Seldon v Compass Rest.

Annotate this Case

Download PDF

Seldon v Compass Rest. 2012 NY Slip Op 32673(U) October 21, 2012 Sup Ct, NY County Docket Number: 103050/11 Judge: Joan A. Madden Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. NNED ON 1012512012 [* 1] SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY A. MADDEN 3.5,C" ~~~~ Index Number : 103050/201 I SELDON, PHILIP PART VS INDEX NO. COMPASS RESTAURANT MOTION DATE Sequence Number : 001 MOTION SEQ. NO. DISMISS The following papers, numbered 1 to Notice of MotionlOrder to Show Cause Answering Affidavits , were read on this motion tolfor - Affdavits - Exhibits - Exhibits Replying Affidavits IW s ) . IN d d . IN O W . $&/-- Dated: 1. CHECK ONE: I/ ErDoE9. aAN A. MADDEN 0NON-&&POSITION DENIED 0GRANTED IN PART 0OTHER ................................................... 2. CHECK AS APPROPRIATE: 3. CHECK IF APPROPRIATE: .............. ................................................ , J.S.C. 0SETTLE ORDER 0DO NOT POST SUBMIT ORDER FIDUCIARY APPOINTMENT REFERENCE [* 2] PHILIP SELDON, INDEX NO. 103050/11 Plaintiff, -against- COMPASS RESTAURANT, COSMIC GROUP DBA COMPASS RESTAURANT, COSMIC GROUP, INC. DBA COMPASS RESTAURANT, COSMIC GROUP, LLP DBA COMPASS RESTAURANT, COSMIC GROUP, COSMIC GROUP, INC., COSMIC GROUP, LLP, ROXANNE DOE, JANE DOE, AND ROXANNE@,COMPASSIiESTAURANT.COM, - JOAN A. MADDEN, J.: In this action to recover damages for defamation, defendant Cosmic Group, LLC d/b/a Compass Restaurant ( Compass ) moves for an order pursuant to CPLR 321 1(a)(7) dismissing the complaint for failure to state a cause of action. Plaintiffpro se Philip Seldon opposes the motion and cross-moves for an order compelling the deposition of Roxanne Doe and Julie Concannon, an order finding Roxanne Doe and Julie Concannon in contempt of court, and In his affidavit in support of the motion, counsel for defendant Compass states that the complaint incorrectly names Compass Restaurant, Cosmic Group DBA Compass Restaurant, Cosmic Group, Inc. DBA Compass Restaurant, Cosmic Group LLP DBA Compass Restaurant, Cosmic Group, Cosmic Group, Inc. and Cosmic Group, LLP, and that the proper name for the corporate defendant is Cosmic Group, LLC d/b/a Compass Restaurant. Counsel also states that upon information and belief, the defendants named as Roxanne Doe, Jane Doe and Roxanne@CompassRestaurant.com have not been served with process. 1 [* 3] an order granting sanctions against James Frank [the attorney for defendant Compass] individually for frivolous conduct.)) Plaintiff Seldon commenced this action on March 1 1,201 1 by filing a one-page Summons with Notice, for libel, libel per se, and seeking relief in the sum of $1 million. Plaintiff subsequently served a complaint alleging that on or about March 2,20 1 1, defendants including but not limited to Roxanne Doe, Jane Doe and Roxanne~compassrestaurant.com published to Julie Concannon and upon information and belief others, identity to be determined in discovery, an email which contained multiple defamatory statements about Plaintiff. The complaint quotes the following statements contained in the email which plaintiff alleges are false and defamatory, being libel per ~ e ) ) : ~ he s a serial suer, scammer, spammer, embezzler, and revenge artist. Here are a few supporting links . . there are some more our [sic] there, but some are PDF Downloads, and I didn t want to make you download a hunk of shit: revenge expert: http://articles.latimes.coni/l995-10-0 1/news/mn-5 1957 1 nightschool Philip Seldon sued by Andrew Spinnelli for fraud and what appears to be embezzlement: httl3://law.iustia.com/cases/new-iersev/a~pellate-divisionunpublished/20 1O/a5095-08-o~n.html Philip Seldon tries to counter-sue Michael Flomenhaft, after he himself had been sued for rfrivolous litigation - http://law.iustia.corn/cases/new-york/othercourts/2006/2006-52443.html Philip Seldon tries to review a book that he co-wrote, scroll d o w n and look at the responses: http:/www.amazon.codreview/R2MUGCTMN767BO The court s computer records do not indicate that the complaint or any affidavits of service were filed. 3 It is unclear whether the complaint quotes the email in its entirety, as neither plaintiff nor defendant submits a copy of the of the actual email. 2 [* 4] Philip Seldon getting in trouble for making fake websites that mimic T-Mobile: http://www. wipo.int/amc/en/domains/decisions/html/2007/d2007-0674. html Philip Seldon sues Harvard Press (this is a PDF download) httw://pacer.rnad.uscourts. aov/dc/cgibin/recentops.pl?filename=otoole/pdf/seldon+vt-harvard+order .pdf Philip Seldon T k s t Deal Magazine spam SCAM (scroll down a bit) http://www.abcstweb.coi~/forunis/showthread.~hp?t-50044 Philip gets caught by Eric Larson, who clearly states that this guy is a scammer: hltp://www.money~nakcr~roup.com/Swisscash~S wisscashnett26058.html&st=15060 On May 18,201 1, defendant Compass filed an Answer asserting eight defenses including failure to state a cause of action; the purported statements by Compass and/or its employees about plaintiff were not published, are opinion, are true and are protected by a qualified privilege; plaintiff has not alleged and cannot establish that the statements were made with constitutional or common law malice; and Compass is not liable for the purported defamatory statement of Roxanne. Defendant Compass is now moving under CPLR 32 11(a)(7) to dismiss the complaint for failure to state a cause of action, asserting that the alleged defamatory statements are non-actionable Statements of opinion. Generally, on a CPLR 32 11motion to dismiss, the court must liberally construe the pleading, 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. Nonnon v. Citv of New York, 9 NY3d 825,827 (2007) (quoting Leon v. Martinez, 84 NY2d 83, 87-88 [1994]). On a CPLR 321 l(a)(7) motion to dismiss for failure to state a cause of action, the criterion is whether the proponent of the pleading has a cause of 3 [* 5] action, not whether he has stated one. Leon v. Martinez, supra at 88 (quoting Guaaenheimer v. Ginzburg, 43 NY2d 268,275 [ 19771); accord Amaro v. Gani Realty COT, 60 AD3d 491,492 (lst Dept 2009); Weiner v. Lazard Freres & Co, 214 AD2d 114, 120 (1 Dept 1998). A claim for defamation must allege a false Statement, published without privilege or authorization to a third party, constituting fault as judged by, at a minimum a negligence standard, and, it must either cause special harm or constitute defamation per se. O Neill v. New York Universitv, 97 AD3d 199,212 ( lstDept 2012) (quoting Salvatore v. Kumar,45 AD3d 560, 563 [2 dDept 20071, Iv app den 10 NY3d 703 [2008], quoting Dillon v. Citv of New York ,261 AD2d 34, 38 [ 1st Dept 19991). ( Since falsity is a sine qua nom of a libel claim and since only assertions of fact are capable of being proven false, . . . a libel action cannot be maintained unless it is premised on published assertions of fact, rather than expressions of opinion. Brian v. Richardson, 87 NY2d 46, 5 I (1995); accord Sandals Resorts International Ltd v. Google, Inc, 86 AD3d 32,38 (1 Dept 201 1). The determination of whether a statement is an assertion of actionable fact or an expression of non-actionable opinion is a question of law for the court, to be resolved on the basis of what the average person hearing or reading the communication would take it to mean., Steinhilber v. Alphonse, 68 NY2d 283,290 (1986). The court must consider the content of the communication as a whole, as well as its tone and apparent purpose. Brian v. Richardson, supra at 51; accord Mann v. Abel, 10 NY3d 271,276 [2008], cert denied 555 US 1170 [2009]). 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 4 [* 6] l and determine on that basis whether the reasonable reader would have believed that the challenged statements were conveying facts about the libel plaintiff. (quoting Immuno. AG v. Moor-Jankowski, 77 NY2d 235,254, cert den 550 US 954 [1991], citing Steinhilber v. Alphonse, supra at 293); accord Mann v. Abel, supra at 276. To distinguish fact from opinion, the Court of Appeals generally analyzes the following factors: I) 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. Brian v. Richardson, supra at 5 1 (quoting Gross v. New York Times Co., 82 NY2d 146, 153 [1993], quoting Steinhilber v. Alphonse, supra). The Court of Appeals also utilizes the important distinction between a statement of opinion that implies a basis in facts which are not disclosed to the reader or listener and 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. Gross v. New York Times - supra at 153. The former are actionable not because they convey false opinions but rather Co., because a reasonable . . . reader would infer that the [writer] knows certain facts unknown to the audience which support the opinion and are detrimental to the person toward whom the communication is directed. Id at 153-154 (quoting Steinhilber v. Alohonse, supra at 290). The latter, however, are not actionable as a proffered hypothesis that is offered after a full recitation 5 [* 7] of the facts on which it is based is readily understood by the audience as conjecture. Id at 154. Indeed, this class of statements provides a clear illustration of situations in which the full context of the communication signal[s] . . . readers or listeners that what is being read or heard is likely to be opinion, not fact. Id (quoting Steinhilber v. Alphonse, supra). Applying the foregoing principles to plaintiffs cause of action, the court finds that the email at issue qualifies as non-actionable opinion. Reading the email as a whole, in the context of the entire communication as quoted in the complaint, it is clear the ordinary reader would understand that the writer s remarks describing plaintiff as a serial suer, s c m e r , spammer, embezzler, and revenge artist, are based on eight separate articles about plaintiff which the writer found on the internet and references in the ernail. The email does not imply that it is based upon undisclosed facts; just as in Sandals Resorts International Ltd v. Gooale, Inc, supra, the remarks are followed by a hyperlink or citation to a specified Web site or on-line article about plaintiff, as the source of the information on which the remarks are based. Far from suggesting that the writer knows certain facts that his or her audience does not know, the email is supported by links to the writer s sources. Id at 45. Notably, the portion of the email quoted in the complaint, explicitly states: Here are a few supporting links. Thus, relying on First Department s decision in Sandals Resorts International Ltd v. Goode. Inc, this court concludes that since the links and Web sites disclose the facts underlying the writer s remarks, the email is accompanied by a recitation of the facts upon which it is based, and therefore qualifies a pure opinion under the Steinhilber analysis. at 43 (quoting Steinhilber v. Abhonse, supra at 289). As pure opinion, the email is not actionable as matter 6 [* 8] of law and defendant s motion to dismiss the complaint is granted. In light of this conclusion, plaintiffs cross-motion for various relief is denied as moot. Accordingly, it is ORDERED that the motion is granted and the complaint is dismissed in its entirety and the Clerk is directed to enter judgment accordingly; and it is further ORDERED that plaintiffs cross-motion is denied as moot, DATED: Octobe$(, ENTER: 2012 7

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.