Opinion
INDEX NO. 452016/2018
09-04-2019
PETER CEDENO, PETER L. CEDENO & ASSOCIATES, P.C., Plaintiffs, v. ATESA PACELLI, ANTHONY PACELLI, JOHN DOES, BEING THE NAME OF THE THIRD PARTY OR PARTIES EMPLOYED BY ATESA PACELLI AND ANTHONY PACELLI TO HARASS AND DEFAME PLAINTIFFS Defendants.
NYSCEF DOC. NO. 184 PRESENT: HON. MARGARET A. CHAN Justice MOTION DATE 11/07/2018, 11/09/2018, 01/31/2019, 02/01/2019 MOTION SEQ. NO. 001 002 005 006
DECISION + ORDER ON MOTION
The following e-filed documents, listed by NYSCEF document number (Motion 001) 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 49, 52, 54, 56, 80, 81, 82, 83, 84, 85, 86, 87, 88, 89, 90, 91, 92, 93, 94, 117, 118, 119, 120, 121, 122, 123, 124, 125, 126, 127, 128, 129, 130, 131, 138, 182 were read on this motion to/for INJUNCTION/RESTRAINING ORDER. The following e-filed documents, listed by NYSCEF document number (Motion 002) 41, 42, 43, 44, 45, 46, 47, 48, 50, 53, 55, 95, 96, 97, 98, 99, 100, 101, 102, 103, 104, 105, 106, 107, 108, 109, 110, 111, 112, 113, 114, 115, 116, 161, 162, 163, 164, 165, 166, 167, 168 were read on this motion to/for CONSOLIDATE/JOIN FOR TRIAL. The following e-filed documents, listed by NYSCEF document number (Motion 005) 139, 140, 141, 142, 143, 144, 145, 146, 147, 148, 149, 175, 176 were read on this motion to/for DISMISS. The following e-filed documents, listed by NYSCEF document number (Motion 006) 150, 151, 152, 153, 154, 155, 156, 157, 158, 159, 160, 169, 170, 171, 172, 173, 174, 177, 178, 179, 180, 181 were read on this motion to/for DISMISS.
This is an action for, among other things, defamation. In motion sequence 001, plaintiffs, Peter Cedeno and Peter L. Cedeno & Associates, P.C. (collectively, plaintiffs or Cedeno and his firm) move for: 1) an order restraining defendants, Atesta Pacelli (Atesta P) and Anthony Pacelli (Anthony P) (collectively, defendants or the Pacellis), and any person acting on their behalf, from among other things, publishing statements on websites, including Google Review sites and Ripoff Report, concerning plaintiffs; 2) a restraining order against defendants from contacting plaintiffs; and 3) an order directing defendants and any person acting on their behalf to remove any statements published on, among others, Google and Yahoo, concerning plaintiffs, including, but not limited to those listed in Schedule A of the amended complaint (NYSCEF # 132, ¶¶133-260). Atesta P cross-moves pursuant to 22 NYCRR 130-1.1 for sanctions against plaintiffs. Plaintiffs' motion and Atesta P's cross-motion are opposed by each other.
In motion sequence 002, plaintiffs move pursuant to CPLR 602 to consolidate this action with a related action entitled Pacelli et al v Peter L. Cedeno & Associates, P.C. et al, Index No. 158224/2016 (Pacelli action). Defendants oppose plaintiffs' motion.
In motion sequence 005, Anthony P moves pursuant to CPLR 3211(a)(1) and (7) to dismiss the complaint, or in the alternative, for summary dismissal of the complaint pursuant to CPLR 3211(c). In motion sequence 006, Atesta P moves pursuant to CPLR 3211(a)(1) and (7) to dismiss the complaint, or in the alternative, for an order pursuant to CPLR 3024 requiring plaintiffs to amend the complaint to provide a more definite statement, or in the alternative, for summary dismissal of the complaint pursuant to CPLR 3211(c). Plaintiffs oppose the Pacellis' respective motions. Motion sequences 001, 002, 005, and 006 are consolidated for joint disposition.
FACTUAL BACKGROUND
The Pacellis were going through a divorce in 2016. Atesta P retained Cedeno and his firm to represent her in the divorce proceedings. In the course of Cedeno's representation of Atesta P, the professional relationship allegedly strayed into a personal one. In September 2016, Atesta P and Anthony P commenced the related Pacelli action. The Pacellis allege that Cedeno developed a sexual relationship with Atesta while Cedeno and his law firm was counsel to Atesta P and that Cedeno sexually assaulted Atesta P (NYSCEF # 97). The Pacellis asserted claims against Cedeno and his firm for: breach of fiduciary duty; violation of judiciary law § 487; sexual battery and assault; intentional infliction of emotional distress; and loss of consortium. In February 2017, Cedeno and his firm filed an answer and a counterclaim for defamation alleging, among other things, that Atesta P falsely stated that Cedeno raped her (NYSCEF # 98, ¶¶225-230).
In July 2018, Cedeno and his firm initiated the instant Cedeno action against the Pacellis alleging that "the Pacellis authored, created, and published or caused John Does to author, create, or publish over 120 false and defamatory reviews and websites concerning Plaintiffs" (NYSCEF # 132, ¶26). Plaintiffs assert claims for: libel; trade libel; aiding and abetting defamation; intentional infliction of emotional distress (IIED); aiding and abetting IIED; intentional interference with prospective business relations; and vicarious liability.
DISCUSSION
Consolidation - Motion Sequence 002
In support of their motion for consolidating the Pacelli and Cedeno actions, plaintiffs contend that the actions share common questions of law and fact. Defendants counter that the two actions are factually dissimilar and that consolidating the actions will vastly expand the scope of discovery.
"When actions involving a common question of law or fact are pending before a court, the court, upon motion, . . . may order the actions consolidated, and may make such other orders concerning proceedings therein as may tend to avoid unnecessary costs or delay" (CPLR 602 [a]). "Consolidation is appropriate where it will avoid unnecessary duplication of trials, save unnecessary costs and expense and prevent the injustice which Would result from divergent decisions based on the same facts" (Chinatown Apts., Inc. v New York City Tr. Auth., 100 AD2d 824, 825 [1st Dept 1984]). However, "[t]he identity of facts is insufficient to merit consolidation of the actions" if both actions, though arising out of the same transaction, do not require a showing of proof that overlaps (Beerman v Moorhaim, 17 AD3d 302, 302 [2d Dept 2005]).
Plaintiffs' motion to consolidate the Pacelli and Cedeno actions is denied. While both actions involve the same parties, the factual basis for the actions differ and the claims do not overlap. In the Pacelli action, the counterclaim for defamation is based on alleged defamatory statements made by the Pacellis to the media concerning the alleged sexual assault. In the Cedeno action, Cedeno and his firm's claims for defamation allege that the Pacellis created or caused to be created defamatory statements posted on the internet related to Cedeno and his firm.
While Cedeno and his firm's claim and counterclaim in the respective actions are for defamation, the types of statements that were allegedly published are different and distinct which would seek different discovery. And the decision on either case does not affect the other case. Hence, consolidation of these two cases are not warranted. Motions to Dismiss - Motion Sequence 005 and 006
CPLR 1024Initially, Anthony P moves to dismiss the co-defendants known as John Does. Anthony P argues that the court should not consider plaintiffs' use of John Does as defendants because plaintiffs fail to demonstrate that they made "genuine effort(s) to ascertain the defendants' identities prior to the running of the Statute of Limitations" (Tucker v Lorieo, 291 AD2d 261, 261 [1st Dept 2002]; CPLR 1024).
Anthony P's request is denied. The complaint alleges that plaintiffs did in fact perform due diligence to determine the identity of defendant John Does (NYSCEF # 132, ¶25). Further, counsel for plaintiffs affirms that his firm issued "countless rounds of subpoenas" in order to determine defendants' identities (NYSCEF #18 ¶7; see also NYSCEF #19, Cedeno aff ¶7). Indeed, the subpoenas issued by plaintiffs were at least somewhat successful in determining the identities of some of the John Does (NYSCEF #18 ¶13-17).
CPLR 3211(c)Under CPLR 3211(c), "the court, after adequate notice to the parties, may treat the motion as a motion for summary judgment." This court has not given notice to the parties that it is entertaining the instant motions to dismiss as motions for summary judgment and does not do so in this decision (see Four Seasons Hotels Ltd. v Vinnik, 127 A.D.2d 310, 320 [1st Dept 1987]). The respective affidavits submitted by Atesta P and Anthony P denying to creating or cause to be created the alleged defamatory statements do not change this courts' determination to decline to convert the instant motions to dismiss to motions for summary dismissal.
CPLR 3211(a)(7)When considering a motion to dismiss under CPLR 3211(a)(7), the court must evaluate "whether the pleading states a cause of action, and if from its four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law a motion for dismissal will fail" (African Diaspora Maritime Corp. v Golden Gate Yacht Club, 109 AD3d 204 [1st Dept 2013]). Generally, the court must accept the facts in plaintiff's complaint as being true, and "accord plaintiffs the benefit of every possible favorable inference" (Goldman v Metropolitan Life Ins. Co., 5 NY3d 561, 570-571 [2005] [internal quotations and citations omitted]).
Once the court accepts the facts of the complaint as true, the court must determine whether, "plaintiff can succeed upon any reasonable view of the facts stated" (Campaign for Fiscal Equity, Inc. v State, 86 NY2d 307, 318 [1995]). However, "allegations consisting of bare legal conclusions as well as factual claims flatly contradicted by documentary evidence are not" accepted as true or accorded every favorable inference (David v Hack, 97 AD3d 437 [1st Dept 2012]).
Defamation
Defamation is "the making of a false statement that 'tends to expose the plaintiff to public contempt, ridicule, aversion or disgrace, or induce an evil opinion of him in the minds of right-thinking persons, and to deprive him of their friendly intercourse in society' " (Manfredonia v Weiss, 37 AD3d 286, 286 [1st Dept 2007], quoting Sydney v MacFadden Newspaper Publ. Corp., 242 NY 208, 211-212 [1926]). To state a claim for defamation, a plaintiff must allege "a false statement, published without privilege or authorization to a third party, constituting fault as judged by, at a minimum, a negligence standard, and it must either cause special harm or constitute defamation per se" (Frechtman v Gutterman, 115 AD3d 102, 104 [1st Dept 2014]; Stepanov v Dow Jones & Co., Inc., 120 AD3d 28, 34 [1st Dept 2014]). In evaluating whether a cause of action for defamation is successfully pleaded, the "words must be construed in the context of the entire statement or publication as a whole, tested against the understanding of the average reader, and if not reasonably susceptible of a defamatory meaning, they are not actionable and cannot be made so by a strained or artificial construction" (Dillon v City of New York, 261 AD2d 34, 38 [1st Dept 1999]).
Initially, defendants argue that the complaint fails to specify with particularity any defamatory statements Anthony P or Atesta P created and published or caused to be created and published. Defendants' argument that plaintiffs' allegation fails to give particularity as to each separate defendant is without merit.
CPLR 3016(a) requires that in a defamation action, "the particular words complained of . . . be set forth in the complaint." The complaint also must allege the time, place and manner of the false statement and to specify to whom it was made (Knopf v Sanford, 123 AD3d 521, 522 [1st Dept 2014]; Rosenberg v Home Box Office, Inc., 33 AD3d 550, 550 [1st Dept 2006]).
The complaint asserts that over the course of approximately one year, the defendants authored, created, and published, or caused John Does to author, create, or publish over 120 false and defamatory reviews and websites concerning plaintiffs (NYSCEF #143, ¶26). For each of the allegations for defamation, plaintiffs set forth the circumstances of the publication of the alleged defamatory statements, including the words, the time, the place and to whom the statements were made (see id., Schedule 1). The complaint gives adequate notice of the transactions and occurrences plaintiffs intend to prove and the material elements of the defamation cause of action (CPLR 3016[a]).
The Appellate Division, First Department has held that on a motion to dismiss a claim for defamation, a plaintiff need "[n]ot specify exactly which of the defendants made a particular statement" in order to satisfy the heightened pleading requirements of CPLR 3016(a) (Fletcher v Dakota, Inc., 99 AD3d 43, 55 [1st Dept 2012]). In Fletcher, the Court found that plaintiff's allegation that "one or more Individual Defendants" made defamatory statements satisfied the heightened pleading standard (id.). Similarly, plaintiffs here allege that "the Pacellis, either on their own or by paying and directing John Does," created and/or cause defamatory statements regarding plaintiffs to be published (see generally, Schedule 1).
Defendants rely on Mahmud v Bon Secours Charity Health Sys. (289 F Supp 2d 466 [SDNY 2003]) and BCRE 230 Riverside LLC v Fuchs (59 AD3d 282 [1st Dept 2009]) for the proposition that plaintiffs' failure to specify the statement that each defendant made is fatal to their case. Defendants' reliance thereon is misplaced.
The relevant part of the allegations in Mahmud stated that: "Since Summer 2001, upon information and belief, some or all of the individual defendants have slandered Plaintiff by telling various people that she is 'crazy,' 'insane,' and/or 'has serious mental problems'. " (Mahmud, 289 F Supp at 476). The Court in Mahmud dismissed the plaintiff's claim for defamation because the plaintiff failed to plead facts alleging who made the alleged defamatory statements, when they were made, and to whom they were communicated (id.).
In BCRE, the court dismissed the counterclaim for defamation based on defendant's failure to plead the alleged defamatory statement. The court held that "[d]efendant's use of the qualifying 'words to the effect,' as well as his reliance on the text of a third party's paraphrasing of plaintiff's allegedly false statements, made these allegations insufficient to satisfy the particularity requirement of CPLR 3016(a)" (59 AD3d at 283; Trakis v Manhattanville Coll., 51 AD3d 778, 781 [2d Dept 2008] [dismissing plaintiff's claim for defamation pursuant to CPLR 3016(a) for his failure to identify the alleged defamatory statements and noting that plaintiff also failed to identify to whom the statements were published and who made the statements]).
Unlike those cases, plaintiffs here identify the Pacellis as the parties responsible for making or causing to be made the allegedly defamatory statements, the substance of the statements, when the statements were made and to whom the statements were made.
Next, defendants argue that even if plaintiffs' defamation claims were pled with particularity, the alleged defamatory statements are non-actionable opinion, as the comments are "mixed opinion."
A statement that is an expression of "pure opinion" may not give rise to an action for defamation (Steinhilber v Alphonse, 68 NY2d 283, 289 [1986]). A statement of mixed opinion is a statement that implies it is based upon facts that may justify the opinion, but are unknown to other individuals who read or hear the statement (Davis v Boeheim, 24 NY3d 262, 269 [2014]). In a "mixed opinion" case, "the actionable element . . . is not the false opinion itself - it is the implication that the speaker knows certain facts, unknown to his audience, which support his opinion and are detrimental to the person about whom he is speaking" (Steinhilber, 68 NY2d at 289-290]). Moreover, for a mixed opinion to be actionable, the implied facts must themselves be a gross distortion or misrepresentation (id.).
Plaintiffs allege that defendants paid an individual identified as "Laura Bang" to publish two false reviews regarding plaintiffs. The first review, published on October 4, 2017, states:
"I have a good friend whose experience with Mr. Cedeno was very negative. Apparently, this lawyer wasn't truthful about anything - not his work load, experience of his staff, or the prospects of his case. He found Mr. Cedeno to be dishonest and strictly out for himself. Please do homework before hiring. My friend learned about the info in the news AFTER he hired Mr. Cedeno. Obviously it was a mistake. I would give zero stars, not even one star" (Complaint at ¶192).
The second review, published on November 8, 2017 states:
"What a mistake I made. Please do your homework before hiring. Mr. Cedeno has several complaints against him that involve sexual misconduct. My ex-husband used this fact to make me look like an idiot for hiring him. For all the trouble, he was not interested in my case and messed up several items that cost me lots of money. Don't make the mistake that I made. Do your research!" (id. ¶259).
Here, accepting plaintiffs' allegations as true, Laura Bang's alleged statements adequately support a claim for defamation against defendants. The court notes that Laura Bang's first statement claims that they had a "good friend" who hired plaintiffs and that the friend had a negative experience, and their second post, which plaintiff alleges was posted after the first was deleted, one month after the first, indicates that Laura Bang hired plaintiffs and had a negative experience due to plaintiffs' shortcomings.
The statements, which are viewable by potential clients of plaintiffs' law firm, imply that both Laura Bang and Laura Bang's "good friend," know certain facts, unknown to the audience, which support the claims that plaintiffs were "dishonest and strictly out for himself in his profession, which relate directly to plaintiffs' integrity in performing his work as a lawyer. The second statement implies that it is based on undisclosed facts in support of the statements that plaintiff Cedeno "has several complaints against him that involve sexual misconduct" and that plaintiffs were "not interested in [the] case and messed up several times" while representing Laura Bang.
Defendants rely on Sandals Resorts Int'l Ltd. v Google, Inc. (86 AD3d 32 [1st Dept 2011]) for the proposition that Laura Bang's statements are non-actionable statements of opinion. In Sandals, the court held that it is "necessary to consider the writing as a whole, as well as the "over-all context" of the publication, to determine "whether the reasonable reader would have believed that the challenged statements were conveying facts about the libel plaintiff" (id. at 42). Examining the alleged defamatory statements through this lens, the court found that the statements at issue were "an exercise in rhetoric, seeking to raise questions in the mind of the reader regarding the role of Jamaican nationals in the Sandals resorts located in Jamaica" (id.).
The same cannot be said here. The 120-plus alleged defamatory statements at issue here were posted on websites that may consist of readers seeking information to assist in their decision hiring a certain attorney. These statements also imply or outright state that the writer hired plaintiffs, which further imply or outright state facts detrimental to plaintiffs' profession. Moreover, the statements by Laura Bang and those allegedly posted by the John Does can be proven true or false - plaintiffs deny ever being hired by Laura Bang or the other John Does (see Woodbridge Structured Funding, LLC v Pissed Consumer, 125 AD3d 508, 509 [1st Dept 2015]).
Other statements alleged in the complaint are also mixed opinions in that each statement implies that the poster knew facts unrevealed to the reader (Complaint at ¶¶ 149, 150, 158, 165, 189, 191, 192, 193, 242, 243). For example, one statement states that, "I can say he is the worst lawyer, [sic] I have ever hired. Wrong choice for me" (id. ¶158). While clearly an opinion, the statement states that the poster hired Cedeno to perform legal work and that Cedeno performed some work, but fails to describe the basis in fact for the opinion that Cedeno performed poorly and implies that the basis remains undisclosed to the reader.
Plaintiffs also adequately plead claims for defamation per se. A statement is actionable as defamation per se where the statement "suggests improper performance of one's professional duties or unprofessional conduct" (Frechtman, 115 AD3d at 104 [1st Dept 2014]) or disparages and injures plaintiff in their business or profession (Meer Enterprises, LLC v Kocak, 173 AD3d 629 [1st Dept 2019]; People ex rel. Spitzer v Grasso, 21 AD3d 851, 852 [1st Dept 2005]; see Sladkus v Englese, 59 Misc 3d 1219[A] [Sup Ct, NY County 2018]).
Here, as alleged, the statements accuse plaintiffs in their capacity as practicing lawyers, of being, among other things, a "con of a lawyer," "unethical," "unprofessional," "dishonest," "cheater," "liar," "fraud," and over-billing his clients, are sufficient to state a claim for defamation per se (Complaint at ¶¶135, 150, 156, 157, 159, 163, 167, 169, 172-176, 178, 180, 186, 192-193, 195, 200, 202, 211, 217, 221-223, 230, 235, 242, 244, 246-247, 249, 255, 257-259).
Some of the statements serving as a basis for plaintiffs' defamation claims are non-actionable. The statements: Cedeno is a "bottom feeding lawyer [ ] RUN! Before it's too late" (id. ¶148); "Cedeno did the worst possible job on my case. It was like watching Gomer Pyle try to take on Goliath" (id. ¶150); "Peter Cedeno who is the Harvey Weinstein of family court" (id. ¶230); and "I would have gotten a better ruling by reading Law For Dummies and representing myself" (id. ¶139), are non-actionable since such statements are figurative and hyperbolic (see Rockwell Capital Partners, Inc. v HempAmericana, Inc., 173 AD3d 639 [1st Dept 2019]; LeBlanc v Skinner, 103 AD3d 202 [1st Dept 2012]). Similarly, the comments contained within the statements stating that that Cedeno is "sleazy" are opinions (Complaint at ¶¶ 165, 174, 191, 225, 251, 252, 255, 262, 287). Accordingly, the hyperbolic statements and the statements that Cedeno is "sleazy" are not, on their own, a basis for liability.
Other alleged statements state a pure opinion (Complaint at ¶¶155, 159, 187, 191). These statements state an opinion and the factual basis, and do not imply the existence of facts undisclosed to the reader. For instance, in one statement, the poster in one review describes the factual basis for the opinion: "peter cedeno doesn't seem to know what he's doing, stutters to [sic] much[,] doesn't know how to fill out paperwork[,] didn't get any type of respect from the judge" (id. ¶159). Thus, the statements which state a pure opinion may not be a basis for liability.
Vicarious Liability and Aiding and Abetting
Plaintiffs also state a claim for vicarious liability and aiding and abetting. "A principal-agent relationship may be established by evidence of the consent of one person to allow another to act on his or her behalf and subject to his or her control, and consent by the other so to act" (5015 Art Fin. Ptnrs, LLC v Christie's, Inc., 58 AD3d 469, 471 [1st Dept 2009] [internal citations omitted]). Here, plaintiffs allege that defendants John Does were employed by defendants, that the John Does acted on behalf of defendants, that the John Does were under the control of defendants, and that the John Does were paid by defendants (Complaint at ¶¶21-24). Defendants fail to cite to any authority suggesting that a defendant may not be vicariously liable for an employee's conduct where the employee is a "John Doe."
Tortious Interference with Economic Relations
Plaintiffs' claim for tortious interference with economic relations is dismissed as the complaint fails to plead that either of the plaintiffs had a business relationship with a third-party where the alleged defamatory statements caused an injury to that business relationship (see Amaranth LLC v J.P. Morgan Chase & Co., 71 AD3d 40, 47 [1st Dept 2009]).
Intentional Infliction of Emotional Distress (IIED)
At the outset, plaintiff's claims for IIED based on the factual allegations contained in Schedule 1 of the complaint are dismissed, as they are factually duplicative of plaintiffs' defamation claim (see Akpinar v Moran, 83 AD3d 458, 459 [1st Dept 2011]). In any event, the alleged defamatory statements are not "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency" (Howell v New York Post Co., 81 NY2d 115, 122 [1993]).
Plaintiffs also allege that defendants took harassing actions against plaintiffs, including posting of: Cedeno's cell-phone number on a Craigslist ad on Christmas day; reviews specifically mentioning Cedeno's daughter; and the letter to Cedeno's wife (Complaint at ¶91). Those allegations also fail to sufficiently allege conduct so extreme and atrocious as to support a claim for IIED (Howell, 81 NY2d at 122).
Since plaintiffs' claim for IIED is dismissed, it follows that their claim for aiding and abetting IIED must also be dismissed.
CPLR 3024In the alternative to a dismissal of the complaint, Atesta P requests a more definite statement of the claims alleged in the complaint. CPLR 3024(a) provides that "[i]f a pleading is so vague or ambiguous that a party cannot reasonably be required to frame a response he may move for a more definite statement." Here, with the exception of the statements that the court finds to be non-actionable, the complaint sufficiently alleges the parties to the alleged parties responsible for publishing the defamatory statements, the dates of the statements, and the content of the statements. Therefore, the alternate request to compel plaintiffs to provide a more definite statement is denied. Preliminary Injunction and Restraining Order (Motion Sequence 001)
Plaintiffs' motion for injunctive relief is denied. A preliminary injunction substantially limits a defendant's rights and is thus an extraordinary provisional remedy requiring a special showing (1234 Broadway LLC v W. Side SRO Law Project, 86 AD3d 18, 23 [1st Dept 2011]). A party seeking a preliminary injunction must clearly demonstrate (1) the likelihood of ultimate success on the merits; (2) the prospect of irreparable injury if the injunction is not issued; and (3) a balance of the equities in the movant's favor (Credit Index, L.L.C. v Riskwise Intern. L.L.C., 282 AD2d 246 [1st Dept 2001]). While plaintiffs cite to allegations in the complaint that defendants created or caused to be created the alleged defamatory statements, plaintiffs have failed to present sufficient evidence demonstrating their success on the merits of their claims. As the court has decided plaintiffs' request for permanent relief, the branch of plaintiffs' motion for a temporary injunction is moot.
Plaintiffs' request for a restraining order against defendants is also denied. Plaintiffs fail to cite to any basis in law or discuss in substance the basis for a restraining order against defendants.
Sanctions
Atesta P's cross-motion for sanctions is denied. As addressed above, plaintiffs have brought a meritorious action. Courts may award reimbursements for expenses and reasonable attorney's fees to a party that has been forced to defend a frivolous motion (22 NYCRR 130-1.1[a]). Here, there is no indication that the allegations contained in the complaint and in support of its application for a preliminary injunction were made in bad faith or with an intention to harass. And, as addressed in the section concerning motion sequences 005 and 006, the Cedeno action is not frivolous, nor are plaintiffs required to produce evidence supporting their claims at this stage in the litigation.
CONCLUSION
Accordingly, it is hereby
ORDERED that plaintiffs' motion seeking: 1) an order restraining defendants and any person acting on their behalf, from among other things, publishing statements on websites, including Google Review sites and Ripoff Report, concerning plaintiffs; 2) a restraining order against defendants from contacting plaintiffs; and 3) an order directing defendants and any person acting on their behalf to remove any statements published (MS #001), is denied; it is further
ORDERED that defendant Atesta Pacelli's cross-motion seeking sanctions against plaintiffs (MS #001), is denied; it is further
ORDERED that plaintiffs' motion to consolidate this action with a related action entitled Pacelli et al v Peter L. Cedeno & Associates, P.C. et al, Index No. 158224/2016 (MS #002), is denied; it is further
ORDERED that defendant Anthony Pacelli's motion pursuant to CPLR 3211(a)(1) and (7) to dismiss the complaint, or in the alternative, for summary dismissal of the amended complaint (complaint) pursuant to CPLR 3211(c) (MS #005), is granted to the extent that plaintiffs' claims for: tortious interference with economic relations; IIED; and aiding and abetting IIED are dismissed as against Anthony; it is further
ORDERED that defendant Atesta Pacelli's motion pursuant to CPLR 3211(a)(1) and (7) to dismiss the complaint, or in the alternative, for an order pursuant to CPLR 3024 requiring plaintiffs to amend the complaint to provide a more definite statement, or in the alternative, for summary dismissal of the complaint pursuant to CPLR 3211(c) (MS #006), is granted to the extent that plaintiffs' claims for: tortious interference with economic relations; IIED; and aiding and abetting IIED are dismissed as against Atesta Pacelli; it is further
ORDERED that the parties shall appear for a status conference on September 17, 2019 at 10:00 a.m.; it is further
ORDERED that plaintiff serve a copy of this order with notice of entry upon all parties within 10 days of entry.
This constitutes the Decision and Order of the court. 9/4/2019
DATE
/s/ _________
MARGARET A. CHAN, J.S.C.