7-9). This letter reflects defendants urging to prosecute plaintiff to the fullest, rather than going the route of a plea deal. Defendants mention in the letter that "while members of the Westchester County District Attorneys Office have been dillydallying, a victim listed in the Mount Pleasant Grand Larceny and Scheme to defraud court information and an elderly victim in Bedford NY were both victimized. (See Plaintiff Ex 7-9). Also included in plaintiffs submission is You Tube -May 29, 2018 of individual defendant Bob NyGaard posts, showing plaintiffs picture, and underneath the picture "Psychic busted for allegedly scamming woman out of$12K.. It also continues that "The Westchester DA is sitting on at least 5 criminal complaints made against Janet Lee" (See Plaintiffs Ex 12). He urges any additional victims to call him; and that ali calis are confidential.
As for the first prong to meet the requirements to obtain a preliminary injunction, is the likelihood of success on the merits.
Plaintiffs First cause of action sounding in Tortious Interference, and the Fifth Cause of action (Tortious Interference with Prospective Economic Advantage) claims that defendant made false and malicious misrepresentations against plaintiff and that these reckless statements have had the cumulative effect of destroying plaintiffs once thriving psychic business. Moreover, defendants conduct interfered with the prospective economic advantage of plaintiff by inducing prospective clients not to engage plaintiff as their psychic advisor.
Based upon this record, plaintiffs conclusory allegations without factual support are not likely to succeed on the merits. A bulk of the evidence merely show defendants reporting that plaintiff has been accused of scamming people out of thousands of dollars for psychic services. The court fails to see any significant difference from an investigative reporter for newspapers or television news networks and defendants.
The Second Cause of Action is Unjust Enrichmen,, in that defendant after urging plaintiffs clients pursuant to direct and often unsolicited contact, advised plaintiffs clients that they should ask plaintiff for a refund because they were scammed. Again, these conclusory allegations without factual support were not likely to succeed on the merits.
The Third Cause of Action is Intentional Infliction of Emotional Distress and Loss of Consortium. According to the complain,, defendants' actions were such an intentional and grievous nature in scope and duration as to directly result in the emotional distress of plaintiff. This great emotional distress has allegedly caused a loss of consortium with plaintiffs husband. These claims are not likely to succeed on the merits.
The Fourth Cause of Action is for Slander and Defamation. The elements of a cause of action for defamation are (a) a false statement that tends to expose a person to public contempt, hatred, ridicule, aversion, or disgrace, (b) published without privilege or authorization to a third party, (c) amounting to fault as judged by, at a minimum, a negligence standard, and (d) either causing special harm or constituting defamation per se (Greenberg v Spitzer, 155 A.D.3d 27, 41 [2d Dept 2017). Slander is a type of defamation, that term is defined as the making of a false statement which tends to "expose the plaintiff to public contempt, ridicule, aversion or disgrace, or induce an evil opinion of him in the minds of right-thinking persons, and to deprive him of their friendly intercourse in society'" (Foster v Churchill, 87 N.Y.2d 744, 751 [1996]). "A slanderous statement is published and therefore actionable when it is heard by some third party" (Rabushka v Marks, 256 A.D.2d 562, 563 [2d Dept 1998]). Words constitute "slander per se" if they impute the commission of a serious crime, a loathsome disease, unchaste behavior in a woman, or if they affect the plaintiff in his trade, occupation or profession (Liberman v Gelstein, 80 N.Y.2d 429 [1992]; Warlock Enterprises v City Center Associates, 204 A.D.2d 438 [2d Dept. 1994]). "Truth is an absolute defense to an action based on defamation" (Greenberg v Spitzer, 155 A.D.3d 27, 41 [2d Dept. 2017]).
Defendants argue that plaintiff has alleged facts that demonstrate that defendants are shielded from liability under absolute and qualified privileges. They contend that even had the letter sent by defendants to the judges in the pending Westchester criminal proceeding contained otherwise defamatory statements, defendants are entitled to immunity from any claim sounding in defamation arising from that letter.
Taking into consideration the parties' arguments, the court finds that plaintiff has not established a likelihood of success on the defamation cause of action.
Moreover, in the context of the twitter posts, it could be said that a reasonable reader would understand the statements defendants made about plaintiff are mere allegations to be investigated rather than as facts (Brian v Richardson, 87 N.Y.2d 46, 53 [1995]).
The court also considers that "[w]here a litigant can fully be recompensed by a monetary award, a preliminary injunction will not issue" Neos v Lacey, 291 A.D.2d 434, 455 [2d Dept 2002]). Moreover, that the balance of equities does not favor a preliminary injunction.
Through her papers, plaintiff has not convinced this court that there is a likelihood that she will be successful on the merits. However, a decision on the motion for a preliminary injunction is not a final determination of the merits.
All matters not specifically addressed are herewith denied. This constitutes the decision and order of the court.
NOW, based on the stated reasons, it is hereby
ORDERED, that plaintiffs motion for a preliminary injunction is denied, and the temporary restraining order is vacated herewith; and it is further
ORDERED, that the parties are directed to appear in the Preliminary Conference Part on April 8th, 2019, at 9:30 in Room 811 of the Westchester County Courthouse, 111 Dr. Martin Luther King Jr. Blvd., White Plains, New York 10601.