Leser v Penido

[*1] Leser v Penido 2008 NY Slip Op 51645(U) [20 Misc 3d 1127(A)] Decided on July 15, 2008 Supreme Court, New York County Kapnick, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 15, 2008
Supreme Court, New York County

Jean Walton Leser d/b/a the Luxury Portal, Plaintiff,

against

Luz Penido a/k/a Karen Kooper and Christopher Penido a/k/a Karen Kooper, Defendants.



104005/07



Counsel for Plaintiff: Victoria M. Brown, Esq., 342 W. 83rd Street, New York, New York 10024, Tel: 212-874-6181

Cousel for Defendant: Richard A. Altman, Esq., 285 W. 4th Street, New York, New York 10014, Tel: 212-633-0123

Barbara R. Kapnick, J.

In this action, plaintiff Jean Walton Leser d/b/a The Luxury Portal, an E-Bay on-line store' selling pre-owned luxury handbags and accessories, claims that defendants Luz Penido a/k/a Karen Kooper and Christopher Penido a/k/a Karen Kooper sought to destroy her business (i) by making false allegations about her and her business on the internet, and (ii) by "saying and doing things," while using her name, photo and e-mail address on the internet, including a pornographic website, in order to cast plaintiff and her business in a negative and false light.

Plaintiff's original Amended Complaint set forth seven (7) causes of action. Plaintiff moved under motion sequence number 001 for a preliminary injunction:

(a) directing defendants to cease and desist from impersonating the person or business of plaintiff in any way, including on the internet;

(b) directing defendants to cease and desist from posting false statements about plaintiff and/or plaintiff's business anywhere, including the internet;

(c) directing defendants to cease and desist from copying, duplicating, sketching, drawing, photographing, downloading, uploading, altering, destroying, photocopying, replicating, transmitting, delivering, sending, mailing, communicating or [*2]conveying the name of the plaintiff, the name of plaintiff's business, any personal information about plaintiff, plaintiff's e-mail addresses, IP addresses, trade names, logos, photos, home or business addresses, and items sold or to be sold by plaintiff, to any third parties by any means whatsoever; and

(d) directing defendants to take down and have terminated any websites, blogs, subscriptions or any other postings on the internet made by defendant using or referring to any names connected with plaintiff or plaintiff's business; and

(e)issuing a warrant to obtain records stored in computers at defendants' home in Jamaica, Queens for the purpose of forensic examination by a computer expert for a period not to exceed 72 hours (upon which time the computer[s] will be returned) and to order and permit and so order' plaintiff's computer consultant to make a forensic image of the office computer used by defendant Christopher Penido (located at his place of employment, New York University - Information Technology Services Division: Communications & Computing Services Department) as long as any information obtained thereby is held confidential except as relates to this case and except if the information obtained indicates illegal activity.[FN1]

Defendants opposed the motion and moved to dismiss the Amended Complaint with prejudice for failure to state a cause of action.

By Decision/Order dated January 14, 2008, this Court dismissed five of the seven original causes of action with prejudice. However, this Court granted plaintiff leave to replead her claim for prima facie tort. This Court also found that the Amended Complaint sufficiently stated a claim for libel per se to the extent it was based on plaintiff's claim that her picture was posted by defendants on a pornographic website, but granted plaintiff leave to replead her claim for libel with greater specificity as it related to alleged defamatory statements.

Defendants now move for an order: [*3]

(1) pursuant to CPLR § 3211(a)(7) dismissing plaintiff's Amended Complaint with prejudice and without leave to replead for failure to state a cause of action and pursuant to CPLR § 8303-a awarding costs and reasonable attorneys' fees on the ground that this action is completely without merit in law and fact; or, in the alternative,

(2) pursuant to CPLR § 3014, directing plaintiff to separately number her paragraphs in her Complaint so that each one contains, as far as practicable, a single allegation, and pursuant to CPLR § 3024, requiring plaintiff to state her claims more definitely and concisely, and to strike scandalous or prejudicial matter unnecessarily inserted therein.

Plaintiff opposes the motion and cross-moves for an order:

(1) permitting her to file a Second Amended Complaint, which is identical to the Amended Complaint - which, she contends, sets forth claims for libel and prima facie tort - except that it has more paragraph numbers; and

(2) lowering the bond amount paid by plaintiff from $3,000.00 to $300.00, pending the outcome of this litigation.

Discussion

Plaintiff's proposed Second Amended Complaint more closely conforms with the requirements of CPLR §§ 3014 and 3024. Accordingly, plaintiff's cross-motion is granted to the extent of permitting plaintiff to file a Second Amended Complaint in the form annexed to the cross-moving papers.

Those portions of defendant's motion seeking an order directing plaintiff to separately number the paragraphs in her Complaint and to state her claims more definitively and concisely are accordingly denied as moot.

Prima Facie Tort

"Prima facie tort is designed to provide a remedy for intentional and malicious actions that cause harm and for which no traditional tort provides a remedy." Curiano v Suozzi, 63 NY2d 113, 118 (1984). The elements necessary to make out a claim for prima facie tort are "(1) intentional infliction of harm, (2) resulting in special damages, (3) without excuse or justification, and (4) by an act or series of acts that would otherwise be lawful." Burns Jackson Miller Summit & Spitzer v Lindner, 59 NY2d 314, 332 (1983).

"A critical element of the cause of action is that plaintiff suffered specific and measurable loss, which requires an [*4]allegation of special damages (citations omitted)." Freihofer v Hearst Corp., 65 NY2d 135, 143 (1985). A complaint which "sets forth damages in round numbers which amount to mere general allegations of lost sales from unidentified lost customers (citations omitted)... is conjectural ... and speculative ... [and] insufficient ... to support a cause of action for prima facie tort." Vigoda v DCA Prods. Plus, 293 AD2d 265, 266 (1st Dep't 2002)). See also, Drug Research Corp. v Curtis Pub. Co., 7 NY2d 435, 441 (1960) in which the court held that a claim for damages based on "round figures, with no attempt at itemization, must be deemed to be a representation of general damages" and does not state a claim for special damages.

In the instant case, plaintiff's Second Amended Complaint alleges (i) $60,000.00 in special damages based on "a six month down time from February 22, 2007 through August 2007 (calculated by comparing receipts from September 2007 and the months following therewith)", (ii) severe emotional distress requiring special counseling, and (iii) psychological harm and loss of confidence which is "incalculable." However, it contains no itemized allegations regarding specific customers, accounts, businesses, or any other specific loss arising out of defendants' alleged wrongdoing.

Moreover, in order to allege a claim for prima facie tort, the complaint must also allege that the sole motivation for the alleged harmful conduct was "disinterested malevolence" (Curiano v Suozzi, supra at 117) as distinguished from "economic self-interest" (Kitchen v Sothebys, 2008 WL 440422 [Civ. Ct., NY Co.]).

In this case, plaintiff cannot make the requisite showing of "disinterested malevolence" since the parties are competitors in the luxury handbag business and thus defendants had an economic interest in damaging plaintiff's business.

Accordingly, based on the papers submitted and the oral argument held on the record on April 9, 2008, that portion of defendants' motion seeking to dismiss plaintiff's claim for prima facie tort is granted.

Defamation Libel per se

In its prior Decision/Order, this Court found that plaintiff's Amended Complaint was deficient to the extent it sought to assert a claim for libel because it failed to set forth "the particular words complained of," as required by CPLR § 3016(a). [*5]

Plaintiff's Second Amended Complaint specifically sets forth the words (and images) allegedly used by the defendant, including the following:

90. "What I wouldn't do to be that girl? Give me some of that?" (This statement was included in a fake posting on the pornographic website, www.nastyboards.com).

* * *

103. "Yeah but I though[t] you wouldn't understand LOL eh eh slut whore it's more put, I'm naughty. I like sex and proud of it... was tired that's why. I posted in the middle of the night. I wanted to say that I'm a biggest salope, do you speak English?... Hi all, I'm American and I'm the biggest salope here ok? ("salope" is French for "whore")."

* * *

116. "It's not only Vlad's fault, the last mod Irene didn't do her job correctly." (This was a fake posting on www.thebagforum.com, an online luxury handbag chatroom, where the plaintiff was a moderator.

* * *

128. "I love fake bags despite what goes on in the Purse Forum." (Posted to a website that sold counterfeit handbags)

* * *

138. "My name is Jean. I've been having a lot of trouble lately with my emotions. I seem to have extreme mood swings and am unable to cope with them. I have been very belligerent to good people while being kind to those that put me down. I'm not sure what to do at this point? I have sought therapy and it has not helped. Now I [feel] like I'm losing. I am a moderator on a site and it has sent me over the edge. I feel like I am starting to hear "voices" in my head about people in the forum. I sometimes fantasize about them and then go into wild fits about why I would think such things. I have no idea what to do. Please help me someone, this is my cry for help. God Bless America Jean" (posted on www.About.com, using plaintiff's trade/user name AMAMXR)

* * *[*6]

In several instances, plaintiff includes graphic pictorial evidence allegedly used by the defendants in conjunction with the above statements.

While these words and images could have been better organized, they do serve to state with sufficient particularity the gravamen of the Plaintiff's Complaint. As such, the plaintiff has inartfully, but successfully, pled with sufficient specificity her claim for libel.

Accordingly, defendants' motion to dismiss said claim is denied. That portion of the motion seeking to strike allegedly scandalous or prejudicial matter from the Complaint is denied since the graphic images and words relate directly to plaintiff's libel claim. However, paragraphs 42, 43, 44 and 45 of the Complaint are stricken since they contain legal arguments and cite to case law which is inappropriate in a Complaint. Also, paragraph 101 is stricken as superfluous.

That portion of the cross-motion seeking to lower the amount of the bond is denied, in the discretion of the Court.

Defendants shall serve an Answer to plaintiff's Second Amended Complaint within 20 days of service of a copy of this order with notice of entry.

A hearing on plaintiff's motion for a preliminary injunction shall be held in IA Part 12, 60 Centre Street, Room 341 on September 22, 2008 at 10:00 a.m.

This constitutes the decision and order of this Court.

Dated: July, 2008

BARBARA R. KAPNICK

J.S.C. Footnotes

Footnote 1:This Court granted a temporary restraining order (as modified by Order dated April 23, 2007) which provides that "pending the further hearing of this matter, the defendants are directed to desist and refrain from impersonating the person or business of the plaintiff in any way, including on the internet."

The motion for the preliminary injunction is being held in abeyance pending the determination of this motion and cross-motion.