Defendant Evan Maloney ("defendant" or "Mr. Maloney") moves for an order (1) pursuant to CPLR § 3211(a)(7) dismissing the endorsed complaint for failure to state a cause of action, and (2) "pursuant to CPLR § 8303-a and Uniform Rule 130-1.1(c), assessing mandatory sanctions against plaintiff and its counsel for commencing this [allegedly] patently frivolous action." Plaintiff Todd Layne Cleaners, LLC ("plaintiff" or "the Cleaners") opposes the motion.

This action implicates the defendant's right to free speech under the First Amendment of the Constitution and the plaintiff's right to be protected from intentional harm due to defendant's alleged tortious interference with its business.

The Cleaners commenced this action by service of a summons and endorsed complaint tersely alleging two causes of action as follows:

1.First Cause of Action for libel - on August 1, 2 and 3, 2007, defendant placed signs along East 77th Street near plaintiff's place of business stating "Todd Layne Cleaners sucks and is overpriced." Such statement is untrue and has caused damage to Plaintiff's business.

2.Second Cause of Action for tortuous (sic)interference with Plaintiff's [*2]business and potential business by the placement of signs along East 77th Street and by being present at Plaintiff's place of business and menacing employees and customers.

Mr. Maloney interposed an answer denying the allegations of the endorsed complaint and asserting an affirmative defense that the complaint fails to state a cause of action.

Since 2006, the Cleaners have been operating a laundry and dry cleaning service at 242-244 East 77th Street, New York, New York. Mr. Maloney is a former resident of 244 East 77th Street and former customer of the Cleaners. Without reciting the underlying facts of Mr. Maloney's "bad experiences" with the Cleaners (as outlined in defendant's Exhibit "B" to its opposition papers), defendant initiated a course of action with the express intention of showing his great displeasure with the Cleaners' services and prices. Mr. Maloney's first action was to either place signs inside the building located at 242-244 East 77th Street or outside along 77th Street stating that "Todd Layne Cleaners SUCKS and IS OVERPRICED." (Exhibit "A" to the Opposition papers). After the commencement of this action, Mr. Maloney distributed a three-page document detailing his "bad experiences" with the Cleaners and this litigation. (Exhibit "B" to the Opposition papers). In addition, Mr. Maloney created a website with a web address of www.toddlaynecleanerssuck.com. (Exhibit "D" to the Opposition papers).

Beside expressing his opinion as noted above, Mr. Maloney also allegedly took physical action by "menacing employees and customers." (Complaint at ¶ 2). Plaintiff alleged that "Defendant entered Plaintiff's store and simulated [lewd acts] in front of female employees and customers, which is captured on video surveillance" (Affidavit of Todd Ofsink ["Mr. Ofsink"], sworn to on August 29, 2007, at ¶ 16). In addition, plaintiff accuses defendant of standing in front of its business "staring into the window and discouraged customers from entering the store." Id, at ¶ 18. Mr. Ofsink then "told defendant when he was simulating [lewd acts] in front of female employees and customers, that if he did not leave the store in ten seconds, I would call the Police." Id., at Footnote 1.

In determining a motion to dismiss a pleading for failure to state a cause of action the court must "accept the facts as alleged in the Complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit into any cognizable legal theory." Leon v Martinez, 84 NY2d 83, 87-88, 614 NYS2d 972, 974 (1994). See also Nonnon v City of New York, 9 NY3d 825 (2007). Affidavits may be used freely to preserve inartfully pleaded, but potentially meritorious claims." Rovello v Orofino Realty Co. Inc., 40 NY2d 633, 635, 389 NYS2d 314, 316 (1976).

In contrast to a motion to dismiss under CPLR � 3211, such as this, the standard of review for a summary judgment motion is different. The movant in that case has the initial burden of proving entitlement to summary judgment (Winegrad v N.Y.U. Medical Center, 64 NY2d 851, 487 NYS2d 316 [1985]) and once the movant has provided such proof, the opposing party must "show facts sufficient to require a trial of any issue of fact" in order to defend the summary judgment motion. CPLR § 3212(b); Zuckerman v City of New York, 49 NY2d 557, 427 NYS2d 595 (1980); [*3]Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 416 NYS2d 790 (1979); Friedman v Chemical Construction Corp., 43 NY2d 260, 401 NYS2d 176 (1977); Spearmon v Times Square Stores Corp., 96 AD2d 552, 465 NYS2d 230 (2d Dept 1983). If the opposing party fails to submit evidentiary facts to controvert the facts set forth in the movant's papers, the movant's facts may be deemed admitted and summary judgment granted since no triable issue of fact exists. Kuehne & Nagel, Inc., v F.W. Baiden, 36 NY2d 539, 369 NYS2d 667 (1975).

"Mere words of general abuse, however opprobrious, ill-natured, vexations, or discourteous, whether written or spoken, do not constitute a basis for an action for defamation, in the absence of an allegation and showing of special damages." 43A NY Jur, Defamation and Privacy § 12. See also Landy v. Norwegian America Line Agency, Inc., 26 AD2d 923, 274 NYS2d 687 (1st Dept 1966). Furthermore, "[s]ince only false assertions of facts can properly be the subject of an action for defamation, an expression of pure opinion' is not actionable as defamation, regardless of how offensive, vituperative, or unreasonable it may be." 43A NY Jur, Defamation and Privacy � 13, Steinhilber v Alphonse, 68 NY2d 283, 289, 508 NYS2d 901, 903 (1986).

"A pure opinion' is a statement of opinion which is accompanied by a recitation of the facts upon which it is based. An opinion not accompanied by such a factual recitation may, nevertheless, be pure opinion' if it does not imply that it is based upon undisclosed facts." Steinhilber v Alphonse, 68 NY2d 283, 289, 508 NYS2d 901, 903 (1986). See also, 43A NY Jur, Defamation and Privacy �� 13 and 14. An expression of pure opinion is not actionable. It receives the Federal constitutional protection accorded to the expression of ideas, no matter how vituperative or unreasonable it may be (citing Rinaldi v Holt, Rinehart Winston, Inc. 42 NY2d 369, 380, 397 NYS2d 943, 950 (1977). Steinhilber v Alphonse, supra . However, where the statement of opinion implies that is based on facts which justify the opinion, but is unknown to those reading or hearing it, is a "mixed opinion" and may be actionable. 43A NY Jur, Defamation and Privacy � 14. The issue of whether the statement is one of a pure opinion or mixed opinion is a question of law for determination by the court. Steinhilber v Alphonse, supra , 43A NY Jur, Defamation and Privacy �15.

In this case, defendant's alleged statement that the Cleaners "sucks and is overpriced" is an expression of "pure opinion." The words may be discourteous and even vexatious, but do not constitute libel or slander because it is accorded federal constitutional protection. The expression that the Cleaners "sucks" is akin to the pejorative comment in Steinhilber v Alphonse, supra , accusing a union member of being a "scab who sucks." Both statements are protected "pure opinions."

The second statement that the Cleaners is "overpriced" is also not actionable. The Court of Appeals has specifically held that merely accusing a vendor of being "overpriced" without implying further scurrilous allegations does not constitute libel per se, which requires a pleading of special damages in the complaint to state a cause of action. Tollefsen Sales Corp. v General Slag Corp., 11 AD2d 713, 205 NYS2d 925 (1st Dept 1960) aff'd 9 NY2d 769, 215 NYS2d 75 (1961).

After considering the complaint and the supporting affidavit in opposition to the motion to dismiss, this Court holds as a matter of law that plaintiff's first cause of action for libel in the endorsed complaint fails to state a cause of action. [*4]

Plaintiff essentially alleges in its second cause of action that defendant interfered with its business by the placement of libelous signs along East 77th Street and "menacing employees and customers." The first cause of action which is grounded on libel does not state a cause of action as this Court determined above that such statements were not libelous and are federally protected free speech. However, the second part of the second cause of action is sufficient to withstand scrutiny under the liberal standard of review on a CPLR § 3211(a)(7) motion to dismiss for failure to state a cause of action. "Modern pleading rules are designed to focus attention on whether the pleader has a cause of action rather than on whether he has properly stated one." Rovello v Orfino Realty Co., 40 NY2d at 676, 389 NYS2d at 316 (citing to 6 Carmody-Wait, 2d NY Prac, § 38:19 and Kelly v Bank of Buffalo, 32 AD2d 875, 302 NYS2d 60 [4th Dept 1969]).

Since the endorsed complaint is inartfully pleaded, this Court will look to Mr. Ofsing's affidavit for potentially meritorious claims. There are possibly three theories that could fit the facts outlined above including: (1) tortious interference with contract, (2) prima facie tort, or (3) interference with business relations.

Tortious Interference with Contract

A claim of tortious interference with contract requires plaintiff to prove "(1) the existence of a valid contract between plaintiff and a third party; (2) the defendant's knowledge of that contract; (3) the defendant's intentional procuring of the breach, and (4) damages." Foster v Churchill, 87 NY2d 744, 749-750, 642 NYS2d 583, 586 (1996); Israel v Wood Dolson Co., 1 NY2d 116, 120, 151 NYS2d 1, 5 (1956). The allegations alleged in the complaint and as amplified by the affidavit in opposition to the motion does not squarely fit such a cause of action partly because plaintiff has not identified the existence of any valid contract between it and a third party.

Distinction Between Prima Facie Tort

and Interference with Business Relations

However, a claim for prima facie tort or interference with business relations may lie under the factual circumstances. The Appellate Division, First Department aptly summarized the distinction between the two claims as follows;

Interference with a business relationship, not amounting to a contract, is actionable under certain circumstances. First, it is actionable if unlawful means are used. Second, it is actionable under the theory of prima facie tort, if lawful means are used but the interference is the infliction of intentional harm, resulting in damage, and done without excuse or justification. The measure of damages is the loss suffered by the plaintiff, including the opportunities for profits on business diverted from it.

Sommer v Kaufman, 59 AD2d 843, 843-844, 399 NYS2d 7, 8 (1st Dept 1977).

To establish a prima facie tort, plaintiff must prove the following elements: [*5]

(1)Infliction of intentional harm.

(2)Resulting in damages.

(3)Without excuse or justification.

(4)By an act or series of acts that would otherwise be lawful.

Sommer v Kaufman, 59 AD2d at 844, 399 NYS2d at 8.

It appears that plaintiff is claiming an interference with business relations and/or prima facie tort. The difference between the two torts is whether "unlawful means" were utilized. In either event, plaintiff has alleged in the complaint as supplemented by the affidavit in opposition to the motion, that defendant either unlawfully and/or intentionally harmed and interfered with its business through his alleged "menacing [of] employees and customers." Thus, at this nascent stage of the litigation, plaintiff has stated a claim for either intentional interference with business relations or prima facie tort in its second cause of action.^[FN2]

Defendant seeks imposition of mandatory sanctions pursuant to CPLR § 8303-a and 22 NYCRR § 130-1.1(c) on the ground that plaintiff has commenced this alleged "patently frivolous action." The imposition of sanctions appears to be mandatory under CPLR § 8303-a and only discretionary under Part 130.

Generally, the courts have imposed mandatory sanctions on plaintiffs who have commenced frivolous actions known as SLAPP suits "designed to chill the exercise of citizen's rights to petition the government or the appropriate administrative agency for redress of a perceived wrong." Entertainment Partners Group, Inc. v Davis, 198 AD2d 63, 64, 603 NYS2d 439, 440 (1st Dept 1993). If the plaintiff's action is not a SLAPP suit, as in this case, no mandatory sanctions need to be imposed when the action was not deemed to be frivolous under the circumstances. Ansonia Associates Limited Partnership v Ansonia Tenants' Coalition, Inc., 253 AD2d 706, 677 NYS2d 575 (1st Dept 1998) (a preliminary injunction was imposed against a tenant's coalition enjoining them from "interfering with plaintiff's business by approaching, accosting, initiating communications with, distributing written communications to, or otherwise disturbing visitors to the Ansonia for purpose of discouraging sales or rental of apartments at the Ansonia" was not deemed frivolous because the defendant's conduct was "not protected speech but merely an instrument of and incidental to wrongful conduct"). [*6]

In this case, this Court has already found the libel allegations to be protected speech, but there remain potential tort claims where plaintiff has alleged wrongful conduct on the part of the defendant as in the Ansonia Associates Limited Partnership case. At the very least, it cannot be said at this juncture that plaintiff's complaint is frivolous.

Accordingly, this Court grants defendant's motion to the extent of dismissing the libel claims. The alleged remaining tort claims state a cause of action. The second branch of the motion for imposition of sanctions is denied.

The foregoing constitutes the decision and order of this court. Courtesy copies of this decision and order have been mailed to counsel for the plaintiff and to the self-represented defendant.

Dated:New York, New York

October 12, 2007Hon. Shlomo S. Hagler, J.C.C.