Wang v Wai Kam Wong
Annotate this CaseDecided on November 29, 2014
Supreme Court, Queens County
Henry Yu Qing Wang, Plaintiff,
against
Wai Kam Wong, Defendant.
5593/2014
Robert J. McDonald, J.
The following papers numbered 1 to 12 were read on this order to show cause brought by the defendant WAI KAM WONG for an order dismissing the plaintiff's complaint pursuant to CPLR 3211(a)(7) and 3016(a) for failure to state a cause of action:
Papers
Numbered
Notice of Motion-Affirmation-Exhibits..................1 - 5
Affirmation in Opposition-Affidavits-Exhibit...........6 - 9
Reply Affirmation.....................................10 - 12
In this action for damages due to defamation, plaintiff, Henry Yu Qing Wang, states that he is the President of Zhiqing Social Day Care, Inc. According to the complaint, the closely held corporation was organized in the State of New York in January 2013 for the purpose of operating as a senior day care center and is governed and administered by its Board of Directors. Plaintiff asserts that he provided funds to the Company and purchased a majority and controlling interest in the Company. The defendant, Wai Kam Wong also purchased shares in the Company. The Company opened for business in September 2013 at [*2]135-25 Northern Boulevard, Flushing, New York. The plaintiff states that after the opening, multiple disputes arose between plaintiff in his role of President of the Day Care Center and the defendant, the Treasurer and Secretary of the Company, over business issues such as hiring and other policy matters. As a result of the disagreements and because he learned that the defendant had been disparaging him and accusing him of improper behavior, plaintiff, as President and majority shareholder, removed the defendant on December 15, 2013 from her position as a member of the Board of Directors and from her position as Secretary and Treasurer.
Plaintiff states that two days later, on December 17, 2013, defendant held a press conference with reporters from various mandarin language newspapers which serve the Chinese-American community in Flushing, New York. At the press conference the defendant allegedly stated that the plaintiff misrepresented the amount of money he invested in the Day Care Center, that he had not invested any of his own money but only other people's money, and that he failed to report adequate information to the Board of Directors. On December 18, 2013, various articles appeared in mandarin language papers regarding "Disputes Among Shareholders at the Adult Center." Plaintiff states that the newspapers published the inaccurate and untruthful accusations that were made by the defendant. He states that following the publication of the articles he noticed substantial numbers of cancellations by regular customers which resulted in a substantial loss of ongoing business as well as potential investors who decided not to invest. On February 8, 2014, at a meeting of the Board of Directors, the defendant was removed from the Board and from her role as Treasurer and Secretary. Plaintiff asserts that thereafter, on March 28, 2014, the defendant displayed posters in front of the Main Street Branch of the public library and on the front steps of Queens Criminal Court containing false accusations against the plaintiff and accused him of cheating the Association out of money. On March 29, 2014, certain articles appeared in the local newspapers reporting on the defendant's claims that the plaintiff was illegally collecting monies.
On April 9, 2014, the plaintiff commenced an action against the defendant seeking a permanent injunction and monetary and punitive damages for defamation. On April 30, 2014 the defendant served a verified answer with affirmative defenses and counterclaims for breach of fiduciary duty, fraudulent inducement, tortious interference with business relations, and common law fraud. Plaintiff served a reply to the counterclaims on June 3, 2014.
In the instant motion, the defendant moves to dismiss the six separate causes of action for defamation on the grounds that the complaint fails to set forth the particular defamatory words claimed to have been uttered by the defendant as required by CPLR 3016(a) (citing Epifani v Johnson, 65 AD3d 224 [2d Dept. 2009]). Specifically, counsel asserts that the allegations in the six causes of action for defamation fail to identify any specific statement or particular words and only provide broad allegations of defamation. Counsel asserts that because the causes of action for defamation are not pled with particularity that the complaint fails to state a cause of action. In opposition, the plaintiff claims that the complaint is sufficient and is pled with particularity.
Upon review and consideration of the defendant's motion the plaintiff's affirmation in opposition and defendant's reply thereto, this Court finds as follows:
In deciding a motion to dismiss a complaint pursuant to CPLR 3211(a)(7) for failure to state a cause of action, a court must accept the facts alleged in the complaint as true and accord the plaintiff the benefit of every possible favorable inference, and determine only whether the factual allegations fit within any cognizable legal theory (see Leon v Martinez, 84 NY2d 83 [1994]).
CPLR 3016(a) requires that "in an action for libel or slander, the particular words complained of shall be set forth in the complaint, but their application to the plaintiff may be stated generally." In this regard it has been held that a claim for defamation must contain the "particular words complained of" and "provide the time, place and manner of the purported defamatory statement." (Grynberg v Alexander's Inc., 133 AD2d 667 [2d Dept 1987]). Paraphrasing and other descriptions or summaries of the alleged defamatory words, without stating the words themselves, have been held insufficient to satisfy the particularity requirement of CPLR 3016 (a)(see e.g. Gardner, supra [any qualification in the pleading thereof by use of the words "to the effect", "substantially", or words of similar import generally renders the complaint defective]; also see Romanello v Intesa Sanpaolo S.p.A., 97 AD3d 449 [1st Dept 2012] [plaintiff's allegations of "statements to the effect that" and "or other words synonymous therewith" were not sufficiently specific]).
Accordingly, after reviewing the allegations contained in the complaint this court finds that the first cause of action which alleges that on December 15, 2013 the defendant made disparaging and defamatory remarks about plaintiff and also about [*3]his business, Zhiqing Social Day Care, regarding the management of the company and also of misrepresenting the amount of his own money that the plaintiff had invested in the company must be dismissed. The allegations of statements concerning "improper behavior by the plaintiff" contained in this cause of action are set forth as a summary and the allegations are not pled with sufficient particularity.
The second cause of action states that the defendant held a press conference on December 17, 2013 at which the defendant is alleged to have made defamatory statements against the plaintiff. The complaint alleges that defendant made defamatory statements to members of the press who wrote for various mandarin language newspapers. The statements allegedly made to the reporters including defendant's statement that the defendant committed acts of financial wrongdoing are pled with sufficient particularity, and as such the motion to dismiss Count two is denied.
The third cause of action concerns an article which appeared in a Chinese language newspaper on December 18, 2013 reporting on the press conference which took place the day before. The articles do not attribute any of the statements made at the press conference to the defendant stating that the allegations were made by a dozen shareholders. Accordingly, as there are no statements attributed to the defendant in the newspaper article referred to in the third cause of action, the third cause of action must be dismissed.
The fourth cause of action states that the defendant made false and defamatory statements during the months of January and February 2014 including repeated and numerous instances where defendant made disparaging and untrue claims about plaintiff in his role as President of Zhiqing Social Day Care Inc. As the allegations contained in the fourth cause of action are not pleaded with particularity and do not contain any of the particular words complained of this cause of action must be dismissed
The fifth cause of action concerns an incident which took place on March 28, 2012 in which the defendant displayed posters which contained statements accusing the plaintiff of cheating a member of a nonprofit association out of money and of registering a company wholly owned by the plaintiff under the guise of plaintiff registered corporation, and of illegal fundraising and labor law violations. The sixth cause of action concerns a newspaper article published on March 29, 2014 in which the newspaper identified the defendant as having stated that the [*4]plaintiff misused funds meant for the Adult Day Care Center to invest in his own company. This Court finds that the allegations contained in causes of action five and six are pled with sufficient particularity and as such the motion to dismiss causes of action five and six is denied.
Accordingly for all of the above stated reasons this court finds that the motion to dismiss the complaint for failure to state a cause of action is granted only with respect to counts one, three, and four. However, the motion is denied with respect to counts two, five, and six.
Dated: November 29, 2014
Long Island City, NY
______________________________
ROBERT J. MCDONALD
J.S.C.
OCA e-submission: no Judge E-Mail
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