WHEN LAWYERS THROW MUD AT EACH OTHER ONLINE

Mor v. IMBESI LAW PC, 2022 NY Slip Op 30799 - NY: Supreme Court March 10, 2022:

"In this action, inter alia, to recover damages for libel, defendants Imbesi Law P.C. (Imbesi Law), Vincent James Imbesi (Imbesi), and Brittany Sloane Weiner (Weiner), move, pursuant to CPLR 3211(a)(1) and (7), to dismiss the amended complaint insofar as asserted against them.

BACKGROUND

From October 2017 to October 2018, plaintiff Ariel Mor Esq. (aka Ari Mor) and his law firm plaintiff Ari Mor Esq., P.C. (together Mor) subleased an office space from Imbesi Law pursuant to two separate lease agreements (Lease Agreements, NYSCEF Doc. Nos. 12, 13). The space subleased by Mor was part of a larger office suite utilized by Imbesi Law.

According to Mor, the phone lines in his subleased space never operated and Imbesi Law effectively blocked him from accessing interne and printing services (Amended Complaint at ¶ 13, NYSCEF Doc. No. 46). Additionally, Mor alleges that the air conditioning units in the subleased space failed on a consistent basis and that Imbesi intentionally turned off the power to the unit, making it impossible for Mor to work there for more than two hours at a time (id. at ¶¶ 14, 16). Further, Mor asserts that Imbesi posted notices throughout the office suite meant to embarrass and harass Mor and to prevent him from being able to conduct business at the premises (id. at ¶ 17). Collectively, the notices indicated that Mor failed to pay his rent for May and June 2018 and failed to pay his share of the electricity bill from February to July 2018 (id. at Exh 6).

Mor acknowledges that he stopped paying rent in May of 2018, but claims he stopped doing so because of the aforementioned allegations, which he asserts amounted to a constructive eviction (id. at ¶ 18-19). Mor alleges that after he refused to pay rent, John and Jane Does #1-100 (the Doe defendants), who Mor believes to be Imbesi and/or his law partner Weiner, began posting "numerous and repeated false and defamatory statements" on various websites, including Yelp.com (id. at ¶ 18-20). The Yelp reviews, some of which Mor reproduces in his amended complaint, are purported to be made by individuals who retained and/or did business with Mor (id. at ¶ 20).

According to Mor, he never did business with any of these individuals and the statements posted by them "anonymously under fake aliases" are fabricated (id. at ¶¶ 19, 22-35). Mor believes that Imbesi and/or Weiner created fake accounts in order to post these "defamatory reviews" (id. at ¶ 34).

Mor asserts that the statements posted in these Yelp reviews ruined his reputation and "had the effect of lowering [his] good will and worthiness in the estimation of the community, deterring others from associating or dealing with [him], and otherwise exposing [him] to contempt and ridicule" (id. at ¶¶ 139-140). He alleges that "[a]ny client or prospective client who investigates and/or searches [him] on, inter alia, www.Google.com and/or www.Yelp.com [would quickly find] the Defamatory Statements" (id. at ¶ 142).

On September 4, 2018, Mor commenced the instant action against Imbesi Law, Imbesi, Weiner, and the Doe defendants, alleging causes of action for: libel; libel per se; injurious falsehood; tortious interference with prospective business advantages, opportunities and relations; fraud; violation of section 349 of the General Business Law (General Business Law 349); breach of contract; commercial tenant harassment under section 22-902 of the Administrative Code of the City of New York (Administrative Code 22-902); partial constructive eviction; and for a declaration that the statements posted on the interne are defamatory and/or defamatory per se (Original Complaint, NYSCEF Doc. No. 1).

In the interim, Imbesi Law initiated a summary non-payment proceeding in the New York City Civil Court against Mor, entitled Imbesi Law P.C. v Law Offices of Ari Mor, Esq., P.C. (L&T Index No. 064133/2018). On September 4, 2018, Mor moved by order to show cause to remove the non-payment proceeding and to consolidate it with the instant action. On October 29, 2018, this court granted Mor's motion (Order [Mot. Seq. No. 001], NYCEF Doc. No. 24).

Thereafter, Imbesi Law, Imbesi and Weiner moved to dismiss the original complaint insofar as asserted against them. By order dated May 8, 2020 (the prior order), this court granted their motion to the extent of (1) dismissing the causes of action alleging violation of General Business Law 349 and commercial harassment under Administrative Code 22-902, and (2) dismissing the causes of action for libel, libel per se, breach of contract, and a declaratory judgment with leave to replead these claims with specificity and serve an amended complaint as to those causes of action within 30 days (Order [Mot. Seq. No 002], NYSCEF Doc. No. 44). The court denied, as moot, those branches of the motion which were to dismiss the causes of action for injurious falsehood, tortious interference, fraud, and partial constructive eviction, on the ground that those causes of action were withdrawn by Mor in opposing the motion (id.).

On June 7, 2020, Mor filed an amended complaint against the same defendants asserting causes of action for (1) libel, (2) libel per se, (3) breach of implied covenant of good faith and fair dealing, (4) commercial tenant harassment under Administrative Code 22-902, and (5) seeking a declaration that defendants have committed libel and/or libel per se (Amended Complaint, NYSCEF Doc. No. 46).

Now before the court is a motion by Imbesi Law, Imbesi, and Weiner (hereinafter the moving defendants) to dismiss the amended complaint as against them pursuant to CPLR 3211(a)(1) and (7). For the following reasons, their motion is denied.

DISCUSSION

"On a motion to dismiss pursuant to CPLR 3211, the pleading is to be afforded a liberal construction" and the court must "accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" (Leon v Martinez, 84 NY2d 83, 87-88 [1994]). On a CPLR 3211(a)(1) motion to dismiss based on documentary evidence, "a dismissal is warranted only if the documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law. In assessing a motion under CPLR 3211(a)(7), however, a court may freely consider affidavits submitted by the plaintiff to remedy any defects in the complaint and the criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one" (id. at 88 [internal quotation marks and citations omitted]).

Libel and Libel Per Se

"The essence of the tort of libel is the publication of a statement about an individual that is both false and defamatory" (Brian v Richardson, 87 NY2d 46, 50-51 [1995]). A defamatory statement is one that "tends to expose a person to public contempt, hatred, ridicule, aversion or disgrace" (Davis v Boeheim, 24 NY3d 262, 268 [2014] [internal quotation marks and citations omitted]).

A complaint alleging defamation "must set forth the particular words allegedly constituting defamation (see CPLR 3016[a]), and it must also allege the time when, place where, and manner in which the false statement was made, and specify to whom it was made" (Epifani v Johnson, 65 AD3d 224, 233 [2d Dept 2009][quotation marks and citations omitted]).

The Court of Appeals has stated:

"In determining the sufficiency of a defamation pleading, we consider whether the contested statements are reasonably susceptible of a defamatory connotation [and] [i]f, upon any reasonable view of the stated facts, plaintiff would be entitled to recovery for defamation, the complaint must be deemed to sufficiently state a cause of action. We apply this liberal standard fully aware that permitting litigation to proceed to discovery carries the risk of potentially chilling free speech, but do so because, as we have previously stated, we recognize as well a plaintiffs right to seek redress, and not have the courthouse doors closed at the very inception of an action, where the pleading meets [the] minimal standard necessary to resist dismissal of [the] complaint"

(Davis v Boeheim, 24 NY3d 262, 268 [2014][internal quotation marks and citations omitted]).

In the prior order, this court dismissed the causes of action for libel and libel pers se on the ground that the original complaint failed to set forth "the particular words complained of (CPLR 3016[a]). The court noted that while Mor alleged in the complaint that defendants made numerous false and defamatory statements on the internet, and annexed copies of various Yelp reviews as exhibits to the complaint, Mor failed to delineate in the complaint exactly which statements were defamatory. The court granted Mor leave to replead these causes of action to specify which statements in each Yelp review are alleged to be defamatory.

The causes of action in the amended complaint alleging libel and libel per se now describe the alleged defamatory statements with the requisite specificity. In paragraph 20 of the amended complaint (NYSCEF Doc. No. 46), Mor reproduces the following Yelp reviews, which he collectively refers to as "the Defamatory Statements," and delineates the words that are alleged to be defamatory, which appear below in bold:^[1]

(1) A one-star (out of five) review, dated "5/15/18," posted by user "JR," which states:

"I had a truly horrible experience with Ari Mor. He is an unscrupulous character who did very little, avoided any contact, and bullied us into giving him money after he did almost nothing. He is a predatory con artist and is a sleazy lawyer. Also, he went to Thomas Jefferson Law School, which you should PLEASE google. It is a factory mill degree law school that is also incredibly unscrupulous. Here is the link to a NYTimes article on it:

NYtimes.com/2016/03/07/b...

I am traumatized from my experience with Ari Mor and do not wish him on anybody. He is not an experienced lawyer. Instead, he is a smooth talking con artist who knows little about NYC housing law and does a lot of pomp and circumstance to swindle desperate people. Please beware."

(2) A zero-star review, dated "Jun 29, 2018," posted by user "Sally S.," which states:

"This guy went crazy in a law office I was at. He was cursing and screaming and banging walls. You would not believe how unprofessional he was. I think he did not pay his rent for 50 days and was upset. Not sure what his problem is."

(3) A one-star review, dated "8/6/2018," posted by user "Janie H.," which states:

"We contracted with this guy. He seemed ok at first BOY were we wrong. He literally attacked a lawyer — yelling `fucking faggot' among other slurs. I think he is being evicted from his law office (at least I saw a legal document trying to evict him for failing to pay his rent.) The office is SUPER convenient. So that is a plus.

I am not sure what causes him to go off and attack people using anti gay slurs. Not cool with me. He is a loose cannon. See the lawsuit filed against his law firm. It claims to have video of this dope attacking a lawyer while threatening to kill him (you cannot make this stuff up! !)

Please do your own diligence. Maybe he was having a bad day?"

(4) A zero-star review, dated "Aug 10, 2018," posted by user "Shana F.," which states:

"I never write reviews but need to warn public of my opinion. Contracted with Ari Mor law firm months ago. I now find out his landlord has filed to evict him for failing to pay!!!! The legal docs again this guy claim he threatens others around him including using anti gay comments. He appears to bully anyone that speaks out against him though this dog appears to be all bark and no bite in my opinion. Check out all of the yelp reviews he has deleted — huge indication of insecure man. Read the legal documents filed AGAINST Ari Mor's law firm and make your own decision. Yes, Mr. Mor you can try to sue me for defamation, but truth is defense, so good luck."

(5) A two-star "updated review," dated "8/24/2018," posted by user "G.F.," from Manhattan, which is identical to the review posted by user "JR" on "5/15/18." Below the "updated review," is a one-star review, denominated "previous review," dated "8/17/2018," that is also identical to the review posted by "JR" on "5/15/18."

(6) A one-star review, dated "8/22/2018," posted by user "Fran F.," from Montclair, NJ, that is also identical to the review posted by "JR" on "5/15/18."

(7) A one-star review, dated "8/24/2018," posted by user "Gina G.," from Towaco, NJ, which states:

"It was coo coo crazy, mean and creepy all at the same time. Do you think his reviews are real? My opinion is NO WAY. The fact is that, attorneys don't usually get many reviews. Maybe 1-3 at the most over a period of 10 years. This guy is wet behind the years. Just 4 years out of school, and can't even make a phone call. There are many great attorneys with long careers and absolutely no reviews, because an attorney is not the sort of business that most people write reviews about. I certainly wouldn't have thought to do it if he hadn't texted my about how great he is on YELP.

I called Ari Mor & left message on various days but didn't hear back. I tried again a week later on 6/21, and he actually answered quickly told me I could email all the case information and got off the phone. I immediately emailed everything & didn't hear back. I called & left messages and sent a text on 6/27. Finally, on 6/28 he emails stating, `Can we speak tomorrow afternoon'. I immediately responded letting him know that I would be having medical therapy & asked if we could speak in the evening instead. He didn't respond. When I came home from the doctor I felt very ill and tried to email him again. I asked, `Can we speak some time tomorrow?' He didn't respond and when I called the next day there was no answer. I tried to call his # numerous times but never received any call back. On 7/7 I texted again and he responded by text stating that he had been on vacation. He claimed that we had had a time to speak but that I never called (total lie). I texted back, `I usually assume that if I am not able to correspond back timely other counsel will be pursued.' I then asked if he had ever looked over my documents. He responds, `I had which is why we had scheduled the last call time.' (We had no call time scheduled). What he texted after was disturbing. He texted first, "I was contemplating your request to take the matter on contingency basis.' Then his next text, "I'm unable to do that at the moment.' Then another text, `I don't work on Contingency. My fee for Article 78 is $5k & 25%.' Followed by text stating, "My fees are set & there are many people happy to pay them for my work. I urge you to read my Yelp reviews.' (Yes he actually wrote this!) Then he went on sending 5 more babbling text to me and then a last one which stated, `I had asked a few of my colleagues if they were interested in picking up your matter on contingency & I had no response btw."

(8) A one-star review, dated "9/2/2018," posted by user "Gore G.," from Cliffside Park, NJ, which states:

"OK — Everyone this con artist pays for reviews. I have wondered how such a disgusting person could have so many positive reviews. He hired a service that writes fake reviews (check out how a positive review arrives when anyone writes a negative review).

The service pays for posts from San Francisco then changes the location of the fake review.

I posted this review several times since 2017.

Here it is:

I am traumatized from my experience with Ari Mor and do not wish him on anybody. He is not an experienced lawyer. Instead, he is a smooth talking con artist who knows little about NYC housing law and does a lot of pomp and circumstance to swindle desperate people. Please beware.

I had a truly horrible experience with Ari Mor. He is an unscrupulous character who did very little, avoided any contact, and bullied us into giving him money after he did almost nothing. He is a predatory con artist and is a sleazy lawyer. Also, he went to Thomas Jefferson Law School, which you should PLEASE google. It is a factory mill degree law school that is also incredibly unscrupulous. Here is the link to a NYTimes article on it:

NYtimes.com/2016/03/07/b..."

(9) A two-star review, dated "9/2/2018," posted by user "Turner T.," from Manhattan, NY, that is nearly identical to the one-star review posted by user "Gina G." on "8/24/2018."

(10) A one-star review, dated "9/3/2018," posted by user "Edgar E.," from Kearny, NJ, which states:

"I wrote back in early 2018 and checked back. I noticed the fake reviews too but never put two and two together. It confused me that anyone would write anything positive about a man with an obvious mental disorder. How did this derelict get into law school?

Old Review: I was facing an illegal eviction where my landlord terminated my lease and wanted me out of my apartment of 6 years. I was going thru a stressful time thinking that I was going to lose my apt. I decided to search on Yelp for some good Housing Attorneys. Upon my search I ran across Ari Mor. This guy had so many positive reviews. I went thru them most. i was sure i found the right attorney to represent my case.

I called Mr. Mor. He asked me to send him all the documents i had including all letters sent by my landlord. He immediately told me that it will cost me $500 via QP. In addition he said he would take my case on contingency. This meant that he would receive a percentage of whatever monies were awarded thru this case. Mr. Ari Mor sent the letter over to my landlord. Days went by i reached out to Mr. Mor to see if he had heard back from the landlord regarding the letter we submitted in response their termination. He claimed he called, left a message and didn't hear back. Days went by and we haven't gotten a reply to our letter. I reached out to Mr. Mor numerous occasions and he was always unavailable or was on vacation. Each time i called and texted i had to wait days before he replied.

I decided to take matters in to my own hands and gave my landlord's attorney a call to see if they had received this `Demand Letter' sent by Ari Mor. While on the phone I may have heard some laughter in the background then the person answered that Yes in fact they reviewed it but cannot discuss anything with me but only my attorney and he hadn't called.

My first court appearance arrived and the day before Mr. Ari Mor told me that wouldn't be available to appear in court due to family emergency. And that i should call back after court. I was under the impression i had an attorney hired. I went to court and got an adjournment to seek an attorney. Mr. Mor had never signed up on the website as my attorney. So i had none listed. I immediately fired Mr. Mor via email, text. Had i not fired Ari Mor and hired a new attorney, i would have been evicted at this very moment.

I am now out of $500 for a dumb letter suggested by Mr. Mor but thank god i still have my apt no thanks to him. my new attorney won our case."

The moving defendants point out that the amended complaint alleges that the persons who posted these Yelp reviews are the "Named Defendants/DOE Defendant(s) (believed to be Defendant Vincent James Imbesi, Esq. and/or Defendant Brittany Sloane Weiner, Esq.)" (Amended Complaint at ¶ 18, NYSCEF Doc. No. 46), and thus fails to specifically identify which defendant actually made the challenged statements. They cite support for the proposition that this warrants dismissal of Mor's defamation claims (see Jackie's Enters., Inc. v Belleville, 165 AD3d 1567, 1571 [3d Dept 2018]["the complaint does not sufficiently identify the specific third persons to whom the statements were allegedly made or identify which of the three defendants made any of the alleged statements"][emphasis added]; Murphy v City of New York, 59 AD3d 301, 301 [1st Dept 2009]["The complaint failed to establish all the elements of defamation, inasmuch as plaintiff did not allege the time, the manner and the persons to whom the publication was made, nor did he identify the person who made it"] [emphasis added and citation omitted]; Trakis v Manhattanville Coll., 51 AD3d 778, 781 [2d Dept 2008][plaintiff "never identified who spoke the remarks"]).

However, as Mor points out, the First Department has held that a plaintiffs failure to identify exactly which defendant made a particular defamatory statement is not necessarily fatal to a defamation claim (see Cedeno v Pacelli, 192 AD3d 533, 534 [1st Dept 2021][plaintiffs' failure to specify exactly what words were spoken by which defendant was not fatal to defamation claim "since the amended complaint contain(ed) the dates, text, context, URLs, and other information about the defamatory statements(,) allege(d) that the (named defendants) were responsible for authoring, publishing, or causing others to publish them(, and t)here (were) no allegations that the John Does acted independently of the (named defendants)"[citation omitted]; see also Fletcher v Dakota, Inc., 99 AD3d 43, 55 [1st Dept 2012]["While some of these allegations do not specify exactly which of the defendants made a particular statement, that is not a fatal defect"]).

The moving defendants also assert that the defamation causes of action should be dismissed because Mor did not sufficiently allege the time these publications were made. This argument is unavailing because each Yelp review indicates the date on which it was posted.

Additionally, the moving defendants unpersuasively argue that the defamation claims should be dismissed because the alleged defamatory statements are true. While truth is an absolute defense to a defamation claim (see Stepanov v Dow Jones & Co., Inc., 120 AD3d 28, 34 [1st Dept 2014]), the moving defendants have not established that the alleged defamatory statements are true.

The court also disagrees with the moving defendants' contention that the statements complained of constitute non-actionable statements of opinion. "Since falsity is a necessary element of a defamation cause of action and only facts are capable of being proven false, only statements alleging facts can properly be the subject of a defamation action" (Davis v Boeheim, 24 NY3d at 268 [internal quotation marks and citations omitted]). "Expressions of opinion, as opposed to assertions of fact, are deemed privileged and, no matter how offensive, cannot be the subject of an action for defamation" (Mann v Abel, 10 NY3d 271, 276 [2008][internal citations omitted]). "Distinguishing between fact and opinion is a question of law for the courts, to be decided based on what the average person hearing or reading the communication would take it to mean" (Davis v Boeheim, 24 NY3d at 269 [internal quotation marks and citations omitted]). The inquiry "is whether a reasonable [reader] could have concluded that [the statements were] conveying facts about the plaintiff" (id. at 269-270 [internal quotation marks and citations omitted]).

"While a pure opinion cannot be the subject of a defamation claim, an opinion that implies that it is based upon facts which justify the opinion but are unknown to those reading or hearing it, ... is a mixed opinion and is actionable" (id. at 269 [internal quotation marks and citations omitted]). "What differentiates an actionable mixed opinion from a privileged, pure opinion is the implication that the speaker knows certain facts, unknown to [the] audience, which support [the speaker's] opinion and are detrimental to the person being discussed" (id. at 269 [2014][internal quotation marks and citations omitted]).

In deciding whether statements are assertions of fact as opposed to nonactionable expressions of opinion, the court must consider:

"(1) whether the specific language in issue has a precise meaning which is readily understood; (2) whether the statements are capable of being proven true or false; and (3) whether either the full context of the communication in which the statement appears or the broader social context and surrounding circumstances are such as to signal ... readers or listeners that what is being read or heard is likely to be opinion, not fact"

(Davis v Boeheim, 24 NY3d at 276 [quotation marks and citations omitted]). The third factor "requires that the court consider the content of the communication as a whole, its tone and apparent purpose" (id. at 270). "Rather than sifting through a communication for the purpose of isolating and identifying assertions of fact, the court should look to the over-all context in which the assertions were made and determine on that basis whether the reasonable reader would have believed that the challenged statements were conveying facts about the ... plaintiff" (id. [internal quotation marks and citations omitted]). For example, "[e]ven apparent statements of fact may assume the character of statements of opinion, and thus be privileged, when made in public debate, heated labor dispute, or other circumstances in which an audience may anticipate [the use] of epithets, fiery rhetoric or hyperbole" (Sandals Resorts Intl. Ltd. v Google, Inc., 86 AD3d 32, 41-42 [1st Dept 2011][internal quotation marks and citations omitted]).

Here, some of the statements proffered as a basis for Mor's defamation claim are actionable and some are non-actionable. The statements characterizing Mor as "unscrupulous," "a predatory con artist," and a "sleazy lawyer," and describing him as "a smooth talking con artist who knows little about NYC housing law and does a lot of pomp and circumstance to swindle desperate people" are non-actionable in that they suggest that the authors were merely expressing their opinion based on "negative business interaction[s] with" Mor (Torati v Hodak, 147 AD3d 502, 503 [1st Dept 2017]; see Crescendo Designs, Ltd. v Reses, 151 AD3d 1015, 1016 [2d Dept 2017] ["given the context in which the challenged statements were made and viewing the content of the review as a whole, a reasonable reader would have believed that the writer of the review was a dissatisfied customer who utilized the Yelp website to express an opinion"]). In addition, terms such as "smooth talking" and "sleazy" do not have a precise meaning and are incapable of being proven true or false (see Board of Mgrs. of Brightwater Towers Condominium v Shlivko, 186 AD3d 553, 554 [1st Dept 2020]).

However, the following statements are actionable as factual assertions: that Mor has a "mental disorder," "bull[ies] anyone that speaks out against him," "went crazy" in his office by "cursing and screaming and banging the walls," attacked another attorney by "yelling `fucking faggot' among other slurs," posted fake Yelp reviews, and hired a service to write fake Yelp reviews. Therefore, contrary to the moving defendants' contention, Mor sufficiently alleges a cause of action for libel. The moving defendants argue that these alleged false factual accusations should nevertheless be considered non-actionable expressions of opinion in that they were anonymously posted on a consumer review website. In this regard, they rely on a number of cases which they contend stand for the proposition that a comment made in the context of an online review is not actionable (citing Torati v Hodak, 147 AD3d 502, 503 [1st Dept 2017] [finding that statements in anonymously posted on-line reviews were not actionable because while they contained "elements of both fact and opinion, when viewed in context, they suggest to a reasonable reader that the author was merely expressing his opinion based on a negative business interaction with plaintiffs," and noting that readers give less credence to allegedly defamatory remarks published on the Internet than to similar remarks made in other contexts]; Crescendo Designs, Ltd. v Reses, 151 AD3d 1015, 1016 [2d Dept 2017]["given the context in which the challenged statements were made and viewing the content of the review as a whole, a reasonable reader would have believed that the writer of the review was a dissatisfied customer who utilized the Yelp website to express an opinion"]; Stolatis v Hernandez, 161 AD3d 1207 [2d Dept 2018] ["given the context in which the statements ... were made, and viewing the content of the post as a whole, as well as the content of the other contemporaneous posts on the same Facebook pages, a reasonable reader would have believed that the defendant was communicating his opinion"]; Matter of Woodbridge Structured Funding, LLC v Pissed Consumer, 125 AD3d 508, 509 [1st Dept 2015]["Although some of the statements are based on undisclosed, unfavorable facts known to the writer, the disgruntled tone, anonymous posting, and predominant use of statements that cannot be definitively proven true or false, supports the finding that the challenged statements are only susceptible of a nondefamatory meaning, grounded in opinion"]).

However, these cases do not establish a blanket rule that all statements posted anonymously on Yelp, or other on-line review websites, are automatically insulated from liability for defamation. None of them hold that these websites confer "a license to make false factual accusations and thereby unjustly destroy individuals' reputations" (Brian v Richardson, 87 NY2d 46, 52 [1995]["an article's appearance in the sections of a newspaper that are usually dedicated to opinion does not automatically insulate the author from liability for defamation"]). Indeed, the Court of Appeals has "repeatedly emphasized that the forum in which a statement has been made, as well as the other surrounding circumstances comprising the `broader social setting,' are only useful gauges for determining whether a reasonable reader or listener would understand the complained-of assertions as opinion or statements of fact" (id.).

Here, the writers were not utilizing Yelp just to communicate an opinion. Significantly, a reasonable reader could believe accusations that plaintiff was "cursing and screaming and banging walls" in his office, the he paid a service to write fake Yelp reviews, and that he attacked another attorney by "yelling flicking faggot among other slurs," do not represent opinions or hyperbole, but are conveying facts about the plaintiff (see Davis v Boeheim, 24 NY3d at 269-270 ["The dispositive inquiry ... is whether a reasonable [reader] could have concluded that [the statements were] conveying facts about the plaintiff"][internal quotation marks and citations omitted]).

As to the cause of action for libel per se, a defamation plaintiff must plead and prove that he or she suffered special damages unless the defamation falls into one of four per se categories (see Epifani v Johnson, 65 AD3d at 233-234). "When statements fall within one of these categories, the law presumes that damages will result, and they need not be alleged or proven" (id. at 234). The four per se categories include "statements that tend to injure the plaintiff in her trade, business or profession" (Nolan v State of New York, 158 AD3d 186, 195 [1st Dept 2018]). Since the statements at issue tend to injure Mor in his trade, business, or profession, they are actionable as libel per se.

Thus, this branch of the motion is denied.

Breach of the Implied Covenant of Good Faith and Fair Dealing

In the prior order, this court dismissed, with leave to replead, the cause of action for breach of contract on the ground that the original complaint did not specify which provisions of Mor's rental agreements Imbesi Law breached. In his amended complaint, Mor does not plead a cause of action for breach of contract. Instead, he asserts a cause of action for breach of the implied covenant of good faith and fair dealing against Imbesi Law.

"In New York, all contracts imply a covenant of good faith and fair dealing in the course of performance. This covenant embraces a pledge that neither party shall do anything which will have the effect of destroying or injuring the right of the other party to receive the fruits of the contract" (511 W. 232nd Owners Corp. v Jennifer Realty Co., 98 NY2d 144, 153 [2002][internal quotation marks and citations omitted]; see Moran v Erk, 11 NY3d 452, 456 [2008]).

Here, the amended complaint alleges that Imbesi Law breached the implied covenant of good faith and fair dealing by turning off the power to Mor's office space while Mor was trying to conduct client meetings. It further alleges that the phone lines to Mor's office space were not operational and that Imbesi blocked him from accessing internet and printing services.

The subleases, which are annexed to the amended complaint, do not include any terms obligating Imbesi to provide phone, internet or printing services (see Vanlex Stores, Inc. v BFP 300 Madison II LLC, 66 AD3d 580, 581 [1st Dept 2009]["the implied covenant of good faith and fair dealing inherent in every contract cannot be used to create terms that do not exist in the writing"]; Fesseha v TD Waterhouse Inv. Servs., 305 AD2d 268, 268 [1st Dept 2003]["While the covenant of good faith and fair dealing is implicit in every contract, it cannot be construed so broadly as effectively to nullify other express terms of a contract, or to create independent contractual rights"]). However, Mor is also alleging that by turning off the power to his office space when he met with clients, Imbesi Law's actions undermined Mor's ability to conduct business there, which was the fundamental objective of Mor's subleases with Imbesi Law. Thus, the allegations in the amended complaint plead a cause of action for breach of the implied covenant of good faith and fair dealing. The court's role in deciding this motion is not to determine whether Mor will ultimately succeed on the claim.

The moving defendants argue that this claim should be dismissed because it is merely a substitute for a non-viable breach of contract claim. However, "[a] party may be in breach of its implied duty of good faith and fair dealing even if it is not in breach of its express contractual obligations" (Chase Manhattan Bank, N.A. v Keystone Distributors, Inc., 873 F Supp 808, 815 [SDNY 1994]).

The cases relied upon by the moving defendants in this regard are distinguishable. In Phoenix Capital Invs. LLC v. Ellington Mgt. Group, L.L.C., the court dismissed the breach of implied covenant of good faith and fair dealing claim because enforcing it would have been inconsistent with the provisions of the contract, which is not the case here (Phoenix Capital Invs. LLC v. Ellington Mgt. Group, L.L.C., 51 AD3d 549, 550 [1st Dept 2008]).

The moving defendants' reliance on Triton Partners v Prudential Sec. (301 AD2d 411, 411 [1st Dept 2003]) is similarly misplaced. In that case the plaintiff pleaded a breach of contract claim seeking to enforce the terms of an oral agreement pursuant to which defendant purportedly promised to proceed with the terms of the transaction at issue. The court held that the breach of contract claim was correctly dismissed inasmuch as the terms of the oral agreement plaintiff was seeking to enforce conflicted with the terms of an engagement letter that permitted the defendant to terminate the contract without cause on ten days notice. The court held that the breach of the covenant of good faith and fair dealing claim was properly dismissed "since it was merely a substitute for a nonviable breach of contract claim" and that "[a] party has an absolute, unqualified right to terminate a contract on notice pursuant to an unconditional termination clause without court inquiry into whether the termination was activated by an ulterior motive" (id. at 411 [quotation marks and citations omitted]). The instant case is distinguishable because the breach of implied covenant of good faith and fair dealing claim is not inconsistent with a clause in the lease agreements Mor sought to enforce in his breach of contract claim. Sheth v New York Live Ins. Co. (273 AD2d 72, 73 [1st Dept 2000]), is distinguishable on the same basis.

Thus, this branch of the motion is denied.

Commercial Tenant Harassment under Administrative Code 22-902

Administrative Code 22-902 prohibits a landlord from engaging in "commercial tenant harassment," which is defined as "any act or omission [that] would reasonably cause a commercial tenant to vacate covered property, or to surrender or waive any rights under a lease or other rental agreement or under applicable law in relation to such covered property." Such conduct includes, "causing repeated interruptions or discontinuances of one or more essential services," "causing an interruption or discontinuance of an essential service for an extended period of time," "causing an interruption or discontinuance of an essential service where such interruption or discontinuance substantially interferes with a commercial tenant's business," and "engaging in any other repeated or enduring acts or omissions that substantially interfere with the operation of a commercial tenant's business" (Administrative Code 22-902 [a] [ii] [2-4], [10]).

In the prior order, this court dismissed Mor's claim for commercial tenant harassment under Administrative Code 22-902 on the ground that Mor failed to annex a copy of the rental agreement to the complaint and as such, failed to adequately plead a violation section 22-902.

Now, Mor has annexed the rental agreements to his amended complaint and alleges that the following constitutes commercial harassment under the statute: (1) Imbesi Law turned off the power to his unit while he was meeting with clients or otherwise conducting business therein, making it impossible for him to be in the unit for more than an hour or two at a time, and (2) Imbesi Law annoyed Mor and disrupted his ability to meet clients/conduct business within the subject premises by posting harassing notices all over the office so as to annoy harass, and cause embarrassment to Mor and to prevent him from being able to meet clients or conduct business within the subject premises.

The moving defendants point out that in the prior order, the court did not dismiss the commercial tenant harassment claim with leave to replead. Therefore, they assert, it was improper for Mor to again include this claim in the amended complaint.

In the prior order, the court dismissed this cause of action solely for failure to annex the lease agreement to the complaint. Not dismissing the cause of action with leave to replead was inconsistent with the intent of the court as demonstrated by the court dismissing the breach of contract claim with leave to replead on the same basis (see CPLR 5019[a]; Johnson v Societe Generale S.A., 94 AD3d 663, 664 [1st Dept 2012][a correction under CPLR 5019(a) is permitted even were a substantial right of a party is affected, where the error "is clearly inconsistent with the intentions of the court and the parties as demonstrated by the record"]).

The moving defendants assert that dismissal of this cause of action is also warranted on the merits. In so arguing, they refer the court to the contentions raised by them in support of their first motion to dismiss. In support of their first motion to dismiss, the moving defendants argued that Mor improperly pleaded the commercial tenant harassment claim against Weiner and Imbesi because they were not parties to the lease agreements and cannot be liable for Imbesi Law's contractual obligations. However, in the amended complaint, Mor pleads this claim against Imbesi Law only. In support of their prior motion, the moving defendants did not set forth a basis for dismissing the commercial tenant harassment claim against Imbesi Law and set forth no basis for doing so on the merits in support of the instant motion.

Thus, this branch of the motion is denied.

Declaratory Judgment

In the fifth cause of action, Mor is seeking a judgment declaring that the purported "Defamatory Statements are defamatory/libelous and/or defamatory/libelous per se" (Amended Complaint at ¶ 258, NYSCEF Doc. No. 46). Given that Mor's libel and libel per se causes of action are viable, the court declines to dismiss this cause of action.

CONCLUSION

In accordance with the foregoing, it is hereby

ORDERED that the motion by defendants Imbesi Law P.C., Vincent Imbesi, and Brittany Weiner to dismiss the amended complaint against them is denied.

This constitutes the decision and order of the court.

[1] Other than adding bold type to denote the precise words Mor alleges to be defamatory, the spelling, punctuation, capitalization, and spacing in these reviews is quoted as it appears in the amended complaint."

BAD YELP IS USUALLY OPINION NOT LIBEL OR DEFAMATION

No one likes bad reviews but why make a case out of it.

Mirza v. Amar, Dist. Court, ED New York January 12, 2021:

"As an initial matter, I must account for the context in which the allegedly defamatory statements were made, as this can "signal[] to the reader that what is being conveyed is likely to be opinion rather than fact." Levin v. McPhee, 119 F.3d 189, 196 (2d Cir. 1997). Here, the context is a review on Yelp, an Internet forum. "New York courts have consistently protected statements made in online forums as statements of opinion rather than fact." Ganske, 2020 WL 4890423, at *4 (collecting cases). Statements made on Internet forums are made in a unique context in that they are generally informal and unedited. See id. This context leads "readers [to] give less credence to allegedly defamatory remarks published on the Internet than to similar remarks made in other contexts." Id. (quoting Sandals Resorts Int'l Ltd. v. Google, Inc., 86 A.D. 3d 32, 44, 925 N.Y.S.2d 407 (1st Dep't 2011)). That defendant's allegedly defamatory statements appeared on Yelp — an Internet forum specifically designed for the publication of crowd-sourced opinionated reviews about businesses — "conveys a strong signal to a reasonable reader" that the statements are defendant's opinion. Id. When a posting "viewed in its full context, reveals that defendant is a disgruntled consumer and that [her] statements reflect [her] personal opinion based upon [her] personal dealing with plaintiff," the context strongly suggests that the statements are merely "subjective expressions of consumer dissatisfaction" and thus nonactionable opinion. Penn Warranty Corp. v. DiGiovanni, 10 Misc. 3d 998, 1005, 810 N.Y.S.2d 807, 815 (Sup. Ct. 2005).

Because Yelp reviews are used by consumers to provide their positive or negative opinions of businesses, the context strongly signals to readers that the review merely reflects the writer's opinion. As described below, the allegedly defamatory statements here do not overcome that context and are not actionable. Defendant's language is full of opinion and hyperbole and, to the extent that any isolated statement within the review might be construed as factual, when the review is read as a whole and in context, the message conveyed is merely the negative but protected opinion of a disgruntled customer.

Plaintiffs first point to defendant's statements that she "suspect[s] [Dr. Mirza] just uses watered-down Botox for every `filler' procedure" and implying that Dr. Mirza uses "fugazzi fillers," based on her dissatisfaction with the results of the procedure and belief that "Voluma doesn't go in the lips nor nasal folds" and "Voluma has a VERY pin-point thing needle." Plaintiffs claim that these statements are false because Dr. Mirza uses authentic products that are not "fugazzi" (fake) and the product Voluma can be injected anywhere and does not come packed with any special type of needle.

The statement that defendant "suspect[s]" that Dr. Mirza uses watered-down Botox for fillers clearly is a statement of opinion and not fact. Even if the statement is viewed in isolation, the use of the phrase "I suspect" demonstrates that defendant is providing her opinion or belief about the quality of the fillers used by Dr. Mirza.

A statement of opinion may be actionable if it "implies that it is based upon facts which justify the opinion but are unknown to those reading or hearing it." Sorvillo v. St. Francis Preparatory Sch., 607 F. App'x 22, 24 (2d Cir. 2015) (citation omitted). In such a situation, the "actionable element of a `mixed opinion' is not the false opinion itself — it is the implication that the speaker knows certain facts, unknown to his audience, which support his opinion and are detrimental to the person about whom he is speaking." Id. (citation omitted). However, "a statement of opinion that is accompanied by a recitation of the facts on which it is based or one that does not imply the existence of undisclosed underlying facts" is not actionable. Id. (citation omitted).

Here, defendant's opinion that Dr. Mirza did not use Voluma but instead used watered-down Botox does not imply that she has knowledge of facts undisclosed to the audience. Instead, defendant discloses the alleged facts on which she bases her opinion — her belief that the Voluma product is not meant to be injected in the places in which Dr. Mirza offers it and that it requires a different type of needle, and the (unchallenged) fact that Dr. Mirza used a pre-filled syringe rather than mix the product in front of her. According to Dr. Mirza, defendant is wrong about the use and packaging of Voluma. Although the statements about Voluma are facts capable of being proven true or false, `[r]ather than sifting through a communication for the purpose of isolating and identifying assertions of fact, the court should look to the over-all context in which the assertions were made and determine on that basis whether the reasonable reader would have believed that the challenged statements were conveying facts" about the plaintiffs. Enigma, 194 F. Supp. 3d at 280 (quoting Davis, 24 N.Y.3d at 270, 998 N.Y.S. 2d 131). Defendant's false statements about the Voluma product do not convey facts about plaintiffs, but merely serve to support her stated opinion about Dr. Mirza's fillers. Moreover, defendant's opinion was based in part on stated facts about Dr. Mirza's procedure that he does not contend are false. Accordingly, the opinion is not actionable.

The suggestion that Dr. Mirza uses "fugazzi fillers" is not actionable for similar reasons. As an initial matter, the statement actually refers to injections she received from a different doctor, which she states were "not fugazzi fillers," although I agree that the comparison suggests that defendant believes Dr. Mirza does use "fugazzi fillers." However, "fugazzi" is slang and strikes me as the type of loose, figurative or hyperbolic statement that is not generally actionable. Dillon v. City of New York, 261 A.D.2d 34, 38, 704 N.Y.S.2d 1 (1st Dep't 1999). Moreover, the context of the statement adequately signals to readers that this is just defendant's opinion as a disgruntled customer.

Plaintiffs next point to defendant's suggestion that Dr. Mirza is not a "REAL and legitimate doctor" and that readers should save their money to see a "reputable" or "real" doctor. Plaintiffs argue that this statement is false because Dr. Mirza is a licensed medical professional who operates a legitimate business. Viewed in their context, the statements that Dr. Mirza is not a "real" doctor are unactionable figurative and hyperbolic statements, even if they are deprecating to plaintiffs. See Dillon, 261 A.D.2d at 38, 704 N.Y.S.2d 1. Defendant is not implying that she has undisclosed knowledge that Dr. Mirza, in fact, is not a licensed physician, and no reasonable reader would interpret the statements in that way. Instead, the context demonstrates that these are figurative statements meant to highlight defendant's dissatisfaction with Dr. Mirza and the procedure he performed on her.

Plaintiffs next point to defendant's statement that readers should "[a]void this sociopathic doctor who uses multiple aliases, works out of a gym bag, and watered down BS filler." Defendant challenges the first and last part of the statement, arguing that they are false because he does not have any mental health condition and he uses authentic fillers. For the same reasons as described above, the claim that Dr. Mirza uses "watered down BS filler" is not actionable. As to the claim that Dr. Mirza is a sociopath, although it is certainly a hostile statement, it is not actionable defamation. Instead, it is unactionable hyperbole and fiery rhetoric. See Ganske, 2020 WL 4890423, at *5 (collecting cases demonstrating that hyperbole and fiery rhetoric are not actionable defamation). The statement is made in an update to the Yelp review, authored sometime after defendant learned of this lawsuit against her. Defendant writes, "LMAO! He tried suing me for a million dollars because of my review. . . . Too funny. Loser. In your dreams." She tells him that he should get "some serious psychological help instead of suing people who don't like your crappy service and attitude." Given the context and the fiery and excessive language, no reasonable audience could conclude that defendant's statement about Dr. Mirza's mental health has any basis in fact. See Treppel v. Biovail Corp., No. 03-CV-3002, 2004 WL 2339759, at *12 (S.D.N.Y. Oct. 15, 2004) ("[A]n opinion may be offered with such excessive language that a reasonable audience may not fairly conclude that the opinion has any basis in fact."). Accordingly, the statement is not actionable defamation.

The last allegedly defamatory statement is defendant's claim that plaintiffs are "going against state orders to be closed as you are not an essential business." Although this isolated statement is technically one of fact that is capable of being proven true or false, the context of the statement again mitigates against a finding of defamation. This statement was made at the end of a new Yelp review that is best described as a two-paragraph rant about Dr. Mirza, his business, and this suit. Defendant writes, "this sick man is still suing people during a global pandemic. peoples [sic] families and kids are dying mirza [sic]." It goes on for several sentences in which defendant tells the readers that she is "so tired of the bs" and tells Dr. Mirza to "get some ethics already" and that she is reporting his practice to Yelp because she's "done with the fear mongering threats because you don't like your bad reviews." The review demonstrates defendant's significant hostility towards Dr. Mirza. But looking at "the content of the whole communication, its tone and apparent purpose" — namely, to criticize Dr. Mirza for suing authors of negative reviews — no reasonable reader could view the post as expressing any facts about plaintiffs. See Penn Warranty Corp., 10 Misc. 3d at 1004, 810 N.Y.S.2d at 815.

In any event, even if this last statement could be considered defamatory, I could not find that it was made with the requisite level of fault. Where content is arguably within the sphere of legitimate public concern, the standard is whether the publisher acted in a grossly irresponsible manner without due consideration for the standards of information gathering and dissemination. See Ratajack v. Brewster Fire Dep't, Inc., 178 F. Supp. 3d 118, 160 (S.D.N.Y. Mar. 31, 2016). New York interprets matters of public concern very broadly. Defendant's reviews of plaintiffs' public business qualify as commenting on a matter of legitimate public concern and render plaintiffs limited purpose public figures. See Romeo & Juliette Laser Hair Removal, Inc. v. Assara I LLC, No. 08-CV-0442, 2016 WL 815205, at *9 (S.D.N.Y. Feb. 29, 2016) (hair removal company was limited purpose public figure). Thus, plaintiffs must show that defendant published the statements with "actual malice," i.e., "knowledge that the statements were false or with reckless disregard as to their falsity." Id. Here, there are no allegations or evidence to establish that defendant knew that plaintiffs' business is an essential business that could legally operate under New York State guidelines during the COVID-19 pandemic, or that she made this statement in reckless disregard of that truth.

Because all of the allegedly defamatory statements in defendant's Yelp review are nonactionable statements of opinion, plaintiffs' defamation claim is dismissed as a matter of law.

Finally, I note that defendant's posts probably disclose a lot more about her than they do about plaintiffs. This is clearly someone with an axe to grind and I do not believe any reasonable reader could give her posts any credit. It would unduly raise her platform to elevate her philippics to the level of defamation."

YELPING VERSUS DEFAMING

According to Wikipedia: "Ambulance chasing, sometimes known as barratry, is a professional slur which refers to a lawyer soliciting for clients at a disaster site. The term "ambulance chasing" comes from the stereotype of lawyers that follow ambulances to the emergency room to find clients. The phrase ambulance chaser is also used more loosely as a derogatory term for a personal injury lawyer."

Feinberg v. Lans, 2020 NY Slip Op 50706, Supreme Court, West Co. June 22, 2020:

"Plaintiff Gerry Feinberg is an attorney who represented a plaintiff in a medical malpractice action against Dr. David Lans (see Formisano v Lans, Sup Ct, Westchester County, Index No. 55042/2015); defendant Devora Lans is the spouse of the defendant in that case. The complaint in this defamation action was filed on February 12, 2020, based on defendant Devora Lans' publication of the following statement about plaintiff Gerry Feinberg on the Yelp website:

"If you can't find a lawyer to take your case, this is the lawyer for you. Ambulance chaser is too good a term for him."

The author of the posted comment is listed as "Devora L."

Plaintiff's original complaint contained causes of action for an award of money damages and for a mandatory injunction compelling defendant to delete the statement. Plaintiff contends that defendant's use of the phrase "ambulance chaser" renders the published statement defamatory, citing Flamm v American Assn. of Univ. Women (201 F3d 144 [2d Cir 2000]).

In moving to dismiss that complaint, defendant contended, inter alia, that the complaint contained insufficient allegations to state a cause of action for defamation, such as a failure to clearly assert that the statement is about plaintiff and to assert that the statement is false or factually incorrect. With regard to plaintiff's cause of action for injunctive relief, defendant also pointed out the rule that "[a]bsent extraordinary circumstances, injunctive relief should not be issued in defamation cases" (Rombom v Weberman, 309 AD2d 844, 845 [2d Dept 2003]).

In response, plaintiff's cross-motion seeks leave to amend the complaint to add details to address the insufficiency argument; however, confusingly, in his affidavit in support he states that "we are amending the complaint as of right." He submits as Exhibit F to his cross-motion an amended complaint, specifying the date and website URL of the statement at issue, and adding the assertion that "the Statement is either a statement of fact or a statement of opinion which implies that it is based upon facts unknown by the reader which supports the opinion." The amended complaint also omits the second cause of action.

Defendant's opposition to the cross-motion concedes that plaintiff was entitled to amend the complaint as of right, and proceeds with a discussion that treats the amended complaint as the operative pleading. Defendant contends that the amended complaint is similarly deficient, because it still fails to include the word "false" or "falsity," which "is a sine qua non of a libel claim" (Brian v Richardson, 87 NY2d 46, 51 [1995]), and still concerns non-actionable opinion.

Plaintiff did not file, or seek to file, any reply to defendant's argument applying the same legal arguments to the amended complaint as had been applied to the original complaint.

Discussion

First, given plaintiff's correct observation that he was entitled to serve an amended complaint as of right, there is no need for this Court to grant leave to amend. The amended complaint filed as Exhibit F to plaintiff's motion papers is deemed substituted for the original complaint. Although defendant's initial moving papers were addressed to the original rather than the amended complaint, given the substance of defendant's reply papers applying the legal arguments to the amended complaint, without objection by plaintiff, this Court will address the merits of defendant's dismissal motion as applied to the amended complaint.

"The tort of libel arises from the publication of a statement about an individual that is both false and defamatory" (Klepetko v Reisman, 41 AD3d 551, 551 [2d Dept 2007], citing Brian v Richardson, 87 NY2d 46, 50 [1995]). "In determining whether a complaint states a cause of action to recover damages for defamation, the dispositive inquiry is whether a reasonable listener or reader could have concluded that the statements were conveying facts about the plaintiff" (Goldberg v Levine, 97 AD3d 725, 725 [2d Dept 2012]). Four factors should be considered when distinguishing fact from opinion:

"(1) an assessment of whether the specific language in issue has a precise meaning which is readily understood or whether it is indefinite and ambiguous; (2) a determination of whether the statement is capable of being objectively characterized as true or false; (3) an examination of the full context of the communication in which the statement appears; and (4) a consideration of the broader social context or setting surrounding the communication including the existence of any applicable customs or conventions which might `signal to readers or listeners that what is being read or heard is likely to be opinion, not fact'"

(Steinhilber v Alphonse, 68 NY2d 283, 292 [1986], quoting Ollman v Evans, 750 F2d 970, 983 [DC Cir 1984]).

Turning to the first two of the foregoing factors, the phrase "[a]mbulance chaser is too good a term for him" is an "imprecise, subjective characterization" that is not capable of being objectively verified as true or false (see New York Horse Rescue Corp. v Suffolk County Socy. for the Prevention of Cruelty to Animals, 164 AD3d 909, 909 [2d Dept 2018]).

The case on which plaintiff relies, Flamm v American Assn. of Univ. Women (201 F3d 144), is distinguishable. It involved a published directory of attorneys and other professionals, compiled by defendant organizations, in which the following note was included with the plaintiff's listing:

"Mr. Flamm handles sex discrimination cases in the area of pay equity, harassment, and promotion. Note: At least one plaintiff has described Flamm as an `ambulance chaser' with interest only in `slam dunk cases.'"

In reversing the District Court's dismissal of the defamation complaint, which had been based on the reasoning that the statement could not reasonably be constructed as a statement of objective fact (see Flamm v American Assn. of Univ. Women, 28 F Supp 2d 185, 191 [SD NY 1998]), the Second Circuit explained that the statement's attributed description of Flamm as an "ambulance chaser" could reasonably be understood to imply that he engages in the unethical solicitation of clients, which is an accusation that is capable of being proven true or false (201 F3d at 153). In contrast, the statement at issue here, "ambulance chaser is too good a term for him," far from a straightforward and provable assertion of a fact, is the essence of a non-provable opinion.

Furthermore, while the third and fourth Steinhilber factors militated in favor of treating the statement in Flamm as fact-based, the opposite is true in the present case. The Flamm Court observed that

"the challenged language appears in a national directory nearly seventy pages in length, compiled and distributed by a reputable professional organization with a 100 year history of supporting education. The directory purports to list `attorneys and other specialists' willing to consult with women involved in higher education who are seeking redress for sex-based discrimination. The directory provides names, addresses, phone numbers and, generally, a short statement of the person's area of interest or expertise. In such a fact-laden context, the reasonable reader would be `less skeptical and more willing to conclude that [the directory] stated or implied facts'"

(Flamm, 201 F3d at 154 [emphasis added], quoting Gross v New York Times, 82 NY2d 146, 156 [1993]). Here, the context of the statement, namely, its publication on Yelp, supports the opposite conclusion. Negative comments anonymously posted on consumer review websites are typically treated as non-actionable expressions of opinion (see Torati v Hodak, 147 AD3d 502, 503 [1st Dept 2017]). The Internet reviews at issue in Torati v Hodak were quoted as "referring to plaintiff as a `bad apple,' `incompetent and dishonest,' and a `disastrous businessman,' from whom consumers should `[s]tay far away'" (147 AD3d at 503). In dismissing the defamation claims regarding those statements, the Court noted their "[l]oose, figurative or hyperbolic tone" and observed that "Internet reviews contain elements of both fact and opinion," but when viewed in context, they suggest to a reasonable reader that the author was merely expressing his opinion based on a negative business interaction with plaintiffs" (id.). Yelp, in particular, provides an opportunity for people to post both negative and positive reviews, stating their opinions and their perceptions of the relative merits of the reviewed service providers. It is the virtual opposite of a "fact-laden context" (id.).

Moreover, statements that "amount[] to no more than name-calling or a general insult" are treated as non-defamatory because it is generally understood that such name-calling is "a type of epithet not to be taken literally (Klepetko v Reisman, 41 AD3d at 551, citing DePuy v St. John Fisher Coll., 129 AD2d 972, 973 [4th Dept 1987]). Defendant's Yelp post about plaintiff is reasonably and best understood to be, simply, name-calling.


Dismissal is warranted here, because consideration of both the content and the context of the allegedly defamatory statement at issue reflects that it does not form a viable basis for an actionable claim."

RELITIGATING BAD PUBLICITY IS A BAD IDEA

'There's no such thing as bad publicity' is often associated with Phineas T. Barnum, the 19th century American showman and circus owner. But in these days of the web, Yelp, Google, etc., that may not be true and some consumers have taken their right to an opinion to the extreme.

On December 16, 2016, an action for defamation was commenced by a real estate broker against a defendant who created a website entitled “{NAME OF BROKER}.com – The Worst Broker Ever!” which, as the court described, was a "five-page running narrative regarding defendant’s negative experience using plaintiffs’ real estate services. Plaintiffs alleged causes of action for libel, and intentional and negligent infliction of emotional distress." The court denied plaintiff's motion for summary judgment finding by order dated July 25, 2018 "that plaintiffs’ libel claim was not actionable because defendant’s website, as a whole, was “pure opinion" … that defendant’s opinion about {NAME OF BROKER} being the “worst broker ever” was based on so-called “facts” – such as {NAME OF BROKER} failing to appear for a property closing ( see Steinhibler v Alphonse , 68 NY2d 283, 289 [1986] [“A pure opinion is a statement of opinion which is accompanied by a recitation of the facts upon which it is based”]). In particular, this court found defendant’s website, as a whole, to be a consumer criticism, which is not subject to libel claims ( see Themed Restaurants, Inc. v Zagat Survey, LLC , 21 AD3d 826, 827 [1st Dept 2005] [highly critical comments from reviewers in the Zagat guide of a female impersonators cabaret were mere opinion and thus protected]).  Subsequently, defendant moved to dismiss the complaint and the court granted the action in 2019.

This decision was not published or reported but around the time of the decision, it appears that the defendant took down the website. So this would appear to be the end of the story but....

However, in January of this year, the plaintiff moved for re-argument which the court denied be decision dated April 13, 2020. And that decision was reported and the name of the broker was revealed to anyone who reads and reports on court decisions. The lesson - don't litigate bad publicity. If a bad review is plaguing your small business, litigation is not a way to go about dealing with the situation.

MORE RE: THE SUIT ON THE YELP REVIEW

Here is the full decision and order on the recent "Yelp Defamation" suit. What was not reported in the press was that the "defamed" home improvement contractor was unlicensed.

"Technovate LLC v Fanelli 2015 NY Slip Op 51349(U) Decided on September 10, 2015 Civil Court Of The City Of New York, Richmond County Straniere, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on September 10, 2015
Civil Court of the City of New York, Richmond County

Technovate LLC d/b/a MR. SANDLESS OF STATEN ISLAND and MATTHEW GARDINER, Plaintiff,

against

Emily Fanelli a/k/a EMILY OLIVO, Defendant.



Emily Fanelli, Claimant, ,

against

Technovate LLC D/B/A MR. SANDLESS OF STATEN ISLAND Defendant.



003713/15



Technovate LLC and Matthew Gardiner represented by:

Jeffrey David Eisenber, ESQ.

341 Yetman Avenue,

Staten Island, NY 10307

Emily Fanelli a/k/a Emiluy Olivo Self Represented

Philip S. Straniere, J.

"A good name is rather to be chosen than great riches." Proverbs 22:1.

Plaintiffs, Technovate LLC d/b/a Mr. Sandless of Staten Island and Matthew Gardiner, [*2]commenced this civil action against the defendant, Emily Fanelli a/k/a Emily Olivo, alleging that the defendant's postings on internet sites about the plaintiffs qualified as libel per se entitling plaintiffs to damages.

In a separate action, claimant Emily Fanelli, commenced a small claims action against defendant, Matt Gardiner, individually, alleging defective repairs to the floors of her home. The small claims action was dismissed without prejudice on April 16, 2015, when defendant established that he, as an individual, was not a proper party to the proceeding. Claimant then made a motion to restore the matter to the small claims calendar alleging in that application that there was no entity registered as Mr. Sandless. The court heard the application on August 18, 2015 and granted the motion to restore the matter to the calendar amending the caption of the defendant in the small claims matter to Technovate LLC d/b/a Mr. Sandless of Staten Island. The claim against Gardiner individually was not restored.

Plaintiffs produced documentation that since 2006 Technovate, LLC is registered as a domestic limited liability company with the Department of State and that entity has filed a certificate of doing business under an assumed name for Mr. Sandless of Staten Island, with the Richmond County Clerk.

The parties consented to have the matters tried together on August 18, 2015. Plaintiffs Technovate and Gardiner were represented by counsel in both actions. Defendant Fanelli appeared without counsel in both suits.

Background:

Mr. Sandless, which is a national franchise, advertises itself as an "affordable wood floor refinishing without the hassle of dust, odors and long drying periods." It promotes that its chemicals are "green" certified with no mess to clean up. The service is guaranteed for five years. The website advertisement also offers traditional sanding methods.

On February 25, 2015, Mr. Sandless entered into an agreement with Emily Olivo to refinish the living room and dining room floors at 50 Hudson Place, Staten Island, New York. The agreement is reflected on a "service work order" from Mr. Sandless. The work order indicates that Mr. Sandless serves "Morris and Union Counties" which are in New Jersey. The document has no indication of a local Staten Island business being involved.

The price for the services was $695.00. The invoice reflects sales tax being charged, but that amount is deleted leaving the total cost to the defendant at $695.00. At trial each side claimed the other side proposed eliminating the tax for cash. The fact that a merchant and a customer would agree to a "cash" price without the required sales tax being charged is as shocking as learning that there is gambling at Rick's. The service order is allegedly signed by the defendant as agreeing to the work and then later accepting the work as being satisfactorily performed.

Defendant stated that she located Mr. Sandless through the business listings of silive.com, which is an online service run by the Staten Island Advance. She testified that after [*3]the initial work was done, she noticed some areas that needed attention. The problem was described by the plaintiffs as being some raised acrylic. She contacted the plaintiffs and on March 4, 2015, the plaintiffs sent out a crew to address the defendant's concerns. Defendant was apparently dissatisfied with both the initial job and the corrective actions taken. Leading to her admitting to posting reviews about her experience with the plaintiffs on the internet and to the commencement of the small claims action.

On March 4, 2015 identified as "Emily" she posted the following "review" on silive (presented below as it appeared on the website):

this matt the owner is a scam

do not use mr sand less of staten island matt is the name he will destroy you floor he is a liar and con artist beware

On March 4, 2015 a similar review by "Emily F." was posted on Yelp (presented below as it appeared on the website).

this guy mat the owner is a scam do not use him you will regret doing business with this company I'm going to court he is a scam customers please beware he will destroy your floors he is nothing by a liar he robs customers and promises you everything if you want shit then go with him if you like nice work find another he is A SCAM LIAR BULLSHITTER

On March 4, 2015, defendant filed her small claims action in Civil Court (SCRNo.172/15) seeking $3,700.00 in damages for defective repairs.

On March 20, 2015, "Emily F." posted an "updated review" on Yelp (presented below as it appeared on the website).

this is a night mare of a company you can not imagine what my floors look like stay away from matt gardiner your floors start to crack the stuff comes off the floors are left with no shine i had beautify shine before matt came to my house believe me if you want to see matts work and you rare thinking of hiring him contact me per my email and i will gladly show his work here is my e email address it is emilyfanelli@aol.com i would show you his terrible work you would thank me please advise any now who is thinking of wiring with him stay away he is the island biggest scam person around, DO NOT HAVE YOUR FLOORS DONE WITH THIS MAN, CUSTOMERS PLEASE BE WARE OF THIS MAN MATT GARDINER HE IS A SCAM HE TAKES YOUR MONEY AND DESTROYS YOUR HOME

he des not even deserve a one star 0 stars he gets

Defendant on April 1, 2015 hired Filippo Custom Carpentry allegedly to redo all of the floors Mr. Sandless had treated. Filippo began the work on April 7, 2015 and completed it on April 10, 2015. The defendant paid him $2,613.00, including the sales tax, for the service. The expenses incurred in correcting the plaintiff's work are the basis of defendant's small claims action. The invoice from Filippo recites that he had previously seen defendant's floors and describes what the problems he observed after Mr. Sandless treated them. The Filippo invoice is more of a narrative of the conditions at defendant's home rather than a description of the actual work Filippo performed.

On June 28, 2015, plaintiffs brought their defamation action to which the defendant filed an answer on July 30, 2015. Civil Practice Law and Rules (CPLR) §3016(a) in regard to claims for libel or slander requires that the particular words complained of as being the basis for the claim be set forth in the complaint. Plaintiffs' complaint has set forth the specific words of defendant's posting which plaintiffs assert are defamatory.

An unanswered question is how did Fanelli know to sue for $3,700.00 in damages in the small claims action filed on March 4, 2015 when the repairs were not completed until April 10, 2015 and she allegedly had additional expenses because she had to be out of the house for three days while her floors were redone?

Legal Issues:

A. Are the Internet Postings of the Defendant Libel Per Se?

In New York defamation is defined as the making of a false statement of fact which "tends to expose the plaintiff to public contempt, ridicule, aversion or disgrace" [Rinaldi v Holt, Reinhart & Winston, 42 NY2d 369, 379, cert denied 434 US 969 (1977)]. A libel action cannot be maintained unless it is based on the published assertion of fact rather than on assertions of opinion [Brian v Richardson, 87 NY2d 46 (1995)]. For defamation purposes "publication" means communicated to a third person.

The elements of defamation are (1) the publishing of a false statement to a third party; (2) without authorization or privilege; (3) fault, judged at a minimum by a negligence standard; and (4) special harm or defamation per se [Dillon v City of New York, 261 AD2d 34 (1999)]. Under New York law, among the categories where words are per se defamatory are statements that imply criminal activity, or tend to injure a party's trade, occupation or business.

"A statement which concerns a person in his trade or business and tends to injure him therein is actionable per se" (citations omitted). Likewise, with regard to business entities, "statements which impugn the basic integrity, creditworthiness, or competence of the business, are defamatory per se, and thus, special damages need not be pleaded (citations omitted).

[Prince v Fox Television Stations, Inc., 33 Misc 3d 1225(A) (2011)]

New York also adheres to the doctrine that "a publication defamatory of a place or a product is not libel against its owner unless the owner himself is accused of disreputable conduct" [El Meson Espanol v NYM Corp., 521 F.2d 737 (2d Cir 1975)].

Taking the above into account it seems that on the surface both plaintiffs have established a prima facie claim of defamation with injury to their business reputations as the defendant's Internet postings specifically mention Gardiner along with the business, Mr. Sandless. The next analysis is whether the statements of the defendant on the Internet are opinions and thereby protected speech not subject to a claim for damages.

It should be noted that New York recognizes a separate torts of defamation and disparagement of goods. Statements concerning a party's integrity or business methods form the [*4]basis of a defamation claim while statements denigrating the quality of a party's goods or services constitute disparagement of goods [Fashion Boutique of Short Hills, Inc. v Fendi USA, Inc., 314 F.3d 48 (2d Cir 2002)]. Plaintiffs did not plead a cause of action for disparagement of goods. An examination of the defendants on-line postings disclose that she is attacking the integrity of the plaintiffs and their business practices rather than the disparaging the product, so no cause of action for disparagement exists.

The courts have adopted a four part test to determine whether statements are protected opinion or unprotected assertions of fact [Ollman v Evans, 750 F2d 970 (DC Cir 1984) cert denied 471 US 1127 (1985)]. The four factors are (1) whether the statement has a precise meaning so as to give rise to a clear factual implication; (2) the degree to which the statements are verifiable, that is, objectively capable of proof or disproof; (3) whether the full context of the communication in which the statement appears signals to the reader its nature as opinion; and (4) whether the broader context of the communication so signals the reader.

The standard in New York for distinguishing protected expressions of opinion from actionable assertions of fact was clarified in Steinhilber v Alphons, 68 NY2d 283 (1986)]. The court noted:

A "pure opinion" is a statement of opinion which is accompanied by a recitation of the facts upon which it is based. An opinion not accompanied by such a factual recitation may, nevertheless, be a "pure opinion" if it does not imply that it is based upon undisclosed facts. When, however, the statement of opinion implies that it is based upon facts which justify the opinion but are unknown to those reading or hearing it, it is a "mixed opinion" and is actionable. The actionable element of a "mixed opinion" is not the false statement itself-it is the implication that the speaker knows certain facts, unknown to his audience, which support his opinion and are detrimental to the person about whom he is speaking.

The courts have been struggling with the application of the traditional analysis of defamation to the Internet. As noted in Sandals Resorts International Ltd v Google, Inc., 86 AD3d 32, 43 (2013), the culture of the Internet is characterized by a more freewheeling, anything-goes style of writing where bulletin boards and chat rooms may be the repository of a wide range of casual, emotive, and imprecise speech where the readers of the offensive statements do not necessarily attribute to them the same level of credence they would to statements made in other contexts. On-line speech often is characterized by the use of slang, grammatical mistakes, spelling errors, and a general lack of coherence. Many, if not, all of which exist in defendant's postings.

The defendant argues that she has a first amendment right to give her opinion of the plaintiffs. Courts are cognizant of the need to balance that cherished freedom of expression against the right of persons not to suffer damages as a result of defamatory comments.

In order to protect our prized First Amendment rights to free speech and press as well as debate on public issues, courts have insulated defendants from liability for stating opinions that another person was "immoral" and "unethical" (citations omitted) and for "lying, deceiving, [and] making false promises" (citations omitted).

[Rafkofsky v Washington Post, 39 Misc 3d 1226(A) (2013)]

Analyzing the three posts by the defendant, the court must decide whether they are "pure opinions" which are not actionable by the plaintiffs, or "mixed opinions" which are. Was the defendant upset about the job plaintiffs performed and just "blowing off steam" in her postings or was she intent on damaging the plaintiffs' business reputation? The defendant's actions and the post event timeline seems to lean to the conclusion the latter was her intent.

Clearly the initially posting on silive.com is not a "pure opinion" in that in it there are no facts presented in the post to support the defendant's statement "do not use mr sand less of staten island matt is his name he will destroy you floor he is a liar and a con artist beware." In this posting, the defamation is directed to plaintiff Gardiner and not the business. Defendant calls him a "liar" and "con artist." There are no specifics to support the allegations and from which a reader could determine whether there is a basis in fact for the statements as "destroy you[sic] floor" is too general to be considered the statement of a fact and indicates that the defendant has other information not being put forth in the posting. This qualifies as a "mixed opinion."

The first Yelp posting on March 4, 2015 also appears to be a "mixed opinion" and not a "pure opinion" as it does not disclose any facts from which a reader could evaluate defendant's statements for their truth. Defendant claims that Gardiner is a "scam" without reciting any specifics as to the "scam." The statement that she plans to go to court, might give a reader some belief that there is a legitimate basis for the defendant's complaints. However, it does not provide any facts to support her allegations.

The second Yelp posting on March 20, 2015 is "pure opinion" and is protected as it gives the reader some details as to why the defendant was dissatisfied and provides her email address to contact her for more information and offers to have persons interested come to her house to see the plaintiffs' work product. This posting is neither defamatory to the business, Mr. Sandless. Nor to Gardiner, although the defendant continues to seek to impugn Gardiner's integrity.

The above being said, considering at this point, March 20, 2015, the defendant had already commenced her small claims action on March 4, 2015, where any legitimate claims for damage to her floors would be resolved, the only reason to submit another posting was to damage plaintiffs' reputation.

New York also follows the "single instance rule." This provides where the defamatory statement charges the plaintiff with a single instance of misconduct in connection with the plaintiff's trade, occupation or profession, it is not actionable as defamation per se and the plaintiff must establish special harm arising from the statement [Amelkin v Commercial Trading Co., 23 AD2d 830 (1965)]. However, if the defamatory language charging only a single instance of misconduct imputes general incompetence, lack of integrity, or lack of fitness for the plaintiff's trade, office, profession or calling, the special harm requirement is obviated [November v Time Inc., 13 NY2d 175 (1963)]. Based on the facts of this case, the single instance rule is not applicable. Defendant was alleging misconduct in regard to plaintiff Gardiner's trade, occupation or profession which would cause potential customers of the plaintiff to avoid using his services. She referred to him as a "scam," "liar," "bullshitter," "con artist" and someone who "robs" you. Terms such as "scam" "con artist" and "robs" imply actions [*5]approaching criminal wrongdoing rather than someone who failed to live up to the terms of a contract. Had the defendant posted that the plaintiffs failed to do what they promised or that the floors did not turn out as she expected, she probably would not be a defendant in this litigation.

It must be concluded that the statements of the defendant about defendant Gardiner are actionable libel per se. They were personal in their invective and were designed to impugn his integrity and business practices with the intent to damage his business reputation. The statements as to the quality of the services performed by defendant Mr. Sandless are protected speech of a dissatisfied customer. They are referenced with some specific facts, the opportunity for others to contact the defendant directly and the possibility to visit her home and observe the refinishing themselves. Technovate d/b/a Mr. Sandless does not a have cause of action.

B. Are the Plaintiffs Entitled to Damages?

When a plaintiff establishes that the defendant's statements amount to defamation per se, there is no need to prove special damages. The law presumes that the making of the statement inflicts harm to the plaintiff's reputation entitling the defamed plaintiff to damages. Special damages, that is economic loss, arising from the publication of the defamation to third parties, must be proven in all cases were defamation per se is not applicable.

As stated above, the court has determined that the plaintiff Technovate has not been defamed by the defendant's statements. They were statements of opinion as to the quality of the work performed. Someone reading defendant's Internet posting could compare her statements to those made by other customers, many if not most, were positive and satisfied with Technovate's work and make there own decision on whether or not to use the company and its product.

Plaintiffs submitted documentation attempting to prove actual damages through the loss of income in March 2015 and April 2015 because of the defendant's postings [Liberman v Gelstein, 80 NY2d 429 (1992)]. Unfortunately, plaintiffs produced two statements from 2014 and none from 2015. Even if the 2015 statement was produced it would have little weight on the issue of damages because statements 2011 through 2013 show variations between monthly billings each year. In addition, the statements are not on a letterhead or in any other way described so as to be able to determine their purpose and accuracy. Plaintiff Gardiner had his self-serving testimony in regard to these issues. A better record might be copies of reports plaintiff prepared for the franchisor, Mr. Sandless, or quarterly sales tax returns, or some other document generated for a purpose other than the litigation. In any case, the loss of income would be for a claim by Technovate and not Gardiner as an individual and the court has determined Technovate was not defamed.

As to plaintiff Gardiner's damages, the court has determined that defendant's statements in regard to his honesty in business transactions qualified as defamation per se entitling him to general damages without proof of special harm. The amount of general damages in a defamation action must be supported by competent evidence concerning the injury, but there is no need to produce evidence which assigns an actual dollar value to the injury [Wolf Street Supermarkets v McPartland, 108 AD2d 25 (1985)]. The court finds that the general damages suffered by the [*6]plaintiff Gardiner amounts to $1,000.00. Based on the documentation submitted by the parties concerning the defendant's Internet postings, it does not appear that too many people are viewing comments about Mr. Sandless on either the silive or the Yelp website. Thereby limiting the harm Gardiner suffered to his reputation.

C. Should Plaintiff Be Licensed?

Neither plaintiff, Technovate nor Gardiner is licensed as a home improvement contractor pursuant to New York City Administrative Code (NYCAC) §20-386. Plaintiffs contend that they are not required to be licensed by the New York City Department of Consumer Affairs. The statute defines a "home improvement" as "the construction, repair, replacement, remodeling, alteration, conversion, rehabilitation, renovation, modernization, improvement or addition" to a building used for residential purposes. Excluded from the definition is "painting" not incidental or related to a home improvement.

There is also a state law requiring licensing [General Business Law (GBL) Article 36-A]. Although the NYCAC does not refer to flooring, the state statute does. Because the both statutes are designed to protect consumers from unscrupulous business practices, the failure of the local law to specify "flooring" in its definition does not mean that the state law requiring licensing is inapplicable. A reading of both statutes leads to the conclusion that the type of improvements listed are not meant to be exclusive but are in fact examples of some of the work specifically covered. The failure to list something does not mean licensing is not necessary. The nature of the work determines whether it is a home improvement and not the label placed on it.

Based on the description of its services, Mr. Sandless is engaged in a home improvement and needs to be licensed. This is supported by the services offered on the "contract" which include "wood floor" and "carpentry."

It should be noted that the "contract" with the defendant is on a New Jersey billhead of Mr. Sandless and gives no information about Mr. Sandless of Staten Island such as a local address or telephone number. This information is available on the businesses website.

The fact that the plaintiff is not licensed and that the "contract" is for a New Jersey business and not the plaintiff, a Staten Island based franchisee, amounts to a deceptive business practice under GBL §349 entitling the defendant to damages. The extent of those damages is what is difficult to assess.

The court will not address the issue of whether the "contract" and the acknowledged acceptance of the work were signed by the defendant. She denies signing them and neither signature appears close to the signature on the affidavit accompanying the order to show cause in the small claims action. Although the signatures on the plaintiffs' "contract" appear to be closer to the defendant's signature on the Filippo Custom Carpentry contract.

In the past this court has on numerous occasions held that the failure of the business to be licensed prevents that business from collecting any money due to it on a breach of contract [*7]claim. Likewise, the court has denied recovery to any consumer seeking his or her money back once they learned that the contractor was unlicensed. The court has taken the position that because there was no license and the consumer failed to investigate the license status with the Department of Consumer Affairs, the agreement is illegal and the court will not enforce its terms leaving the parties without redress in the court system.

The court has allowed the consumer recovery when the unlicensed contractor actually caused physical damage to the property requiring remedial measures to correct the improper work. However, that work must be done by a licensed contractor in order to recover. The theory of recovery is based on negligence of the unlicensed contractor and not contract.

The problem in this action is that the defendant was dissatisfied with the work of the unlicensed contractor but that when she had the work corrected, she hired another unlicensed contractor, or at least his billhead does not indicate licensing, and no proof of Filippo being licensed was presented. Based on the description of what he observed and proposed to do, Filippo did work far beyond that of the plaintiffs. The corrective work was a traditional sanding and refinishing and not a "green" treatment of the floors. As a result the court cannot award her any actual damages in this regard. Any damages she suffered must be based on some other legal theory.

Under the statute, GBL §349(h), a consumer who is subjected to deceptive business practices, is entitled to actual damages or fifty dollars, whichever is greater as well as punitive damages not to exceed three times the actual damages up to one thousand dollars. She cannot collect the money she paid to plaintiffs as actual damages, because she hired an unlicensed contractor and lacked expert testimony to establish that the work was not properly performed by the plaintiffs. Likewise she cannot claim actual damages for the monies paid to Filippo because there is no showing he was licensed, his invoice does not describe the work he actually did, the rooms serviced or square footage, or any charge for materials and labor.

The court finds that each violation of the statute, not being licensed and using a New Jersey form for a New York entity entitles the consumer to a separate $50.00 award or a total of $100.00. In addition, punitive damages of $150.00 on each violation calculated as three times each $50.00 award. The total due from Mr. Sandless for violating the General Business Law is $400.00.

However, because the defendant did not file a counterclaim, this award cannot be made in the plaintiffs' civil court action. Neither can it be used as a set-off against the damage award assessed against her because that award is in favor of the individual plaintiff, Gardiner, on his defamation claim. This award to Fanelli is for the business entity, Technovate, LLC not comply with the General Business Law. The defamation claim of Technovate was dismissed.

D. Defendant's Small Claims Action.

Defendant's small claims action was amended to eliminate Gardiner as an individual defendant and to allow her to proceed against Technovate LLC d/b/a Mr. Sandless of Staten [*8]Island. This entity agreed to be the named defendant even though as noted above the "contract" between the parties is between the claimant and "Mr. Sandless" as a trademarked entity at an undisclosed address but with New Jersey telephone numbers and a statement that it services Morris and Union Counties.

The claimant is not entitled to be compensated for the work done by Filippo Custom Carpentry. There is no indication that he is a licensed contractor. In addition, the work he performed is totally different from the work Mr. Sandless performed. Filippo did a traditional floor stripping and refinishing which involved removing all of claimant's furniture from the rooms in question, and having her stay out of the house three days. At best, claimant would only be able to recover what she paid to Mr. Sandless, if the court accepted that it was not done correctly rather than she was just a dissatisfied customer. Expert testimony was needed to establish that the defendants in the small claims action breached the contract and its warranties. No expert testimony was presented. The narrative by Filippo on his invoice is not admissible evidence in that regard.

Further, the Filippo contract does not describe the floors that he redid, either by room or square footage. It does not distinguish between materials and labor. So it is not acceptable as proof of what work Filippo actually performed. The court cannot accept it as evidence.

Claimant's cause of action is dismissed on the merits. She has failed to prove her prima facie case.

However, as set forth above, the claimant has established that defendant, Technovate in this small claims action violated the General Business Law. She is entitled to $400.00 in statutory damages against Technovate in this small claims proceeding.

Conclusion:

Plaintiff Gardiner has established that he has suffered damages as a result from the per se defamatory statements posted by defendant Fanelli on-line. He is entitled to a judgment of $1,000.00 with interest from the date of judgment costs and disbursements.

Plaintiff Technovate, LLC d/b/a Mr. Sandless of Staten Island's cause of action for defamation is dismissed on the merits. Defendant's comments about the quality of the workmanship were opinion and protected speech.

Plaintiff Technovate is required to be licensed to perform the services it advertises. The failure to be licensed and the failure to use a contract form reflecting its true name and location are both violations of the General Business Law entitling the defendant to statutory damages of $400.00 to be awarded in the small claims action.

Claimant Fanelli's small claims action for breach of contract and defective repairs is dismissed on the merits. She has failed to prove her prima facie case. However, she did establish that the defendant, Technovate, LLC, violated the General Business Law and claimant is entitled to $400.00 with interest from the date of judgment, costs and disbursements.

Exhibits, if any, will be available at the office of the clerk of the court thirty days after receipt of a copy of this decision.

The foregoing constitutes the decision and order of the court.

Dated: September 10, 2015

Staten Island, NY

____________________________________

HON. PHILIP S. STRANIERE

Judge, Civil Court"