Buch v Teman

[*1] Buch v Teman 2019 NY Slip Op 51225(U) Decided on May 13, 2019 Supreme Court, New York County Perry, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 13, 2019
Supreme Court, New York County

Dr. Sandip Buch, Plaintiff,

against

Ari Teman, Defendant.



157336/2018



The Engel Law Group, PLLC (Adam E. Engel of counsel), for plaintiff.

Ari Teman, defendant pro se.
W. Franc Perry, J.

The following e-filed documents, listed by NYSCEF document number (Motion 002) 65, 67, 70 were read on this motion to/for DISMISSAL

The following e-filed documents, listed by NYSCEF document number (Motion 003) 73, 74, 77 were read on this motion to/for DISMISS

The following e-filed documents, listed by NYSCEF document number (Motion 005) 89, 90, 91, 95, 96, 97, 99 were read on this motion to/for MODIFY ORDER/JUDGMENT

Motion sequence numbers 002, 003, and 005 are consolidated for disposition.

Plaintiff Dr. Sandip Buch ("Plaintiff") commenced this action on August 6, 2018, by filing a summons and complaint (the "Complaint") containing a single cause of action for defamation per se against defendant Ari Teman ("Defendant") based on Defendant's alleged publication of a defamatory website regarding Plaintiff.

In motion sequence number 002, Defendant moves for an order, pursuant to CPLR 3211(a)(1), (2), (4), (10), and (11), dismissing the Complaint on the following grounds: (1) a defense based on documentary evidence; (2) improper venue; (3) a prior action pending; (4) failure to join a necessary party; and (5) qualified immunity under the New York Not-For-Profit Corporation Law. Plaintiff opposes the motion.

In motion sequence number 003, Plaintiff moves for an order, pursuant to CPLR 3211(a), dismissing the first (defamation per se), second (tortious interference with a business), third (intentional infliction of emotional distress), fourth (breach of contract), fifth (malicious prosecution), sixth (abuse of process), seventh (fraud), and eighth (trade secret theft) counterclaim asserted against Plaintiff in Defendant's Answer With Counterclaims, filed [*2]November 9, 2018 (the "Answer").[FN1] Defendant opposes the motion.

In motion sequence number 005, Plaintiff seeks an order: (1) vacating or modifying this court's decision and order, dated November 30, 2018, which denied Plaintiff's motion for a preliminary injunction in motion sequence number 001, and scheduling a hearing on the motion; (2) directing that discovery shall proceed on an expedited basis; and (3) compelling Defendant to produce documents in response to Plaintiff First Request for Documents and Things, dated November 21, 2018. Defendant opposes the motion.

BACKGROUND

Plaintiff Sandip Buch is a licensed MD practicing medicine in New York, and a comedian. Defendant Ari Teman is a former patient of Plaintiff, a rival comedian, and the alleged publisher of certain potentially defamatory statements regarding Plaintiff.

According to the Complaint, Defendant engaged in an ongoing pattern of harassing and threatening behavior towards Plaintiff including, inter alia, sending defamatory messages regarding Plaintiff to other users on Facebook, threatening comedy club owners in an effort to get Plaintiff blackballed, and stalking and filming Plaintiff during comedy performances. Plaintiff alleges that, sometime in 2018, Defendant's harassment of Plaintiff escalated when Defendant purchased, inter alia, the web domain www.sandipbuch.com (the "Domain"). Defendant then used the Domain to host a series of derogatory statements regarding Plaintiff, which prompted Plaintiff to commence the instant action against Defendant on August 6, 2018.

The derogatory content published at the Domain included, inter alia, statements claiming that: (1) Plaintiff, as a member of PATH Medical Group, was sued for fraud by over 20 patients; (2) Plaintiff, individually, and as a member of PATH Medical Group, was sued for fraud and medical malpractice by multiple patients; (3) Plaintiff was under review by the New York State Medical Board; and (4) Plaintiff "makes a living preying on vulnerable people under the guise of being a doctor who cares, making them sicker so he can extract more of their money." Plaintiff alleges that Defendant maliciously published these statements, despite personal knowledge of their falsity, causing untold damage to Plaintiff's professional and personal reputation, and that Defendant's statements constitute defamation per se.

On or about August 12, 2018, upon learning that the New York Post had published an article regarding this lawsuit against Defendant, Plaintiff drafted a Facebook post (the "Facebook Post") addressing his allegations in the Complaint, the alleged harassment by the Defendant that led Plaintiff to commence the action, and refuting the derogatory statements published at the Domain (see NYSCEF Doc. No. 15). Plaintiff's Facebook Post, which Defendant alleges contains defamatory statements that Defendant harassed Plaintiff, and others, is the basis for Defendant's first counterclaim for defamation per se, and other counterclaims.

A. Motion Sequence Number 001.

On September 14, 2018, Plaintiff filed an Order to Show Cause seeking a preliminary injunction directing, inter alia, that Defendant remove all defamatory statements regarding [*3]Plaintiff from the web, including all content then available at www.sandipbuch.com, www.sandipsen.info, and http://sandipsen.webflow.io/sandip-buch. On October 4, 2018, Plaintiff appeared on the Order to Show Cause and requested a TRO. In opposition, Defendant argued he did not have ownership or control over the Domain and, thus, a TRO was inappropriate. The court determined that Plaintiff had failed to meet his burden for a TRO and that certain discovery was required before the court could hear and rule on Plaintiff's motion for a preliminary injunction. Accordingly, the court entered an interim order denying the request for a TRO only (see Hearing Transcript 10/4/18, p.3, ln.07-09, p.13, ln.18-19), scheduling a preliminary conference for November 27, 2018, and extending Plaintiff's time to respond to Defendant's counterclaims to November 9, 2018 (NYSCEF Doc. No. 63). To be clear, and as stated on the record, the court's interim October 4, 2018 order denied only Plaintiff's application for a TRO and held in abeyance Plaintiff's motion for a preliminary injunction to permit discovery to proceed so the parties could schedule a future hearing on Plaintiff's motion for a preliminary injunction (see Hearing Transcript 10/4/18, p.15, ln.11-19).

On November 9, 2018, Defendant filed an amended Answer containing additional factual allegations, affirmative defenses, and ten counterclaims (eight against the Plaintiff). Plaintiff's Facebook Post, which Defendant alleges is defamatory, is the principle support for many of Defendant's counterclaims. In sum, Defendant argues that Plaintiff exploited the information he obtained as Defendant's psychiatrist to publish knowingly false and defamatory statements regarding Defendant (in the Facebook Post and in court filings) that Plaintiff knew would be particularly harmful to Defendant's professional reputation and mental well-being.

B. Motion Sequence Number 002.

Also on November 9, 2018, Defendant filed a motion to dismiss Plaintiff's sole cause of action in the Complaint for defamation per se. Defendant argues that dismissal is warranted because: (1) documentary evidence proves the defamatory statements alleged in the Complaint are true; (2) this court lacks jurisdiction over Defendant because he is a resident of Florida; (3) this action is duplicative of another action between the parties, entitled Ari Teman v. Eric Braverman, M.D., Richard Smayda, D.O., Sandip Buch, M.D., et al., which is currently pending before the Supreme Court of the State of New York, in New York County, under Index No. 805410/2014; (4) Plaintiff failed to join a necessary party (the current owner of the Domain); and (5) Defendant, as an officer of JCorps International Inc., a volunteer network in the USA, Canada and Israel, is afforded qualified immunity from this litigation under the Not-For-Profit Corporation Law. Plaintiff opposes the motion.

On November 27, 2018, the parties appeared for a preliminary conference in accordance with this court's interim order on October 4, 2018. At the conference, the court participated in a long and detailed discussion with the parties regarding, inter alia, the status of the case, whether discovery should be stayed as a result of Defendant's motion to dismiss, and whether Defendant was required to submit to a deposition on December 14, 2018. After giving the parties a full and fair opportunity to be heard, the court expressly directed (as reflected in the Preliminary Conference Order [NYSCEF Doc. No. 71]), that the parties proceed with discovery, including Defendant's deposition, and continue gathering the evidence regarding Defendant's ownership of the Domain so the court could hear and rule on Plaintiff's motion for a preliminary injunction. While the court suggested, for purposes of economy and convenience, that the parties attempt to coordinate for Defendant's deposition to be conducted remotely, it did not issue any order limiting Plaintiff's ability to require Defendant to appear for his deposition in person, if the [*4]parties were unable to do so. In the absence of such an agreement, Defendant's deposition was to take place as noticed (see NYSCEF Doc. No. 71, ¶ 5), at the offices of The Engel Law Group, PLLC, 280 Madison Avenue, Suite 705, New York, NY 10016 at 11:00 a.m. on December 14, 2018 (see NYSCEF Doc. No. 68).

Rather than commence good faith negotiations with Plaintiff regarding discovery, Defendant continued his efforts to stonewall Plaintiff. First, on December 6, 2018, Defendant emailed Plaintiff stating that he intended to respond to every question at his deposition with the phrase "I'm not going to answer questions without an attorney which I have not been able to retain" and suggesting that the parties just skip the deposition instead of wasting their time and money (NYSCEF Doc. No. 90, p.28). When Plaintiff declined, Defendant sent an email to Plaintiff that misrepresented the court's instructions at the preliminary conference and demanded that Plaintiff agree to conduct Defendant's deposition via Skype (id. at p.52-53 [email to Plaintiff's counsel on 12/6/18 stating "I will be available by Skype for deposition on Dec 14th 10 am" as "per the judge's order."]). In addition, Defendant unconditionally refused to produce any documents in response to Plaintiff's First Request For Documents And Things (id. at p.30), refused to attend in-person for future dates (see NYSCEF Doc. No. 76), and, ultimately, filed a federal lawsuit in the United States District Court for the Southern District of Florida against this court, the State of New York, Plaintiff, and Plaintiff's attorney, seeking a laundry list of injunctive relief, including a stay of discovery pending this court's decision on Defendant's motion to dismiss (see NYSCEF Doc. No. 83).

C. Motion Sequence Number 003.

While the parties were exchanging emails and letters regarding discovery, on December 10, 2018, Plaintiff moved for an order, pursuant to CPLR 3211(a)(7), dismissing all of the counterclaims asserted against Plaintiff in Defendant's Answer for failure to state a cause of action. Defendant opposes the motion.

D. Motion Sequence Number 005.

On February 6, 2019, Plaintiff moved by Order to Show Cause for an order: (1) vacating this court's decision and order, entered November 30, 2018, which denied Plaintiff's motion for a preliminary injunction; (2) compelling Defendant to produce documents in response to Plaintiff's November 21, 2018 First Request for Documents and Things (the "Document Requests"); and (3) ordering Defendant to submit to a deposition within 14 days of Defendant's production of documents in response to the Document Requests. Defendant opposes the motion.

DISCUSSION

In sum, the applications before the court include: (1) Defendant's motion to dismiss the Complaint; (2) Plaintiff's motion to dismiss Defendant's counterclaims; (3) Plaintiff's motion to vacate this court's decision and order denying Plaintiff's motion for a preliminary injunction; and (4) Plaintiff's motion to compel discovery and for an expedited discovery schedule.

I. MOTION TO DISMISS COMPLAINT.

Defendant seeks dismissal of the Complaint and Plaintiff's defamation per se claim on the following grounds: (1) a defense based on documentary evidence; (2) improper venue and lack of jurisdiction; (3) another pending action; (4) failure to join a necessary party; and (5) qualified immunity under the not-for-profit corporation law.

A. Documentary Evidence.

Dismissal pursuant to CPLR 3211 (a) (1) is warranted only if the documentary evidence submitted "utterly refutes plaintiff's factual allegations" (Goshen v Mutual Life Ins. Co. of NY, [*5]98 NY2d 314, 326 [2002]; see also Greenapple v Capital One, N.A., 92 AD3d 548, 550 [1st Dept 2012]), and "conclusively establishes a defense to the asserted claims as a matter of law" (Weil, Gotshal & Manges, LLP, 10 AD3d at 271 [internal quotation marks omitted]). To be considered "documentary," evidence must be unambiguous and of undisputed authenticity (Fontanetta v Doe, 73 AD3d 78, 86 [2d Dept 2010], citing Siegel, Practice Commentaries, McKinney's Cons. Laws of NY, Book 7B, CPLR C3211:10, at 21—22). If the documentary evidence disproves an essential allegation of the complaint, dismissal pursuant to CPLR 3211 (a) (1) is warranted even if the allegations, standing alone, could withstand a motion to dismiss for failure to state a cause of action (see McGuire v Sterling Doubleday Enters., L.P., 19 AD3d 660, 661 [2d Dept 2005]).

Here, the only evidence offered by Defendant to refute Plaintiff's allegations in the Complaint is Plaintiff's admission in his affidavit that another patient has called him a "quack" and a "fraud." However, the statements of non-parties repeated in an affidavit are not the type of undisputed evidence that can be considered on a motion to dismiss under CPLR 3211(a)(1) (Fontanetta, 73 AD3d at 86 [affidavits and deposition testimony are not "documentary evidence" within the intendment of a CPLR 3211(a)(1) motion to dismiss]). Moreover, these purported admissions by Plaintiff do not conclusively establish the defense of truth to Plaintiff's claim for defamation per se. Accordingly, dismissal on the basis of documentary evidence is unwarranted.

B. Improper Venue and Lack of Jurisdiction.

Venue, as codified in CPLR 503(a), states that "except where otherwise prescribed by law, the place of trial shall be in the county in which one of the parties resided when it was commenced; the county in which a substantial part of the events or omissions giving rise to the claim occurred; or, if none of the parties then resided in the state, in any county designated by the plaintiff." (Hernandez v Flores, 58 Misc 3d 1208(A) [Sup Ct 2018], quoting CPLR 503[a]).

Defendant argues that the Complaint, which was filed in New York County, must be dismissed because Defendant is now a resident of Florida. However, it is undisputed that Plaintiff lives and works in New York County. In addition, the content of the parties' alleged defamatory statements concern the provision of medical services and performances at comedy clubs in New York. Accordingly, venue in New York County is proper. Regardless, Defendant waived the defense of lack of personal jurisdiction by asserting multiple unrelated counterclaims (for example, trade secret theft) in his Answer and taking affirmative advantage of this court's jurisdiction (see Textile Technology Exchange, Inc. v. Davis, 81 NY2d 56, 58-59 [1993]).

C. Another Action Pending.

Pursuant to CPLR 3211(a)(4), "[a] party may move for judgment dismissing one or more causes of action asserted against him on the ground that. . . . there is another action pending between the same parties for the same cause of action in a court of any state or the United States" (Lash Affair By J. Paris, LLC v Mediaspa, LLC, 2017 WL 6539284 [Sup Ct NY Cnty 2017]).

With respect to the subject of the actions, the relief sought must be "the same or substantially the same" (id.; Siegel, Practice Commentaries, McKinney's Cons. Laws of NY, Book 7B, CPLR 3211.15 at 26—27). This criterion is lacking where "the relief demanded is antagonistic and inconsistent" (Arred Enters. Corp. v. Indemnity Ins. Co., 108 AD2d 624, 627, 485 N.Y.S.2d 80) or "[t]he purposes of the two actions are entirely different" (id.; see also, Matter of Sullivan, 289 NY 323, 325—326, 45 N.E.2d 819 [suit [*6]brought in individual and representative capacity, respectively]; Alpert v. 28 Williams St. Corp., 63 NY2d 557, 568, n. 4, 483 N.Y.S.2d 667, 473 N.E.2d 19 [same]).

(White Light Productions, Inc. v On the Scene Productions, Inc., 231 AD2d 90, 94 [1st Dept 1997]).

Here, Defendant argues that Plaintiff's defamation per se claim should be dismissed because this action is duplicative of another action between the parties, entitled Ari Teman v. Eric Braverman, M.D., Richard Smayda, D.O., Sandip Buch, M.D., et al., which is currently pending before the Supreme Court of the State of New York, in New York County, under Index No. 805410/2014 (the "2014 Action"). Unlike the present action, which seeks damages for defamation, the 2014 action identified by Defendant (and in which action Defendant is a plaintiff) involves Defendant's attempt to recover damages for negligence, fraud, and negligent infliction of emotion distress based on a purported intentional misdiagnosis of borderline personality disorder and other psychiatric disorders, and related medical treatment. Moreover, the Domain and the Facebook Post, which give rise to the parties' allegations herein, are not implicated in the 2014 Action. Accordingly, since the relief sought by the two parties is not the same or substantially the same, and the principal facts involved are different, it is apparent that this action may not be dismissed pursuant to CPLR 3211(a)(4).

D. Failure to Join a Necessary Party.

Pursuant to CPLR 1001 ("Necessary joinder of parties"), provides, in relevant part, as follows:

(a) Parties who should be joined. Persons who ought to be parties if complete relief is to be accorded between the persons who are parties to the action or who might be inequitably affected by a judgment in the action shall be made plaintiffs or defendants. When a person who should join as a plaintiff refuses to do so he may be made a defendant.

Assuming arguendo that the present corporate owner of the Domain is potentially liable to Plaintiff, the corporate owner is a "joint tortfeasor, which is not a necessary or indispensable party for the purposes of CPLR 1001" (Alamin v Uddin, 19 Misc 3d 1115(A), *2 [Sup Ct NY Cnty 2008]). Plaintiff, in controlling the scope of his claims, can proceed against any or all joint tort-feasors (see Hecht v. City of New York, 60 NY2d 57, 62 [1983] ["a judgment for or against one tort-feasor does not operate as a merger or bar of a claim against other tort-feasors"]). Accordingly, Plaintiff's failure to join the entity presently listed as the owner or manager of the Domain is not a basis to dismiss the Complaint as against Defendant Teman.

E. Qualified Immunity.

The New York Not-For-Profit Corporation Law § 720-a provides in relevant part:

no person serving without compensation as a director, officer or trustee of a corporation, association, organization or trust described in section 501 (c)(3) of the United States internal revenue code1 shall be liable to any person other than such corporation, association, organization or trust based solely on his or her conduct in the execution of such office unless the conduct of such director, officer or trustee with respect to the person asserting liability constituted gross negligence or was intended to cause the resulting harm to the person asserting such liability.

Defendant asserts that, to the extent this court finds he is the publisher of the potentially defamatory statements regarding Plaintiff that are hosted on the Domain, he is entitled to [*7]qualified immunity and protected from liability as an officer of JCorps International, Inc.[FN2] However, Defendant has provided no evidence that JCorps International, Inc., is a not-for-profit corporation whose directors and officers could be entitled to qualified immunity for liability. Moreover, Defendant fails to establish that he is a "director, officer, or trustee" entitled to protections afforded by the statute, or that the potentially defamatory statements were made by Defendant in the execution of his duties as an officer of JCorps International, Inc. Defendant does not provide any information regarding the work performed by JCorps International, Inc., his responsibilities as a purported officer of the entity, or how the defamatory statements that form the basis of this action were published in the course of his non-profit work. Regardless, Plaintiff's allegation in the Complaint that the subject defamatory statements were published maliciously and with the specific intent of harming Plaintiff raises questions of facts as to Defendant's entitlement to qualified immunity under the statute. Accordingly, Defendant's motion to dismiss the Complaint is denied.

II. MOTION TO DISMISS COUNTERCLAIMS.

Plaintiff seeks dismissal, pursuant to CPLR 3211(a)(7), of all counterclaims asserted against Plaintiff in Defendant's Answer for failure to state a cause of action. Defendant asserts eight counterclaims against Plaintiff for: (1) defamation per se; (2) tortious interference with a business; (3) intentional infliction of emotional distress; (4) breach of contract; (5) malicious prosecution; (6) abuse of process; (7) fraud; and (8) trade secret theft. For the reasons set forth below, Defendant's counterclaims are dismissed in their entirety.

On a motion to dismiss under CPLR 3211(a)(7), a court must determine whether, accepting the facts as alleged in the complaint as true, and according the plaintiffs the benefit of every favorable inference, whether those facts fit within any cognizable legal theory (Leon v. Martinez, 84 NY2d 83, 87-88 [1994]). The proper inquiry is whether the complaint is "sufficiently particular to give the court and parties notice of the transactions, occurrences, or series of transactions' that form the basis of the complaint and 'the material elements of each cause of action.'" (High Definition MRI, P.C. v. Travelers Cos., Inc., 137 AD3d 602, 602 [1st Dept 2016]). However, "[a]llegations consisting of bare legal conclusions, with no factual specificity, however, are insufficient to survive a motion to dismiss (Godfrey v Spano, 13 N.Y.3d 358, 373 [2009], citing Caniglia v. Chicago Tribune-N.Y. News Syndicate, 204 AD2d 233, 233-34 [1st Dept 1994]).

A. Defamation.

Defendant's first counterclaim alleges a litany of purported defamatory statements by Plaintiff regarding Defendant. However, except for the Facebook Post, Defendant's allegations are devoid of any information regarding the precise words stated by Plaintiff, the date and time of those statements, and any information regarding who those statements were made too. Such vague allegations do not satisfy the heightened pleading requirement for libel and slander claims under CPLR 3016(a) and thus fail to state a cause of action for defamation per se against Plaintiff (see Starr v Akdeniz, 162 AD3d 948, 950 [2d Dept 2018] ["plaintiff failed to comply with the pleading requirements of CPLR 3016(a) by failing to identify any persons to whom the allegedly defamatory statements were made"]; [reversing and dismissing defamation claim as [*8]"plaintiff failed to allege the precise words allegedly giving rise to defamation"]).

As for Plaintiff's Facebook Post, "[s]ince the statements complained about essentially summarize or restate the allegations of the complaint herein, they are protected by Civil Rights Law § 74, which provides in pertinent part that 'A civil action cannot be maintained against any person, firm or corporation, for the publication of a fair and true report of any judicial proceeding.' (McRedmond v Sutton Place Rest. and Bar, Inc., 48 AD3d 258, 259 [1st Dept 2008], quoting Civil Rights Law § 74). To be "fair and true," the account need only be "substantially accurate" (Holy Spirit Assn. for Unification of World Christianity v. New York Times, 49 NY2d 63, 67 [1979]). Regardless, while Defendant attaches a copy of the Facebook Post, he again fails to specifically plead any individual to whom the Facebook Post was published. Accordingly, the court finds the Answer fails to state a cause of action for defamation per se against Plaintiff.

B. Tortious Interference With Business.

A plaintiff asserting a tortious interference with business relations must demonstrate:

1) the existence of a valid contract, 2) the defendant's knowledge of the contract, 3) that the defendant intentionally and improperly procured a breach, and 4) damages. (White Plains Coat & Apron Co., Inc. v. Cintas Corp., 8 NY3d 422, 426, 835 N.Y.S.2d 530, 867 N.E.2d 381 [2007] ). A prospective business relationship, in contrast to an existing contract, constitutes a "speculative interest" that is less protected than an existing contract. (Id. at 425—26[)]

(Kramer v Skyhorse Pub., Inc., 45 Misc 3d 315, 326 [Sup Ct NY County 2014]).

Absent any allegations that comedy club owners actually breached specific contracts as a result of having read the Facebook Post, the interest Defendant seeks to protect is speculative. Moreover, as Defendant premises this cause of action solely on the alleged defamatory content of Plaintiff's statements, and in light of the insufficiency of such allegations, Defendant fails to plead a cause of action for tortious interference with business relations.

C. Intentional Infliction of Emotional Distress.

To state a claim for intentional infliction of emotional distress, Defendant must set forth facts from which the court or a jury could infer that Plaintiff acted "solely for malevolent purposes," and must allege conduct that is "so extreme and atrocious" that it shocks the conscience. (Fleischer v NYP Holdings, Inc., 104 AD3d 536, 538-39 [1st Dept 2013]). Here, the court finds that Plaintiff's Facebook Post, which was expressly made in response to a publication in the New York Post regarding this lawsuit, was not made solely for malevolent purposes, nor is it demonstrative of conduct that is so extreme that it shocks the conscience. In addition, the claim is impermissibly duplicative of Defendant's counterclaim for defamation per se. (see Matthaus v Hadjedj, 148 AD3d 425, 425 [1st Dept 2017] ["Supreme Court properly granted defendant's motion to dismiss plaintiff's claim for intentional infliction of emotional distress as duplicative of her defamation cause of action," moreover, "plaintiff's factual allegation that defendant made false statements to the police, causing her arrest and incarceration, was insufficient as a matter of law to constitute extreme and outrageous behavior to sustain the claim"]).

D. Breach of Contract.

To state a claim for breach of contract in New York, one "must allege (1) the existence of an agreement, (2) performance of the agreement by one party, (3) breach by the other party, and (4) damages" (Oppman v IRMC Holdings, Inc., 14 Misc 3d 1219[A] [Sup Ct NY Cnty 2007], [*9]citing Noise in the Attic Prods., Inc. v London Records, 10 AD3d 303, 306 [1st Dept 2004] [citation omitted]). "The damages for which a party may recover for a breach of contract are such as ordinarily and naturally flow from the non-performance. They must be proximate and certain, or capable of certain ascertainment, and not remote, speculative or contingent" (Fruition, Inc. v. Rhoda Lee, Inc., 1 AD3d 124, 125 [1st Dept 2003] [citation omitted]).

Here, Defendant fails to allege in more than conclusory terms the existence of any agreement between himself and Plaintiff (see Mandarin Trading Ltd. v Wildenstein, 16 NY3d 173, 181-182 [2011], quoting American-European Art Assoc. v Trend Galleries, 227 AD2d 170, 171 [1st Dept 1996] ["Generally, a party alleging a breach of contract must 'demonstrate the existence of a . . . contract reflecting the terms and conditions of their . . . purported agreement' "]). Moreover, Defendant fails to allege his obligations and his performance thereof under any such agreement, or any specific damages incurred by Defendant as a consequence of Plaintiff's purported breaches. The plaintiff's allegations regarding the alleged agreement are too vague, indefinite, and speculative to plead a viable breach of contract cause of action.

E. Malicious Prosecution and Abuse of Process.

" 'The elements of the tort of malicious prosecution of a civil action are (1) prosecution of a civil action against the plaintiff, (2) by or at the instance of the defendant, (3) without probable cause, (4) with malice, (5) which terminated in favor of the plaintiff, and (6) causing special injury' " (347 Cent. Park Assoc., LLC v Pine Top Assoc., LLC, 144 AD3d 785, 785-86 [2d Dept 2016] [internal quotation marks and citation omitted]). A plaintiff must "prove an entire lack of probable cause in the prior proceeding" (id. [citation omitted]).

Here, Defendant's counterclaim is based on Plaintiff's continued prosecution of this action, which has not yet terminated in Defendant's favor. Moreover, this court's denial of Defendant's motion to dismiss Plaintiff's cause of action for defamation per se demonstrates that Plaintiff's Complaint is not entirely lacking in probable cause sufficient to sustain a cause of action for malicious prosecution. Accordingly, Plaintiff's motion to dismiss Defendant's counterclaim for malicious prosecution is granted.

As for Defendant's abuse of process claim, "[i]t has repeatedly been held that the mere institution of a civil action which has occasioned a party trouble, inconvenience and the expense of defending, will not support an action for abuse of process" (Curiano v Suozzi, 102 AD2d 759 [1st Dept 1984], affd, 63 NY2d 113 [1984]). A valid cause of action for abuse of process requires that there be "an unlawful interference with one's person or property under color of process...." (id). Here, there is no such allegation, nor do the facts plead support such allegation.

F. Fraud and Aiding and Abetting Fraud.

"The elements of a cause of action for fraud require a material misrepresentation of fact, knowledge of its falsity, an intent to induce reliance, justifiable reliance by plaintiff and damages" (Eurycleia Partners, LP v Seward & Kissel, LLP, 12 NY3d 553, 559 [2009]). "[E]ach of these essential elements must be supported by factual allegations sufficient to satisfy CPLR 3016(b), which requires that 'the circumstances constituting the wrong shall be stated in detail.'" (Megaris Furs, Inc. v Gimbel Bros., Inc., 172 AD2d 209, 209-10 [1st Dept 1991]). "General allegations that defendant entered into a contract while lacking the intent to perform it are insufficient to support [a fraud] claim." (New York Univ. v. Continental Ins. Co., 87 NY2d 308, 318 [1995]; see also Gentile v. Spadaro, 28 Misc 3d 1218(A), 957 N.Y.S.2d 636 [Sup Ct Queens Cnty 2010] (dismissing claims for fraudulent misrepresentation, fraud, and fraud in the inducement based on allegations regarding defendants' intentions at the time the contract was [*10]entered into).

Here, Defendant's fraud claim is based on allegations that Plaintiff made representations that he would keep certain information confidential, presumably in the course of his treatment of Defendant as Defendant's psychiatrist. Such representations, which relate solely to Plaintiff's purported intent to perform his obligations under an unsubstantiated agreement with Defendant, are not representations of present, collateral facts that give rise to a cause of action for fraud. (see CodeFab, LLC v. WG, Ltd., 2017 NY Slip Op 31089(U), *23 [Sup Ct NY Cnty 2017] ["alleged misrepresentations that the individual defendants would compensate plaintiff for its services constitute future promises to pay which arise out of a contractual obligation and not an obligation collateral to the contract."]). Moreover, Defendant's allegations lack the specificity required by CPLR 3016 in that they do not specify the date and time of any purported fraudulent representations, the persons to whom such representations were made, Defendant's reasonable reliance thereon, or identifiable damages. In the absence of a viable predicate cause of action for fraud, Defendant's counterclaim for aiding and abetting fraud is likewise dismissed.

G. Misappropriation of Trade Secret.

Under New York law, the "elements of a cause of action to recover damages for misappropriation of trade secrets are: (1) possession of a trade secret; and (2) use of that trade secret by the defendant in breach of an agreement, confidential relationship or duty, or as a result of discovery by improper means," and further, "[a]n essential prerequisite to legal protection against the misappropriation of a trade secret is the element of secrecy." (Tri-Star Light. Corp. v Goldstein, 151 AD3d 1102, 1106 [2d Dept 2017] [citations and quotes omitted]).

Defendant's Answer fails to allege any trade secret owned or possessed by Defendant. Accordingly, the Answer fails to state a cause of action for misappropriation of trade secret by Plaintiff.

Finally, to the extent that Defendant's Answer purports to assert counterclaims against any individuals other than Plaintiff, Defendant failed to serve the Answer and Counterclaims and to file proof of service thereof on any of the proposed counterclaim defendants. In addition, the time to do so has since expired as it has been more than one-hundred and twenty days since the filing of Defendant's Answer. Accordingly, all counterclaims against all proposed counterclaim defendants are dismissed.

III. MOTION TO VACATE AND TO COMPEL DISCOVERY.

In motion sequence number 005, Plaintiff seeks an order: (1) vacating or modifying this court's decision and order, dated November 30, 2018, which denied Plaintiff's motion for a preliminary injunction in motion sequence number 001, and scheduling a hearing on the motion; (2) directing that discovery shall proceed on an expedited basis; and (3) compelling Defendant to produce documents in response to Plaintiff First Request for Documents and Things, dated November 21, 2018. Defendant opposes the motion.

Under New York CPLR 2221(a), "the Supreme Court has inherent power to set aside, correct or modify its own orders" on any bases or upon terms it finds appropriate. (Halloran v Halloran, 161 AD2d 562, 564 [2d Dept 1990]). Notwithstanding the court's unequivocal indication on the record that, after a preliminary conference and the requisite discovery was completed, a hearing would be scheduled on Plaintiff's motion for a preliminary injunction (see Hearing Transcript 10/4/18, p.15:13-17:3), on November 30, 2018, the court entered a decision and order denying the motion "as stated on the Record" (NYSCEF Doc. No. 72). This decision and order, which is inconsistent with the parties' discussions at the preliminary conference and [*11]the court's prior rulings and guidance, was entered in error and should be vacated.

As for Plaintiff's motion to compel discovery, the court has inherent authority to supervise and manage the discovery process. Upon review of the basis for Defendant's refusal to produce any documents in response to Plaintiff's demand for discovery and inspection (NYSCEF Doc. No. 69) and to submit to a deposition as noticed by Plaintiff (NYSCEF Doc. No. 68), the court finds Defendant's objections to be without merit. Accordingly, Defendant is directed to serve documents in response to Plaintiff's discovery requests and to submit to a deposition as set forth herein.

CONCLUSION

Accordingly, it is hereby

ORDERED that (MSN 002) Defendant's motion to dismiss the Complaint is denied in its entirety; and it is further

ORDERED that (MSN 003) Plaintiff's motion to dismiss Defendant's counterclaims is granted and all of Defendant's counterclaims in his Answer are dismissed; and it is further

ORDERED that (MSN 005) Plaintiff's motion to vacate this court's prior decision and order which denied Plaintiff's motion for a preliminary injunction is vacated; and it is further

ORDERED that Plaintiff's motion to compel discovery is granted as follows:

(a). Defendant is directed to serve all documents in his possession that are responsive to Plaintiff's demand for discovery and inspection, dated October 21, 2018, within thirty (30) days of service on Defendant of a copy of this decision and order with notice of entry; and

(b). Defendant is directed to submit to a deposition upon notice by Plaintiff of the time and place of said deposition within sixty (60) days of service of a copy of this decision and order with notice of entry; and it is further

ORDERED that a hearing will be held on Plaintiff's motion for a preliminary injunction (MSN 001) on July 18, 2019, at the courthouse located at 80 Centre Street, New York, New York, in Part 23, Room 307, at 2:30 PM; and it is further

ORDERED that no party in this action may file any further motions without the prior express approval of this court, which approval may be sought by emailing the part at sfc-part23@nycourts.gov and copying the counsel of record for all parties in this action on said email.

Any requested relief not otherwise discussed herein has nonetheless been considered by the court and is hereby denied and this constitutes the decision and order of the court.

Dated: May 13, 2019

Hon. W. Franc Perry Footnotes

Footnote 1: Defendant filed an answer to the Complaint on September 18, 2018 (see NYSCEF Doc. No. 14). On November 9, 2018, on the last day Plaintiff had to respond to the counterclaims in Defendant's initial answer, Defendant filed a second answer entitled an "Answer With Counterclaims" (see NYSCEF Doc. No. 64), which is Defendant's operative pleading (see CPLR 3025[a]).

Footnote 2: Alternatively, Defendant describes himself as "the unpaid founder of JCorps International Inc." (NYSCEF Doc. No. 70, p.2).