Lee v Nygaard Investigations, Inc.

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Lee v Nygaard Investigations, Inc. 2019 NY Slip Op 34175(U) August 14, 2019 Supreme Court, Westchester County Docket Number: 69967/2018 Judge: Charles D. Wood Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [*FILED: 1] WESTCHESTER COUNTY CLERK 08/15/2019 04:19 PM NYSCEF DOC. NO. 65 INDEX NO. 69967/2018 RECEIVED NYSCEF: 08/15/2019 To commence commence the statutory statutory time of right (CPLR (CPLR 5513 [a]), for appeals appeals as ofright you are advised advised to serve a copy copy of of this order, with notice of entry, entry, upon all order, notice of parties. parties. SUPREME COURT COURT OF THE THE STATE STATE OF NEW YORK SUPREME NEW YORK COUNTY OF WESTCHESTER WESTCHESTER COUNTY --------------------------------------------------------------------)( --------------------------------------------------------------------X JANET LEE, JANET Plaintiff, Plaintiff, DECISION AND AND ORDER ORDER DECISION INDE)( NO. INDEX NO. 69967/2018 69967/2018 SEQUENCE NO.2 SEQUENCE NO. 2 against- - against NYGAARD INVESTIGATIONS, INVESTIGATIONS, INC.; BOB NYGAARD, NYGAARD, NYGAARD individually, BOB NYGAARD, individually, NYGAARD, Defendants. Defendants. --------------------------------------------------------------------)( --------------------------------------------------------------------X WOOD,J. WOOD,J. New York York State State Courts Courts Electronic Electronic Filing Filing ("NYSCEF") ("NYSCEF") Documents Documents Numbers New Numbers 41-64, 41-64, were were conne .tion with with defendants' motion pursuant pursuant to CPLR 3211l(a)(7), (a)(7), to dismiss of read in conne defendants' motion CPLR 321 dismiss each each of plaintiffs claims their entirety entirety for failure failure to state a clairp.; c1airp; and impose sanctions plaintiff plaintiffs claims in their and to impose sanctions on plaintiff attorney under under 8308-a, 8308-a, 22 NYCRR NYCRR 130-1.1. and her attorney Plaintiff claims claims to be a psychic, psychic, who provides provides psychic psychic and involving Plaintiff and non-psychic non-psychic services services involving Marriage Counseling, Counseling, Addiction Addiction Therapy, Therapy, Tarot Tarot Card Card Readings, Readings, Palm Palm Readings Readings and the like. Marriage Defendants are private private investigators, investigators, hired hired by a number number of of plaintiff's plaintiffs clients clients to recover their recover their Defendants L L property allegedly allegedly stolen stolen by plaintiff. plaintiff. property According to the complaint, complaint, defendants have harassed harassed plaintiff, plaintiff, seeking According defendants have seeking to destroy destroy her personal and professional professional reputation reputation and tortiously tortiously interfered interfered with with her business business opportunities opportunities by personal contacting plaintiffs plaintiff s clients, clients, and informing informing them them that that they they have have been been scammed, scarnmed, and urging urging them them contacting 1 1 of 14 [*FILED: 2] WESTCHESTER COUNTY CLERK 08/15/2019 04:19 PM NYSCEF DOC. NO. 65 INDEX NO. 69967/2018 RECEIVED NYSCEF: 08/15/2019 seek refunds refunds for psychic psychic services; services; writing writing letters letters to law enforcement to seek enforcement agencies agencies and district district attorneys urging urging them them to prosecute plaintiff for rendering rendering psychic psychic services; services; and standing attorneys prosecute plaintiff standing outside outside court when when she appears appears on cases cases wholly wholly unrelated unrelated to her profession profession as a psychic. Plaintiff claims court psychic. Plaintiff claims about 2013, 2013, she has been been targeted targeted by defendant defendant Bob Nygaard, who has defamed that since about Nygaard, who defamed her reputation and character character in order order to ruin ruin her credibility with her clients. was once known as a reputation credibility with clients. She was once known respected astrologist/certified astrologist/certified life coach/psychic coach/psychic adviser adviser in Connecticut, Connecticut, but well respected but due to defendants' behavior, behavior, she is now now considered considered a gypsy con con artist, artist, thief thief psychic, psychic, and lost her defendants' and she lost Connecticut, and a tv series series deal. office in Connecticut, Another example example of of defendant's defendant's intrusive intrusive conduct conduct according according to plaintiff plaintiff occurred when Another occurred when providing spiritual spiritual work work to a client, client, and the client client paid paid her her $9,000. $9,000. Nygaard Nygaard insinuated she was providing insinuated himself into plaintiff's plaintiffs business business relationship, relationship, and told her client client that that plaintiff plaintiff was a fraud, fraud, liar himself liar and and psychic con artist, artist, and then then the client client demanded demanded her money money back. Plaintiff Plaintiff also a psychic also gives gives other other examples of of other other clients clients being being contacted contacted by Nygaard, after speaking speaking with with him, him, those those clients examples Nygaard, and after clients plaintiff for a refund refund as well. She accuses of going going on a fishing fishing expedition expedition waged waged asked plaintiff accuses Nygaard Nygaard of threatened by him. Defendants Defendants even contacted the police police to bring her to justice, justice, and she feels threatened even contacted station of the Town Town of of Greenburgh Greenburgh several times to have have her arrested station of several times arrested for fraud. res~onse, defendants defendants charge that plaintiff plaintiff is a convicted convicted criminal criminal who who is currently currently In resoonse, charge that multiple criminal charges in Westchester Westchester and Manhattan Manhattan including including Grand Grand Larceny, Larceny, facing multiple criminal charges Larceny, Forgery, Forgery, Scheme Scheme to defraud defraud and Identity Identity Theft. Theft. Plaintiff Plaintiff explains explains that that while while she has had Larceny, previous contacts contacts with with the law, she never never has been convicted of of any crime crime related related to the previous been convicted allegations of of defendants defendants relating relating to her business business practices practices as a psychic. She brought brought this psychic. She this action action allegations within days of of her arrest arrest in connection with alleged alleged larceny larceny and fraud committed committed against against one of within connection with one of 2 2 of 14 [*FILED: 3] WESTCHESTER COUNTY CLERK 08/15/2019 04:19 PM NYSCEF DOC. NO. 65 INDEX NO. 69967/2018 RECEIVED NYSCEF: 08/15/2019 defendants' defendants' clients. clients. Defendants Defendants believe believe that that they have duties duties and obligations obligations to those those of of plaintiffs plaintiff's victims victims who who hired them, them, and a public public duty to report report criminal criminal activity activity and, if witness have hired if called, called, act as a witness against against plaint:ff plaint:ff in her multiple multiple pending pending criminal criminal proceedings, proceedings, and and seek seek to dismiss dismiss plaintiffs plaintiff's complaint complaint for failure failure to state state a cause cause of of action. action. NOW, NOW, based based upon upon the foregoing foregoing papers, papers, the motion motion is decided decided as follows: follows: It is well settled settled that dismiss [for failure that pursuant pursuant to CPLR CPLR 3211 (a)(7) (a)(7) "upon "upon a motion motion to dismiss failure cause of cause of of action] action],, the sole criterion criterion is whether whether the subject subject pleading pleading states states a cause of to state a cause action, discerned which, action, and if, from the four comers comers of of the complaint, complaint, factual factual allegations allegations are discerned which, taken taken togethet togethe~; manifest manifest any cause cause of of action action cognizable cognizable at law, then then the motion motion will will fail. The The court court must must afford afford the pleading pleading a liberal liberal construction, construction, accept accept the facts alleged alleged in the pleading pleading as true, true, only whether accord the plaintiff plaintiff the benefit benefit of of every every possible possible inference, inference, and determine determine only whether the facts accord alleged fit within within any cognizable cognizable legal theory" theory"!1 (Esposito (Esposito v Noto, AD3d 825 [2d Dept Dept as alleged Noto, 90 AD3d 2011] .3d 1180, [2d Dept 2011];; (Sokol (Sokol v. Leader, Leader, 74 A.D A.D.3d Dept 2010]); 2010]); (Bua (Bua v Purcell Purcell & lngrao, Ingrao, P.C. P.C.,, 99 NY3d 857, 857, 984 NE2d 324 AD3d , 845 [2d Dept AD3d 843 843,845 Dept 2012] 2012] lv Iv to appeal appeal denied, denied, 20 NY3d 984 NE2d 324 [2013]). [2013]). claims which However, However, this this does does not not apply apply to legal conclusions conclusions or factual factual claims which were were either either inherently inherently incredible incredible or flatly contradicted contradicted by documentary documentary evidence evidence (West (West Branch Branch Conservation Conservation Assn. Assn. v of Rockland, considers evidence County County of Rockland, 227 AD2d AD2d 547 [2d Dept Dept 1996]). Moreover, Moreover, if if the the court court considers evidence submitted court may submitted by a defendant defendant in support support of ofaa motion motion to dismiss dismiss under under CPLR CPLR 3211 (a) (7), (7), "a "a court freely consider consider affidavits affidavits submitted submitted by the plaintiff plaintiff to remedy remedy any defects defects in the complaint," complaint," and if if the court court does so, "the "the criterion criterion is whether whether the proponent proponent of of the pleading pleading has a cause cause of of action, action, not Intemal citations Ilnternal citations omitted. omitted. 1 3 3 of 14 [*FILED: 4] WESTCHESTER COUNTY CLERK 08/15/2019 04:19 PM NYSCEF DOC. NO. 65 INDEX NO. 69967/2018 RECEIVED NYSCEF: 08/15/2019 whether he has stated stated one" one" (1eon (Leon v. Martinez, Martinez, 84 NY2d NY2d 83 83,, 88 (1994]; [1994]; Uzzle Uzzle v. Nunzie Nunzie Ct. whether Homeowners Ass'n, Ass'n, Inc., 70 AD3d AD3d 928, 928, 930 [2d Dept Dept 2010]). 2010]). Thus, Thus, affidavits affidavits and other other Homeowners evidentiary evidentiary material material may also be considered considered to "establish "establish conclusively conclusively that that plaintiff plaintiff has no cause cause of action" action" (Simmons (Simmons v Edelstein, Edelstein, 32 AD3d AD3d 464, 464, 465 [2d Dept Dept 2006]). 2006]). The The court court may also of consider where a meritorious meritorious claim consider further further affidavits affidavits where claim lies within within inartful inartful pleadings pleadings (Lucia (Lucia v Goldman, 68 AD3d AD3d 1064, 1065 [2d Dept Dept 2009]). 2009]). Goldman, More succinctly, succinctly, under CPLR 321 3211l(a)(7), (a)(7), the standard standard is whether whether the pleading states a More under CPLR pleading states cause of of action, action, but if if the court court considers considers evidentiary evidentiary material, material, the criterion criterion then then becomes becomes cause "whether the proponent proponent of of the pleading pleading has a cause cause of of action" action" (Sokol (Sokol v Leader, Leader, 7744 AD3d AD3d 1180, "whether 1181-82 [2010]; [2010]; Marist Marist College College v Chazen Chazen Envtl. Serv. Servo 84 AD3d AD3d 11181 [2d Dept Dept 2011]). 2011]). Whether Whether 1181-82 plaintiff can ultimately ultimately establish establish [his or her] allegations allegations is not part of of the calculus calculus (Dee (Dee v. V. a plaintiff Rakower, 112 AD3d AD3d 204 [2d Dept Dept 2013]). 2013]). Rakower, support of of their their motion, motion, defendants defendants claim claim that that plaintiff plaintiff comes comes to this this court court with with In support defective and frivolous frivolous claims. claims. After After reading reading the parties' of its examination examination defective parties' submissions, submissions, as part part of under CPLR 3211 3211,, the court court considers considers whether whether plaintiff viable causes causes of of action action relative relative to under CPLR plaintiff stated stated viable Nygaard's s conduct conduct during during the course course of of his investigating investigating plaintiff. Private investigators investigators cannot cannot plaintiff. Private Nygaard' amuck. A private private investigator investigator such as Nygaard, Nygaard, is mandated mandated to conduct conduct investigations investigations and run amuck. render reports, reports, in good good faith and reasonable reasonable care as part part of of the continuation continuation of of a private private render investigator's license. license. In New York, pursuant pursuant to General General Business Business Law Law §70, ~70, vests vests authority authority in the New York, investigator's Department of of State State to oversee oversee the licensing licensing of of private investigators. In that that regard, regard, Nygaard Nygaard Department private investigators. attests that he is licensed licensed as a private private investigator investigator in New York, of of which which he produced produced a copy. attests New York, determine if plaintiff's plaintiffs claims claims are indeed indeed frivolous, frivolous, the court court reviews reviews the articles articles and To determine 4 4 of 14 [*FILED: 5] WESTCHESTER COUNTY CLERK 08/15/2019 04:19 PM NYSCEF DOC. NO. 65 INDEX NO. 69967/2018 RECEIVED NYSCEF: 08/15/2019 documents submitted submitted by plaintiff. plaintiff. First, First, an article article from the Greenwich Greenwich Time Time dated dated October October 31 31,, documents 2016 (NYSCEF (NYSCEF Doc No.2), another article article entitled entitled Greenwich Greenwich Psychic: Psychic: Helping Helping People People 2016 No. 2), and another know their their Spiritual Spiritual Selves, Selves, (NYSCEF (NYSCEF Doc No. No.3)3) both articles are blurry, read, but both articles blurry, hard hard to read, know appear to tout tout plaintiffs plaintiffs work work as a psychic. psychic. appear Street Journal Journal published published an article article entitled Greenwich, Where Where Money Money is no The Wall Street entitled "In Greenwich, Object" (NYSCEF (NYSCEF Doc No. No. 4)- plaintiff plaintiff is featured featured as charging charging $75 for a tarot tarot reading reading and $150 $150 Object" psychic consultation, consultation, which which plaintiff plaintiff acknowledged acknowledged is three three times times the going going rate, rate, "but, "but, I pay for psychic three times times the rent". rent". The article article notes that plaintiff plaintiff set up in town town 18 years years ago, ago, and says "she "she's' s three earned enough enough to buy her own own estate estate on Riversville Riversville Road; her main main income income comes comes from clients clients earned $2,000 to $9,000 $9,000 a month month for round the clock clock coaching coaching on issues issues ranging ranging from choosing choosing who pay $2,000 nanny to portfolio portfolio allocation allocation and timing timing a company company sale". sale". a nanny 15,2015, Greenwich Free Press Press wrote wrote an article article entitled entitled "Meet "Meet the 2015 , the Greenwich On November November 15, Greenwich Psychic: Psychic: What What makes makes Janet Janet Lee tick?" tick?" (NYSCEF (NYSCEF Doc No. No.5), revealed that Greenwich 5), which which revealed plaintiff celebrity clients clients and people people who work work on Wall Street; Street; and plaintiff stated that "if "if she plaintiff had celebrity plaintiff stated wasn't t truly gifted, gifted, which which would would not have made made it, and says that that there there are others others in her profession profession wasn' advantage of of their their gift and other other who don't don't have the fit and are simply phonies,"You simply phonies,"You who take advantage can't just charity for your social life. life. I teach teach them about about karma karma and doing doing the right right thing, thing, can't just give to a charity helping people being arrogant." arrogant." The Article Article also talked talked about about plaintiffs clients helping people in need and not being plaintiffs clients standing appointments, appointments, some paying by the month month for two or three three visits visits a week, week, and who have standing some paying some walk-ins. walk-ins. some further support support of of her complaint, complaint, she attaches attaches a Wikipedia Wikipedia article article (NYSCEF (NYSCEF Doc No.6) In further No. 6) defendant Bob Nygaard, Nygaard, which which recites recites that in August August 2018, 2018, Nygaard Nygaard appeared appeared as himself himself in on defendant 5 5 of 14 [*FILED: 6] WESTCHESTER COUNTY CLERK 08/15/2019 04:19 PM NYSCEF DOC. NO. 65 INDEX NO. 69967/2018 RECEIVED NYSCEF: 08/15/2019 episode "The "The Psychic Psychic Didn't Didn't See Him Coming" Coming" of of the CBS true-crime true-crime show show Pink Pink Collar Collar Crimes, episode Crimes, which portrays portrays his investigations investigations of of the crimes crimes committed psychic and convicted fraudster fraudster which committed by psychic and convicted Gina Marie Marie Marks. Marks. "He "He is also an outspoken critic of of the inconsistent inconsistent prosecution prosecution of of this type of of Gina outspoken critic crime across across the United United States, States, and advocates advocates for prison prison terms terms for convicted psychics, rather rather than than crime convicted psychics, merely forced forced restitution restitution to their their victims." victims." The article article highlighted highlighted that merely that Nygaard Nygaard started started advocating advocating prosecution of of psychics, psychics, when when a women women in a bar informed informed him him that that she was for prosecution was scammed scammed by a psychic (plaintiff). (plaintiff). local psychic included with with plaintiffs plaintiff s complaint complaint was a copy of letters dated Also included of letters dated October October 31, 2018 2018 (NYSCEF Doc No., No., 7), from Nygaard Pleasant Village Village Court Court justices, that Nygaard (NYSCEF Nygaard to Mt. Pleasant justices, stating stating that Nygaard believes that vmous v1.rious members members of Westchester County County DA's DA's office office that that have have prosecuted prosecuted believes of the Westchester plaintiff, have acted acted dubiously dubiously regarding regarding handling handling of of additional that were were made additional complaints complaints that made against against plaintiff, plaintiff and Nygaard that prosecutors prosecutors may withhold withhold the disclosure additional five of additional plaintiff Nygaard fears that disclosure of complaints to the court court prior prior to the court court approving plea deal in order order to cover alleged complaints approving a plea cover up for alleged past transgressions transgressions by various various member member of of the DA's DA's office. office. Nygaard accuses the DA's DA's office Nygaard accuses office of of past dragging its feet with with the case case against against plaintiff, plaintiff, causing plaintiff. dragging causing additional additional victims victims of of plaintiff. Another attachment attachment to the complaint from The York Post Anoth.er complaint was an article article from The New New York Post dated dated November 2018, (NYSCEF (NYSCEF Doc Doc No.8), reporting that that plaintiff plaintiff had been arrested third November 30, 2018, No. 8), reporting had been arrested for the third than two years-this years-this time time for allegedly allegedly bilking bilking a woman out of her life savings time in fewer than woman out of her savings by convincing the client client that that she had been been cursed cursed in a past past life as mute mute Egyptian Egyptian healer. healer. The article convincing The article referred to plaintiff plaintiff as "the "the Accused Accused serial Scarsdale Scarsdale scamster". scamster". "The "The woman woman had had sought sought out out referred Lee's services services in June June after after growing "despondent" that that she'd she'd never achieved her dream ofaa career never achieved dream of career Lee's growing "despondent" writing or filmmaking, filmmaking, according according to a statement provided to the Post Post by Bob Bob Nygaard, private in writing statement provided Nygaard, a private 6 6 of 14 [*FILED: 7] WESTCHESTER COUNTY CLERK 08/15/2019 04:19 PM NYSCEF DOC. NO. 65 INDEX NO. 69967/2018 RECEIVED NYSCEF: 08/15/2019 investigator she recruited recruited to help bring psychic to justice. Nygaard said said the statement statement also was investigator bring the psychic justice. Nygaard submitted submitted to authorities". authorities". The The article article recounts recounts that plaintiff plaintiff arrested arrested in Manhattan Manhattan in June June 2017, 2017, identity theft theft and forgery forgery raps for posting posting as another another woman woman to rent rent a luxury luxury Soho Soho paid paid on identity apartment. She later later pled pled guilty guilty in exchange exchange for three three years years' ' probation. probation. She was arrested arrested again again in apartment. June, allegedly fortune-telling June, 2018 and charged charged with with grand grand larceny larceny and scheme scheme to defraud defraud for an allegedly fortune-telling Mount Pleasant. Pleasant. She pleaded pleaded not guilty. She was also sued sued in Connecticut Connecticut last year by a scam in Mount Greenwich woman woman who said Lee conned conned her out of of $32,900 $32,900 by telling telling her that that she had found found a Greenwich terrible darkness darkness around around her during during a tarot tarot card reading reading in 2015. 2015. The The court court found found in favor of of terrible McKiver and ordered ordered Lee to pay her $30,000. $30,000. Nygaard been trying trying to get authorities authorities McKiver Nygaard says he has been arrest Lee for years. years. to arrest Another of of plaintiffs plaintiffs exhibits exhibits includes includes an article article from LA Now (NYSCEF Doc No. No.9), Now CNYSCEF 9), Another reporting Nancy Reagan's s death, death, and citing citing that an astrologer astrologer may may have have participated participated in reporting Nancy Reagan' determining President President Reagan' Reagan's s schedule. schedule. NYSCEF NYSCEF Doc. No. 10, submitted plaintiff, is an determining submitted by plaintiff, article dated August August 1, 1,2016, "Meet the Psychic Psychic who uses gift to solve solve FBI cold cold cases", cases", and does article 2016, "Meet mention plaintiff defendants. not mention plaintiff or defendants. Plaintiff also submits copy of ofaa May 29, 29,2018 (NYSCEF Do No. 11) Tweet Tweet from Bob 2018 (NYSCEF Plaintiff submits a copy Nygaard urging urging victims victims to contact contact the authorities, authorities, that included included an arrest arrest photo photo of of plaintiff. Nygaard plaintiff. Now taking into consideration above articles articles and documents, documents, plaintiffs plaintiffs causes causes of of Now taking consideration the above actions will be addressed. addressed. Her First First Cause Cause of of Action Action sounds sounds in Tortious Tortious Interference, Interference, which which claims claims actions defendants made made false and malicious malicious misrepresentations misrepresentations against against plaintiff plaintiff and that that these these that defendants reckless statements statements have have had the cumulative cumulative effect effect of destroying plaintiffs once thriving thriving psychic psychic of destroying plaintiffs once reckless business. Moreover, Moreover, defendants' defendants' conduct conduct interfered interfered with with the prospective economic advantage advantage of of business. prospective economic 7 7 of 14 [*FILED: 8] WESTCHESTER COUNTY CLERK 08/15/2019 04:19 PM NYSCEF DOC. NO. 65 INDEX NO. 69967/2018 RECEIVED NYSCEF: 08/15/2019 plaintiff plaintiff by inducing inducing prospective prospective clients clients not to engage engage plaintiff plaintiff as their their psychic psychic advisor. advisor. Some Some people view view psychics psychics as being being illegitimate, illegitimate, but many many law enforcement enforcement agencies solicit the people agencies solicit of psychics Nancy Regan assistance assistance of psychics in missing missing persons persons cases, cases, citing citing that that even even the First First Lady Lady Nancy Regan routinely routinely employed employed an astrologer astrologer to guide guide President President Reagan Reagan in decision decision making. making. Plaintiff Plaintiff continues continues that the conduct conduct of of Nygaard Nygaard is extreme extreme and outrageous, outrageous, as he is obsessed obsessed with with plaintiff; plaintiff; he has been relentless against plaintiff relentless in his desire desire to have have criminal criminal charges charges against plaintiff by the Westchester Westchester stalked plaintiff plaintiff at her Bedford County DA and Fairfield Fairfield County County DA; he has stalked Bedford Office; Office; and he has County taken office. taken at least one picture picture of of her at her office. Causes "where the interference Causes of of Action Action sounding sounding in Tortious Tortious Interference Interference is met met "where interference with with prospective business prospective business relations relations was accomplished accomplished by wrongful wrongful means means or where where the offending offending party party acted for the sole purpose purpose of party" (Law Ira H. Leibowitz of harming harming the other other party" (Law Offices Offices of ofIra Leibowitz v. Landmark Ventures, Ventures, Inc., 131 131 AD3d AD3d 583, 585 (2d [2d Dept Dept 2015]). 2015]). Even Even giving giving plaintiff plaintiff every every Landmark benefit, as the court court must must do, plaintiff plaintiff failed failed to show show that that defendants defendants interfered interfered with with her business business benefit, relations including including her former former clients, clients, as well as a contract contract with with a production production company company for a relations televison series series about about her. Nothing record shows that defendants defendants were were aware aware of of this contract contract televison Nothing in the record shows that of defendants' defendants' conduct conduct was directed directed at procuring procuring the breach breach of of this this contract. contract. The or that any of conclusory facts alleged alleged in the complaint complaint fail to establish establish that the defendants' alleged actions actions were were conclusory defendants' alleged motivated by self-interest self-interest and other considerations, and and for the sole sole purpose of harming harming motivated other economic economic considerations, purpose of plaintiff. plaintiff. Second Cause Cause of of Action Action is Unjust Unjust Enrichment, Enrichment, in that that defendant, defendant, often often unsolicited, unsolicited, The Second contacted plaintiffs plaintiffs clients, clients, and urged urged them them that that they should refund because because contacted should ask plaintiff plaintiff for a refund scammed. In order order to prevail prevail on a claim of unjust unjust enrichment, enrichment, it must must be shown shown that that the they were scammed. claim of 8 8 of 14 [*FILED: 9] WESTCHESTER COUNTY CLERK 08/15/2019 04:19 PM NYSCEF DOC. NO. 65 INDEX NO. 69967/2018 RECEIVED NYSCEF: 08/15/2019 other party was enriched, enriched, at that that party's expense, and that it is against against equity equity and good good conscience conscience other party's expense, permit the other other party retain what what is sought sought to be recovered (Old Republic Republic Nat!' to permit party to retain recovered (Old Natl. Tit. Ins. Co, Luft, 52 AD3d AD3d 491 [2d Dept Dept 2008]). 2008]). The existence existence of of a valid valid and enforceable enforceable written written contract contract v. Luft, covering covering a pa.rticular particular subject subject matter matter ordinarily ordinarily precludes precludes recovery recovery in quasi-contract quasi-contract for events events arising out of of the same same subject subject matter matter (Hamlet (Hamlet at Willow Willow Creek Creek Dev. Co., Co., LLC LLC v. Ne. Land Dev. arising Ne. Land Corp .. 64 AD3d ~, AD3d 85, 102 [2d Dept Dept 2009]). 2009]). Plaintiff has not alleged alleged facts demonstrating of the required required elements. elements. Nothing Nothing in the Plaintiff demonstrating any of record supports supports that that defendants defendants have have been enriched by receiving receiving a portion of fees that that plaintiff record been enriched portion of plaintiff purported refunded refunded to her clients/victims. clients/victims. The same cannot be said said about about plaintiff plaintiff who may have purported same cannot been unjustly unjustly enriched enriched by her clients. person is guilty guilty of fortune telling telling when," when," for a fee been clients. In fact, a person of fortune compensation which which he directly directly or indirectly indirectly solicits solicits or receives, receives, he claims claims or pretends or compensation pretends to tell fortunes, or holds holds himself himself out out as being being able, by claimed claimed or pretended pretended use of of occult occult powers, powers, to fortunes, answer questions questions or give advice advice on personal personal matters matters or to exercise, exercise, influence influence or affect affect evil spirits spirits answer curses; except except that that this section section does does not apply apply to a person person who who engages engages in the aforedescribed aforedescribed or curses; conduct as part part of of a show show or exhibition exhibition solely solely for the purpose purpose of of entertainment entertainment or amusement. amusement. conduct Fortune telling telling is a class class B misdemeanor" misdemeanor" (Penal (Penal Law Law §165.35). S 165.35). The The Second Second Department Department has Fortune commented that the services services such such as plaintiff plaintiff offers offers is an example example of of "a "a prevalent prevalent species species of of fraud commented whereby its practitioners, practitioners, professing professing occult occult powers powers of of prognostication, prognostication, annually annually bilk bilk a gullible gullible whereby public of many many millions millions of of dollars" dollars" (People (People v Ballard, Ballard, 143 AD2d AD2d 919 [2d Dept Dept 1988]). 1988]). public of Turning next next to the Third Third Cause Cause of of Action Action for Intentional Intentional Infliction Infliction of of Emotional Emotional Distress. Distress. Turning cause of of action action to recover recover damages damages for the intentional intentional infliction infliction of of emotional emotional distress, distress, To state a cause conduct alleged must be so outrageous outrageous in character character and extreme extreme in degree degree as to surpass surpass the the conduct alleged must 9 9 of 14 [*FILED: 10] WESTCHESTER COUNTY CLERK 08/15/2019 04:19 PM NYSCEF DOC. NO. 65 INDEX NO. 69967/2018 RECEIVED NYSCEF: 08/15/2019 of decency decency so "as to be regarded regarded as atrocious atrocious and intolerable intolerable in a civilized civilized society" society" limits of (Leonard v Reinhardt, Reinhardt, 20 AD3d AD3d 510, 510, 510 [2005]). [2005]). (Leonard Plaintiff claims claims that that the conduct conduct of of Nygaard extreme and outrageous, outrageous, as he has been been Plaintiff Nygaard is extreme relentless in his desire desire to have have criminal criminal charges charges filed against against plaintiff plaintiff by the DA's DA' s office, office, and that that relentless plaintiff at her Bedford Bedford office; taken at least least one picture picture of of standing standing in the he has stalked stalked plaintiff office; has taken doorway of of her office office in Bedford; Bedford; stalked stalked her at a family family wedding. wedding. It is not normal normal behavior behavior for a doorway private investigator investigator to be so obsessed obsessed in accomplishing accomplishing the arrest arrest and and conviction conviction whom whom he private believes has scammed scammed people of their their money. money. believes people of Upon review review of of the complaint, complaint, it fails to allege allege extreme extreme or outrageous outrageous conduct conduct necessary necessary Upon such a claim claim (Leonard (Leonard v Reinhardt, Reinhardt. 20 AD3d AD3d 510 (2005) (2005). . Also, Also, plaintiffs plaintiffs conclusory to support support such conclusory assertions are insufficient insufficient to set forth a cause cause of of action action sounding sounding in the intentional intentional infliction infliction of of assertions emotional distress distress (Klein (Klein v Metro. Metro. Child Child Servs., Servs., Inc., 100 AD3d AD3d 708, 708, 711 [2d Dept Dept 2012]). 2012]). emotional Even taking taking plaintiffs plaintiffs allegations allegations as true, she has alleged alleged the obvious, obvious, that that a licensed licensed Even private investigator investigator was fulfilling fulfilling his lawful lawful duties duties to his clients, clients, the victims victims of of plaintiffs plaintiff s alleged alleged private crimes. Making Making statements statements to the police police causing causing arrests arrests and conviction conviction is not extreme extreme and crimes. outrageous behavior. behavior. Regarding Regarding the derivative derivative loss of of consortium consortium claim, claim, plaintiff plaintiff has failed to outrageous making out such claim. allege facts making such a claim. Fourth Cause Cause of of Action Action is for Slander Defamation. The The elements elements of of a cause cause of of The Fourth Slander and Defamation. action for defamation defemation are (a) a false statement statement that tends tends to expose expose a person person to public contempt, action public contempt, hatred, ridicule, ridicule, aversion, aversion, or disgrace, disgrace, (b) published without privilege privilege or authorization authorization to a third third hatred, published without judged by, at a minimum, party, (c) amounting amounting to fault fault as judged minimum, a negligence negligence standard, standard, and (d) either either causing special harm or constituting constituting defamation defamation per (Greenberg v Spitzer, Spitzer, 155 AD3d AD3d 27, 27, 41 causing special harm per se (Greenberg 10 10 of 14 [*FILED: 11] WESTCHESTER COUNTY CLERK 08/15/2019 04:19 PM NYSCEF DOC. NO. 65 INDEX NO. 69967/2018 RECEIVED NYSCEF: 08/15/2019 [2d Dept 2017). of defamation, 2017). Slander Slander is a type of defamation, that term term is defined defined as the making making of of a false statement which which tends tends to "expose "expose the plaintiff contempt, ridicule, ridicule, aversion aversion or disgrace, disgrace, statement plaintiff to public public contempt, or induce persons, and and to deprive induce an evil opinion opinion of of him in the minds minds ofright-thinking of right-thinking persons, deprive him him of of friendly intercourse intercourse in society"' society'" (Foster (Foster v Churchill, Churchill, 87 NY2d 744, 751 [1996]). [1996]). "A their friendly NY2d 744, "A slanderous statement is published therefore actionable actionable when when it is heard heard by some third party" party" slanderous statement published and therefore some third (Rabushka v Marks, Marks, 256 AD2d AD2d 562, 562, 563 [2d Dept Dept 1998]). 1998]). Words Words constitute constitute "slander "slander per if (Rabushka per se" se " if impute the commission commission of of a serious crime, a loathsome loathsome disease, disease, unchaste unchaste behavior they impute serious crime, behavior in a woman, or if if they they affect affect the pt"aintiffin trade, occupation occupation or profession (Liberman v Gelstein, Gelstein, woman, plaintiff in his trade, profession (Liberman [1992]; Warlock Warlock Enterprises Enterprises v City Center Center Associates, Associates, 204 AD2d AD2d 438 [2d Dept. 80 NY2d NY2d 429 [1992]; 1994]). "Truth is an absolute absolute defense defense to an action action based based on defamation" defamation" (Greenberg (Greenberg v Spitzer, Spitzer, 1994 ]). "Truth AD3d 27, 27, 41 [2d Dept. Dept. 2017]). 2017]). 155 AD3d Here, defendants defendants argue argue that that plaintiff claims failed failed to plea plea particulars, particulars, insofar insofar plaintiffss defamation defamation claims Here, as the complaint complaint speaks speaks in vague vague and conclusory conclusory allegations allegations claiming claiming that that defendants defendants made made purportedly false statements statements but failed failed to: to: identify identify particular particular statements statements or words, words, alleged alleged facts purportedly setting forth the circumstances circumstances (time, (time, place, place, manner). manner). In addition, addition, there there was was nothing nothing purportedly purportedly setting of defendants defendants which which were were actually actually false false.. said by any of opr~)sition, plaintiffs counsel, counsel, lists the particulars particulars of of offending offending defamatory defamatory statements statements Jsition, plaintiffs In oprr by defendants: defendants: -a psychic psychic con con artist, artist, a liar -Accused serial serial Scarsdale Scarsdale scamster seamster Janet -Accused Janet Lee America's psychic psychic crime fighter "fighting "fighting to bring heartless self-Bob Nygaard Nygaard is America's crime fighter bring heartless proclaimed vulnerable to justice; proclaimed psychics psychics who prey upon upon the vulnerable justice; -Have info, about about former former Greenwich Greenwich self-proclaimed self-proclaimed psychic Janet Lee? Lee? Call me at 561-Have psychic Janet 596-3443. 596-3443. -Self-proclaimed fortuneteller and convicted convicted felon Janet Janet Lee has been been operating operating at -Self-proclaimed fortuneteller 11 11 11 of 14 [*FILED: 12] WESTCHESTER COUNTY CLERK 08/15/2019 04:19 PM NYSCEF DOC. NO. 65 INDEX NO. 69967/2018 RECEIVED NYSCEF: 08/15/2019 "Bedford Psychic" Psychic" while while on probation. Having any information information concerning concerning her? her? Give me "Bedford probation. Having a call at 561-596-3443 561-596-3443 -The idols speak speak deceitfully, deceitfully, diviners diviners see visions visions that lie; they they tell dreams dreams that that are false, false comfort in vain. Therefore Therefore the people people wander wander like sheep sheep oppressed oppressed for lack of ~f a they give comfort shepher." shepher." net turn tum to mediums mediums or necromancers, necromancers, do not seek seek them them out, out, and make make yourself yourself -Do net unclean by them-God them-God Channeling Channeling unclean Leviticus Leviticus 19:31 tum to mediums mediums or seek seek out spirits, spirits, for you will be defiled defiled by them. them. I am the -"Do not turn your God Leviticus Leviticus 20:6. 20:6. LORD your against the person person who turns turns to mediums mediums and spirits spirits to prostitute prostitute -I will set my face against himself by following following them, them, and I will cut him off off from his people people himself Witch of of Endor Endor (Niko (Nikolay lay Ge) Witch -Beware of of false prophets, prophets, which which come come to you in sheeps sheeps clothing clothing but but inwardly inwardly they are -Beware ravening wolves wolves (Matthew (Matthew 7:15) 7:15) Why we fall for IL.Every It..Every Time. Time. The The Confidence Confidence ravening Game". Game". Pursuant to CPLR CPLR 3016 3016 (a), (a), in an action action for slander slander or libel, libel, "the "the particular particular words words Pursuant complained of of shall be set forth in the complaint, complaint, but their their application application to the plaintiff plaintiff may be complained stated generally." generally." Interpreting Interpreting such such statute, statute, the courts courts require require both both "that "that the defamatory defamatory words words be stated haec verba" verba" (Conley (Conley v Gravitt, Gravitt, 133 AD2d AD2d 966, 966, 968), 968), and that that the time, time, place place and set forth in haec manner, as well as the person person or persons whom such such publication publication was was made, made, be set forth in the manner, persons to whom complaint. H(:· H(:e,e , despite despite plaintiffs now coming coming forward forward with with specific specific quotes quotes (most (most of of which which do complaint. plaintiffs now not mention mention the plaintiff plaintiff by name), name), the cause cause of of action action alleging alleging defamation defamation failed failed to comply comply with with pleading requirements requirements of ofCPLR 30l6(a) does not set forth any alleged alleged defamatory defamatory statements statements the pleading CPLR 3016(a) required particularity particularity (Lemieux (Lemieux v Fox, 135 AD3d AD3d 715 715,, 716, 716, [2d Dept Dept 2016]). 2016]). with the required event, defendants defendants also demonstrated, demonstrated, prima prima facie, facie, that that the allegedly allegedly defamatory defamatory In any event, statements enjoyed enjoyed a qualified qualified privilege. privilege. Protection Protection from defamation defamation is afforded afforded where person statements where the person ,., making the statements statements does does so fairly "in "in the discharge discharge of of some some public public or private duty, legal or making private duty, ~J moral, or in the conduct conduct of of his [[or affairs, in a matter matter where where his [[or interest is or her] own affairs, or her] interest moral, 12 12 of 14 [*FILED: 13] WESTCHESTER COUNTY CLERK 08/15/2019 04:19 PM NYSCEF DOC. NO. 65 INDEX NO. 69967/2018 RECEIVED NYSCEF: 08/15/2019 concerned" (Toker (Toker v Pollak, Pollak, 44 NY2d 211,, 218 [1978]). [1978]). concerned" NY2d 211 Accordingly, under under the facts of case, any alleged alleged defamatory defamatory statements statements the defendants defendants Accordingly, of this case, made to prosecutors prosecutors and judges privileged, and thus, thus, non-actionable non-actionable (Zapata (Zapata v. may have made judges were privileged, Tufenkjian, Tufenkiian, 123 AD3d AD3d 814, 816 [2d Dept Dept 2014]). 2014]). Defendants Defendants merely merely furnished furnished information information to government officials, officials, who were were then then free to exercise exercise their their own own judgment whether and how how to government judgment as to whether defendants' alleged alleged conduct conduct did not rise to the level of of "undue "undue zeal" zeal" (Zapata (Zapata v act, and the defendants' Tufenkjian, 123 AD3d AD3d 814, 814, 816 [2014 [2014]). substantially accurate accurate report report of of an official, official, Tufenkjian, ]). A fair and substantially judicial, legislative proceeding proceeding cannot cannot be the basis defamation action action (Sassower (Sassower v New New judicial, or legislative basis for a defamation Times Co., 48 AD3d AD3d 440, 440, 441 [2d Dept Dept 2008]). 2008]). In addition, addition, expressions expressions of of an opinion opinion York Times "false or not, not, libelous libelous or not, not, are constitutionally constitutionally protected subject of of private private "false protected and may not be the subject damage actions" actions" (Sassower (Sassower v New York Times Times Co., 48 AD3d AD3d 440, 440, 442 [2d Dept Dept 2008]). 2008]). damage New York order for the offending offending words words to qualify qualify for defamation defamation they they must must come within the In order come within categories of of an actionable actionable communication communication (Davis (Davis v Boeheim, Boeheim, 24 NY3d NY3d 262,268 262, 268 [2014]). [2014]). On a categories motion to dismiss, dismiss, the court court considers considers whether whether any reading reading of of the complaint complaint supports supports the motion defamation claim. claim. Thus, Thus, although although "[i]t "[i]t may well be that [the challenged challenged statements] statements] are subject subject to defamation defendants' interpretation interpretation ... the motion dismiss must must be denied denied if if the communication communication at issue, issue, defendants' motion to dismiss taking the words words in their their ordinary ordinary meaning meaning and in context, context, is also susceptible susceptible to a defamatory defamatory taking connotation" (Davis (Davis v Boeheim, Boeheim, 24 NY3d NY3d at 272 [2014]). [2014]). Here, Here, the accusations accusations of of defamation defamation are connotation" sufficiently specific, specific, and the alleged alleged offending offending words words are not actionable, actionable, many many of of the not sufficiently statements clearly clearly express express opinions, opinions, or talk about about psychics psychics in general. general. Certainly, Certainly, the bible bible quotes quotes statements well. The The court court finds that that plaintiffs plaintiffs complaint complaint fails to meet meet the minimum minimum are not actionable actionable as well. pleading requirement requirement and plaintiff plaintiff has no cause cause of of action action against against defendants defendants to recover recover damages damages pleading 13 13 13 of 14 [*FILED: 14] WESTCHESTER COUNTY CLERK 08/15/2019 04:19 PM NYSCEF DOC. NO. 65 INDEX NO. 69967/2018 RECEIVED NYSCEF: 08/15/2019 for defamation. defamation. In light of of the foregoing, foregoing, accepting accepting the allegations allegations in the complaint complaint as true, true, affording affording the plaintiff plaintiff the benefit benefit of of every every favorable favorable inference, inference, and considering considering the evidentiary evidentiary material material submitted dismisses the complaint. submitted by the parties, parties, the court court dismisses complaint. Lastly, Lastly, upon upon due consideration, consideration, the court court finds that defendants defendants have have not sufficiently sufficiently demonstrated demonstrated entitlement entitlement to sanctions sanctions in the form of of legal fees or court court costs costs for frivolous frivolous conduct conduct under .1((c). c). There under 22NYCRR 22NYCRR 130-1 130-1.1 There is no basis for the imposition imposition of of a sanction sanction against against the 2005]). plaintiffs plaintiffs (Leonard (Leonard v Reinhardt, Reinhardt, 20 AD3d AD3d 510, 510, 511 [2d Dept Dept 2005]). All matters specifically addressed addressed are herewith matters not specifically herewith denied. denied. constitutes the decision decision and order order of of the court. court. This constitutes NOW, based NOW, based on the stated stated reasons, reasons, it is hereby hereby ORDERED, ORDERED, that that defendants' defendants' motion motion to dismiss dismiss the complaint complaint is granted. granted. The Clerk Clerk mark mark his records records accordingly. accordingly. August 14, 14,2019 Dated: August 2019 Whit.! New York Whil~ Plains, Plains, New York To: All Parties NYSCEF Parties by NYSCEF '. 14 14 of 14

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