Upon the foregoing papers, in this action by plaintiffs Alexander Levin (Levin), Steve Maksin (Maksin), and 2814-2824 Emmons Acquisition, LLC (Emmons Acquisition) (collectively, plaintiffs) against defendants Grigory Epshteyn (Epshteyn), Paradise Garden LLC (Paradise Garden), Karina Dukach (Dukach), and Yevgeniy Chertok (Chertok) (collectively, defendants) to recover damages for alleged defamation and malicious prosecution, Dukach and Chertok move for an order: (1) pursuant to CPLR 3211 (a) (7), dismissing plaintiffs' entire amended complaint as against them and Paradise Garden, and (2) pursuant to CPLR 3211 (a) (1), dismissing plaintiffs' entire amended complaint as against them.

Paradise Garden is a limited liability company whose members are Epshteyn and Dukach, along with non-parties Marina Rozenberg (Rozenberg) and Vyacheslav Zhabotinsky (Zhabotinsky). Paradise Garden ran a restaurant/nightclub at premises located at 2814 Emmons Avenue in Brooklyn, New York (the 2814 Emmons Avenue premises), which were leased by it pursuant to a 10-year lease dated September 1, 2005 (the lease). Epshteyn, Dukach, Rozenberg, Zhabotinsky, and Paradise Garden were signatories to the lease. Chertok is the father of Dukach, who was not a signatory to the lease. According to plaintiffs, Chertok was a co-investor in Paradise Garden, who made financial contributions, which, combined with Dukach's contributions, were used to purchase Dukach's membership in Paradise Garden. Chertok was allegedly a "working partner" who received a position as a manager at Paradise Garden's restaurant and a monthly salary from Paradise Garden as compensation for his financial contribution to the business.

On September 13, 2010, Emmons Acquisition acquired title to the 2814 Emmons Avenue premises, and, thereby, became the landlord under the terms of the lease, which had been previously executed by Epshteyn, Dukach, Rozenberg, Zhabotinsky, and Paradise Garden, as tenants. Levin was the acting manager of Emmons Acquisition, and Maksin, who is an attorney, represented Emmons Acquisition in its acquisition of the 2814 Emmons Avenue premises and the lease.

Epshteyn, Dukach, Rozenberg, Zhabotinsky, and Paradise Garden, as tenants of the 2814 Emmons Avenue premises, failed to pay any rent under the lease from September 2010 through January 2011. Consequently, on or about January 14, 2011, Emmons Acquisition initiated a summary proceeding against them in the Civil Court, Kings County (2814-2824 Emmons Acquisition LLC v Rozenberg, Civil Ct, Kings County, index No. 53011/11) (the Civil Court action), seeking back rent due for these months and possession of the 2814 Emmons Avenue premises. Plaintiffs claim that in response to and in retaliation for the filing of the Civil Court action, Dukach and Chertok, on April 12, 2011, filed an action, as plaintiffs, against them and numerous other [*2]individuals and corporate entities as defendants (Dukach v Borokhovich, Sup Ct, Nassau County, index No. 005438/2011 (the Nassau County action). In their complaint in the Nassau County action, Dukach and Chertok alleged claims of common-law fraud and violations of the federal civil RICO statute (18 USC § 1962) with the predicate act of mail fraud as against all of the defendants, including plaintiffs, and sought compensatory and punitive damages and a declaration that the lease was null and void.

Plaintiffs claim that Dukach and Chertok, in the Nassau County action, alleged their involvement in, and placed them in the center of a wide-ranging and implausible criminal conspiracy to defraud and extort Dukach and the other tenants of the 2814 Emmons Avenue premises. Specifically, plaintiffs assert that Dukach and Chertok alleged that Maksin was the "mastermind" of a vast Russian criminal enterprise, which they referred to as the "Borokhovich Vor Enterprise," that engaged in multiple acts of fraud upon them and the other tenants from 2005 through 2011. They further assert that Dukach and Chertok alleged that Levin was an assistant of Maksin in his alleged criminal enterprise, and that Emmons Acquisition was a shell corporation created by Maksin and Levin to further their alleged fraudulent scheme.

Specifically, Dukach and Chertok's complaint in the Nassau County action (as amended) set forth that Maksim and a co-defendant, Gennady Borokhovich (Borokhovich), masterminded and operated an enterprise that engaged in complex schemes centered upon specific parcels of real estate and businesses associated with the real estate, including the restaurant/nightclub located at the 2814 Emmons Avenue premises, in order to defraud investors. The complaint alleged that Borokhovich and Maksin utilized a chain of alter ego shell companies/corporations to engage in sham transactions that furthered the schemes while disguising and concealing their identities, as the masterminds. The complaint further alleged that Dukach and Chertok were fraudulently induced to provide $200,000 for the right to lease the 2814 Emmons Avenue premises from Lavanda & Blues LLC, which was a shell entity that did not own these premises and had no authority to enter into the lease. The complaint claimed that Dukach and Chertok and other investors were bilked out of money through a constant barrage of threats in which they were told that if they did not provide additional funds, they would be kicked out of the business and lose their entire investments, and that they were ultimately forced to leave the business of Paradise Garden and the 2814 Emmons Avenue premises due to threats of violence after they had already invested over $600,000 into the business. The complaint additionally alleged that Dukach's signature was forged by members of the enterprise on estoppel certificates, which agreed to the assignment of the lease to NorthEast Community Bank in order to obtain a consolidated loan of $3.5 million dollars, and that the enterprise, through sham transactions, was able to abandon the mortgage obligations on the 2814 Emmons Avenue premises and retain ownership and control of these premises.

Dukach and Chertok additionally claimed that the Civil Court action to enforce the [*3]lease was a further attempt to bilk them out of more money. Dukach and Chertok asserted that the majority of the shell entities utilized in the sham transactions were created by Maksin, and that Maksin, with the assistance of Levin, engineered the sham transactions, and that there was a pervasive connection between Borokhovich, Maksin, and a host of shell entities and suspicious transactions.

According to plaintiffs, Dukach and Chertok had no personal knowledge or information and were aware of no facts regarding any involvement by them in any fraudulent scheme or criminal enterprise at the time that they caused the Nassau County action to be filed. They claim that it was Dukach and Chertok's intent to damage their reputation and cause them to incur legal fees in an effort to cause Emmons Acquisition to abandon the Civil Court action against Dukach, Epshteyn, Paradise Garden, and the other tenants.

At the time that Dukach and Chertok filed their initial complaint in the Nassau County action, they moved, by order to show cause, to have the Nassau County court remove the Civil Court action and consolidate it with that action pursuant to CPLR 602, or to have the Civil Court action stayed pending the resolution of the Nassau County action. The Nassau County court, however, denied that motion by an order dated July 11, 2011.

On August 12, 2011, Epshteyn and Paradise Garden, as plaintiffs, brought a parallel action against plaintiffs and the same numerous other individuals and corporate entities, as defendants, in the Supreme Court, Kings County (Epshteyn v Borokhovich, Sup Ct, Kings County index No. 018508/2011) (the Kings County action). The complaint in the Kings County action was virtually identical to Dukach and Chertok's complaint in the Nassau County action.

As Dukach and Chertok had done in the Nassau County action, Epshteyn and Paradise Garden, at the same time that they filed the Kings County action, moved, by order to show cause, in the Kings County action to have the Civil Court action removed and consolidated with that action pursuant to CPLR 602 or to have the Civil Court action stayed pending the resolution of the Kings County action. By an order dated August 16, 2011, the court, in the Kings County action, initially held the motion to consolidate in abeyance and granted a stay of enforcement of any judgment which might issue in the Civil Court action as against Epshteyn and Paradise Garden, which was conditioned on their paying use and occupancy as had been ordered by the Civil Court throughout 2011. This stay, however, was vacated by the court on October 4, 2011 after Epshteyn and Paradise Garden failed to pay use and occupancy.

On November 1, 2011, due to Epshteyn and Paradise Garden's failure to pay use and occupancy as ordered by the Civil Court, the Civil Court, in the Civil Court action, ordered that Emmons Acquisition would be granted a money judgment and a judgment of possession against Epshteyn and Paradise Garden unless they appeared at trial with proof of payment of use and occupancy for September 2011 and October 2011. At the time of [*4]trial, since Epshteyn and Paradise Garden did not appear with such proof of payment of use and occupancy, the Civil Court awarded Emmons Acquisition a judgment of possession and a money judgment against Epshteyn and Paradise Garden in the amount of $721,976.04.

A trial was held in the Civil Court action on November 3 and 9, 2011, regarding the defenses raised by Dukach. Counsel for Epshteyn and Paradise Garden was not permitted to participate in the trial. After the trial, the Civil Court issued an Order After Trial dated November 18, 2011, which granted a judgment of possession and a money judgment in the amount of $721,976.04 as against Dukach and the remaining tenant, Rozenberg.

On December 19, 2011, Civil Court Judge Nancy M. Bannon issued a Decision After Trial regarding Emmons Acquisition's petition for possession and a money judgment. She found that Emmons Acquisition had validly acquired title to the 2814 Emmons Avenue premises on September 13, 2010, that no rent had been paid since September 2010, that Dukach had failed to prove at trial that Emmons Acquisition lacked standing to bring the action because the lease had been procured by fraud in 2005, that Dukach and the other tenants, including Epshteyn and Paradise Garden, remained in possession of the 2814 Emmons Avenue premises, that Dukach failed to establish that Emmons Acquisition was aware of any fraud surrounding the lease when it purchased the 2814 Emmons Avenue premises or that it otherwise engaged in any wrongdoing, that Dukach accepted the benefit of the lease of the 2814 Emmons Avenue premises "by taking possession of the premises in 2005, and thereafter operating a successful business on the premises for nearly six years before attempting to raise the issue" of a fraudulent lease, and that Dukach was barred by the doctrine of laches from raising the issue of the potential fraudulent nature of the lease in 2005. Epshteyn, Dukach, Paradise Garden, and the other tenants appealed the Civil Court's orders as to them and moved for a stay of the execution of the judgment. While the Appellate Term considered this motion for a stay, it granted a temporary restraining order to prevent the eviction of the tenants.

Following a motion by plaintiffs to dismiss the Nassau County action as against them, Dukach and Chertok, by an amended complaint dated September 19, 2011, had added allegations of fraud and criminal activity as against Maksin, including additional allegations of RICO violations and predicate acts of extortion, and they further amended their complaint on December 27, 2011 to add further allegations of fraud and criminal activity. Epshteyn and Paradise Garden, by an amended complaint dated November 17, 2011, amended their complaint in the Kings County action to contain the same allegations as Dukach and Chertok's first amended complaint. In early 2012, plaintiffs moved to dismiss Epshteyn and Paradise Garden's first amended complaint in the Kings County action and discovery proceeded during the pendency of that motion.

In March 2012, plaintiffs and the other defendants moved to dismiss the Nassau County action and the Kings County action. Discovery proceeded in the Nassau County [*5]action during the pendency of plaintiffs' motion to dismiss and Dukach and Chertok were deposed in the Nassau County action on March 6 and 15, 2012, respectively. At their depositions, Dukach and Chertok both admitted that they did not have any information that Maksin was a "Vor" or "mastermind" of a criminal enterprise, as alleged in their complaint. Dukach testified that she had never met Maksin, that she had no personal knowledge of the allegations made against Maksin or Levin, and that she based her complaint only upon research done by her attorney. Chertok also admitted that he had no personal knowledge that Maksin was a "Vor" or "mastermind" of a criminal enterprise as alleged in the complaint, and that he did not know Maksin and Levin.

On March 9, 2012, the Appellate Term denied Dukach and the other tenants' motion for a stay of the execution of the judgment of the Civil Court and lifted the temporary restraint against their eviction and the execution of the judgment in the Civil Court action against them. Emmons Acquisition immediately began moving forward with the eviction of the tenants from the 2814 Emmons Avenue premises, but found that the tenants had already vacated the premises. To date, Dukach, Epshteyn, and Paradise Garden have not paid it any amount of the money judgment ordered by the Civil Court.

In mid-March 2012, the attorney for Dukach and Chertok in the Nassau County action withdrew as their attorney of record, and Dukach and Chertok informed plaintiffs that they no longer wished to pursue the Nassau County action. By a stipulation dated May 16, 2012,^[FN1] Dukach, Chertok and plaintiffs stipulated and agreed that Dukach and Chertok's complaint in the Nassau County action was discontinued with prejudice, and plaintiffs expressly reserved their right to bring an action for malicious prosecution or for sanctions.

Thereafter, the attorneys for Epshteyn and Paradise Garden ceased prosecuting the Kings County action. According to plaintiffs, at a hearing on July 30, 2012, an attorney for Epshteyn and Paradise Garden admitted on the record at oral argument that he and his clients never had any direct or personal information regarding the involvement of any of the defendants named in that action in any criminal enterprise or conspiracy. By an order dated July 30, 2012, the court in the Kings County action dismissed Epshteyn and Paradise Garden's action, with prejudice, after Epshteyn and Paradise Garden failed to file any written opposition to plaintiffs' motion to dismiss for failure to state a claim.

On November 15, 2012, plaintiffs filed this action against Epshteyn,^[FN2] Paradise Garden, and Chertok, seeking to recover compensatory damages. Dukach was not named [*6]in the original complaint due to her filing for Chapter 7 bankruptcy protection on the afternoon of May 16, 2012 (immediately after the stipulation of discontinuance was signed), which, pursuant to 11 USC § 362 (a), resulted in an automatic stay being in effect. On August 22, 2012, the United States Bankruptcy Court for the Eastern District of New York had issued an order discharging Dukach's debt and Emmons Acquisition's judgment against Dukach from the Civil Court was discharged through the bankruptcy proceeding. On January 31, 2013, the Bankruptcy Court lifted the automatic stay to allow plaintiffs to add Dukach to this action and to seek a judgment against her in this action. On March 11, 2013, plaintiffs amended their complaint as of right, pursuant to CPLR 3025 (a), adding Dukach as a defendant, pursuant to CPLR 1003. Plaintiffs' amended complaint asserts two causes of action against defendants. Plaintiffs' first cause of action purports to allege a claim for defamation, and their second cause of action purports to allege a claim for malicious prosecution.

On August 7, 2013, Dukach and Chertok e-filed this motion to dismiss^[FN3] plaintiffs' amended complaint as against them and Paradise Garden.^[FN4] Oral argument of Dukach and Chertok's motion was held on November 18, 2013.

Dukach and Chertok, in support of their motion, contend that plaintiffs' amended complaint, which alleges defamation and malicious prosecution claims stemming from the contents of the complaint in the Nassau County action and the two subsequent amendments of that complaint, must be dismissed as legally deficient.^[FN5] They argue that [*7]the defamation claim cannot be maintained because their allegations in their complaint and amended complaints in the Nassau County action were absolutely privileged. They further argue that the malicious prosecution claim cannot be maintained because plaintiffs did not allege any special damage or injury sufficient to sustain a claim for malicious prosecution.

Dukach and Chertok also assert that the allegations contained in their complaint and the amended complaints in the Nassau County action were not malicious, but, rather, were brought in good faith by them based upon probable cause. In an attempt to support this assertion, they have submitted numerous exhibits, which, they claim, constitute documentary evidence obtained from investigation and from plaintiffs.

In addressing Dukach and Chertok's arguments, it is noted that as to plaintiffs' claim for defamation, "[t]he elements [of a defamation claim] are 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" (Dillon v City of New York, 261 AD2d 34, 38 [1st Dept 1999]). Plaintiffs assert that they have pleaded the first element by alleging that the three complaints in the Nassau County action each contained numerous false and injurious statements of fact concerning their status as members and/or masterminds of a criminal enterprise and allegations of participation in fraud and extortion. Plaintiffs further assert that they have pleaded the third element by alleging, in their amended complaint, that defendants knew that their statements as to their criminal activity were false when made, which constitutes fault by, at least, a negligence standard.

As to the fourth element, plaintiffs assert that Dukach and Chertok's allegations of criminal conduct constituted defamation per se, and that they have pleaded special harm by alleging that these defamatory statements caused them significant injury to their reputation in their community and lost business opportunities and business. Plaintiffs point to their allegations in their amended complaint that Dukach and Chertok, in the Nassau County action, had alleged their involvement in, and placed them in the center of a wide-ranging and implausible criminal conspiracy to defraud and extort Dukach and the other tenants of the 2814 Emmons Avenue premises. Plaintiffs claim that Dukach and Chertok have stated that they were "members of the mob" which constitutes defamation per se.

In this regard, the court observes that generally referring to an affiliation with organized crime does not constitute defamation per se (see Galasso v Saltzman, 42 AD3d 310, 311 [1st Dept 2007]). Indeed, it has been held that "because association with or membership in an organization having a criminal purpose is not an indictable offense, it is [*8]not defamatory per se to charge a person with being a member of the Mafia . . . or to have criminal associations" (Huffine v The South Shore Press, 2012 WL 420826, 2012 NY Slip Op 30169[U] [Sup Ct, Suffolk County 2012], citing Privitera v Town of Phelps, 79 AD2d 1, 5 [4th Dept 1981]). The court notes, though, upon a perusal of the second amended complaint in the Nassau County action, that Dukach and Chertok had alleged that plaintiffs, among others, "committed various acts of money laundering" and acts which "constitute indictable offenses." "A false statement constitutes defamation per se when it charges another with a serious crime" (Matter of Konig v CSC Holdings, LLC, 112 AD3d 934, 935 [2d Dept 2013] [internal quotation marks omitted]).

However, regardless of the issue of whether the alleged defamatory statements constitute defamation per se, plaintiffs have failed to satisfy the second element of "publication without privilege." It is well established that "[s]tatements made by parties, attorneys, and witnesses in the course of a judicial or quasi-judicial proceeding are absolutely privileged, notwithstanding the motive with which they are made, so long as they are material and pertinent to the issue to be resolved in the proceeding" (Kilkenny v Law Off. of Cushner & Garvey, LLP, 76 AD3d 512, 513 [2d Dept 2010] see also Toker v Pollak, 44 NY2d 211, 219 [1978] Martirano v Frost, 25 NY2d 505, 507 [1969] Wiener v Weintraub, 22 NY2d 330, 332 [1968] Cullin v Lynch, 113 AD3d 586, 586 [2d Dept 2014] Sklover v Sack, 102 AD3d 855, 856 [2d Dept 2013] Wilson v Erra, 94 AD3d 756, 756-757 [2d Dept 2012] Matter of Gaeta v Incorporated Vil. of Garden City, 72 AD3d 683, 684 [2d Dept 2010], lv denied 15 NY3d 711 [2010] Rabiea v Stein, 69 AD3d 700, 700 [2d Dept 2010] Rufeh v Schwartz, 50 AD3d 1002, 1004 [2d Dept 2008] Sexter & Warmflash, P.C. v Margrabe, 38 AD3d 163, 171 [1st Dept 2007] Sinrod v Stone, 20 AD3d 560, 561 [2d Dept 2005]). Thus, " [i]n the context of a legal proceeding, statements made by parties and their attorneys in the context of litigation are absolutely privileged if, by any view or under any circumstances, they are pertinent to the litigation'" (Frechtman v Gutterman, 2014 NY Slip Op 00437 [1st Dept 2014], quoting Grasso v Mathew, 164 AD2d 476, 479 [3d Dept 1991], appeal dismissed 77 NY2d 940 [1991], appeal denied 78 NY2d 855 [1991]).

Plaintiffs argue that the alleged defamatory statements by Dukach and Chertok in their complaints in the Nassau County regarding criminal activity by them were not pertinent to Dukach and Chertok's claims in that action. However, "[w]hether a statement is at all pertinent to the litigation . . . is determined by an extremely liberal test (Sexter & Warmflash, P.C., 38 AD3d at 173 [internal quotation marks and citations omitted] see also Black v Green Harbour Homeowners' Assn., Inc., 19 AD3d 962, 963 [3d Dept 2005] Mosesson v Jacob D. Fuchsberg Law Firm, 257 AD2d 381, 382 [1st Dept 1999], lv denied 93 NY2d 808 [1999]). A statement made in the course of judicial proceedings is privileged "if, by any view or under any circumstances, it may be considered pertinent to the litigation" (Martirano, 25 NY2d at 507; see also Sexter & Warmflash, P.C., 38 AD3d at 173; Lacher v Engel, 33 AD3d 10, 14 [1st Dept 2006] Fabrizio v Spencer, 248 [*9]AD2d 351, 351 [2d Dept 1998]).

"In considering whether a particular statement is "pertinent" and, by that token, privileged, [the court is] not limited . . . to the narrow and technical rules normally applied to determine the admissibility of evidence" (Martirano, 25 NY2d at 508). "To be actionable, a statement made in the course of judicial proceedings must be so outrageously out of context as to permit one to conclude, from the mere fact that the statement was uttered, that it was motivated by no other desire than to defame'" (Sexter & Warmflash, P.C., 38 AD3d at 173, quoting Martirano, 25 NY2d at 508; see also Cavallaro v Pozzi, 28 AD3d 1075, 1077 [4th Dept 2006] Grasso, 164 AD2d at 479). "Stated otherwise, the possibly pertinent [for purposes of the judicial proceedings privilege] need be neither relevant nor material to the threshold degree required in other areas of the law,' and the barest rationality, divorced from any palpable or pragmatic degree of probability, suffices' to establish the offending statement's pertinence to the litigation" (Sexter & Warmflash, P.C., 38 AD3d at 173, quoting Seltzer v Fields, 20 AD2d 60, 62 [1st Dept 1963], affd 14 NY2d 624 [1964] see also Mosesson, 257 AD2d at 382; Grasso, 164 AD2d at 479).

"The pertinence of a statement made in the course of judicial proceedings is a question of law for the court" (Sexter & Warmflash, P.C., 38 AD3d at 173; see also People ex rel. Bensky v Warden of City Prison, 258 NY 55, 60 [1932] Mosesson, 257 AD2d at 382; Grasso, 164 AD2d at 479). "In answering that question, any doubts are to be resolved in favor of pertinence" (Sexter & Warmflash, P.C., 38 AD3d at 173; see also Mosesson, 257 AD2d at 382; Baratta v Hubbard, 136 AD2d 467, 469 [1st Dept 1988]). "Pertinence is properly determinable on a motion to dismiss addressed to the pleadings and documentary evidence alone" (Sexter & Warmflash, P.C., 38 AD3d at 173). Here, the allegations by Dukach and Chertok in the Nassau County action were not so outrageously out of context so as to lack pertinence to their claims of a fraudulent scheme and RICO violations in that action.

Plaintiffs argue, however, that their amended complaint contains sufficient allegations of malice on the part of Dukach and Chertok to withstand the dismissal of their defamation cause of action. Plaintiffs rely upon the holding in Park Knoll Assoc. v Schmidt (59 NY2d 205, 211 [1983]) that "[t]he complaint [t]here[in] contain[ed] sufficient allegations of malice to withstand the motion to dismiss," and contend that since both Dukach and Chertok had no personal knowledge of the alleged defamatory statements made in the complaints in the Nassau County action, the court should infer, at this point in the litigation, that these alleged defamatory statements were made with express malice so as to enable them to withstand Dukach and Chertok's motion to dismiss.

Plaintiffs' reliance upon Park Knoll Assoc. (59 NY2d at 211), however, is misplaced since that case involved alleged defamatory statements which were not absolutely privileged because they were made in quasi-judicial proceedings before the State Division of Housing and Community Renewal and the defendant therein, who was [*10]neither an attorney, a party nor a witness in the proceedings, did not enjoy absolute immunity from liability for defamation. Thus, since only a qualified privilege applied, the plaintiff therein was required to prove that the defendant acted out of malice in order to sustain its cause of action (id.). Here, in contrast, an absolute privilege applies since the alleged defamatory statements were made in the context of a judicial action.

Plaintiffs, at oral argument, further cited the case of Halperin v Salvan (117 AD2d 544, 548 [1st Dept 1986], in which the Appellate Division, First Department, in explaining the relevant guidelines in determining whether the privilege has been abused and its protection lost, quoted the language in Youmans v Smith (153 NY 214, 220 [1897]) that "[i]f counsel through an excess of zeal to serve their clients, or in order to gratify their own vindictive feelings, go beyond the bounds of reason and by main force bring into a lawsuit matters so obviously impertinent as not to admit of discussion, and so needlessly defamatory as to warrant the inference of express malice, they lose their privilege and must take the consequences." However, even where there is malice, "[m]alice and bad faith simply do not destroy the privilege if the statements meet the minimal standard for pertinence" (Pandozy v Tobey, 2007 WL 3010333,*1 [SD NY Oct 11, 2007], affd 335 Fed Appx 89 [2d Cir 2009]).

"[T]he judicial proceedings privilege is extended to pertinent statements made in the course of litigation no matter how great the personal malice of the writer'" (Sexter & Warmflash, P.C., 38 AD3d at 172, quoting Pecue v West, 233 NY 316, 319 [1922]). The only limitation on the otherwise absolute nature of the privilege is abuse, and "[t]he sole criterion of whether such abuse has occurred is the pertinence of the statement to the proceedings" (Sexter & Warmflash, P.C., 38 AD3d at 172). "[A]n offending statement pertinent to the proceeding in which it was made is absolutely privileged, regardless of any malice, bad faith, recklessness or lack of due care with which it was spoken or written, and regardless of its truth or falsity" (id.).

Thus, since the alleged defamatory statements were pertinent to Dukach and Chertok's allegations in their complaint and amended complaints of a fraudulent scheme in the Nassau County action and the statements were made by them, as parties in a pending judicial proceeding, they were protected by an absolute privilege (see Cullin, 113 AD3d at 586; Sklover, 102 AD3d at 856; Rabiea, 69 AD3d at 700; Rufeh, 50 AD3d at 1004; Sinrod, 20 AD3d at 561). Therefore, plaintiffs' first cause of action for defamation fails to state a cause of action and must be dismissed (see CPLR 3211 [a] [7] Cullin, 113 AD3d at 586; Rabiea, 69 AD3d at 700; Rufeh, 50 AD3d at 1004).

In turning to plaintiffs' second cause of action for malicious prosecution, it is noted that "[t]he 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" (Castro v East End Plastic, Reconstructive & Hand Surgery, P.C., 47 AD3d 608, 609 [2d Dept 2008] see also Engel v CBS, Inc., 93 [*11]NY2d 195, 201 [1999] Colon v City of New York, 60 NY2d 78, 82 [1983], rearg denied 61 NY2d 670 [1983] Martin v City of Albany, 42 NY2d 13, 16 [1977] Thyroff v Nationwide Mut. Ins. Co., 57 AD3d 1433, 1435 [4th Dept 2008], rearg denied 60 AD3d 1439 [4th Dept 2009], appeal dismissed 12 NY3d 911 [2009], lv denied 13 NY3d 710 [2009] Broughton v State of New York, 37 NY2d 451, 457 [1975], cert denied sub nom. Schanbarger v Kellogg, 423 US 929 [1975] Wilhelmina Models, Inc. v Fleisher, 19 AD3d 267, 269 [1st Dept 2005] Hornstein v Wolf, 109 AD2d 129, 132 [2d Dept 1985], affd 67 NY2d 721 [1986] Molinoff v Sassower, 99 AD2d 528, 529 [2d Dept 1984]). Dukach and Chertok do not dispute that they commenced a civil action against plaintiffs which terminated in favor of plaintiffs, but contend that it was not without probable cause, that there was no malice, and that there was no special injury.

As to the requirement that the plaintiff must allege and prove "special injury," it has been held that "[t]he mere bringing of a civil suit, even if groundless and ill motivated, does not result in special damage or injury sufficient to sustain an action for malicious prosecution" (Hornstein, 109 AD2d at 132). To show special injury, "the defendant must abide some concrete harm that is considerably more cumbersome than the physical, psychological or financial demands of defending a lawsuit" (Engel, 93 NY2d at 305; see also Wilhelmina Models, Inc., 19 AD3d at 269). A plaintiff is required to allege interference with his or her person or property because of resort to a provisional remedy, such as arrest, attachment, injunction, receivership, or notice of pendency, or something substantially equivalent to the provisional remedy effect (see Engel, 93 NY2d at 205; Muro-Light v Farley, 95 AD3d 846, 846-847 [2d Dept 2012] Dermigny v Siebert, 79 AD3d 460, 460 [1st Dept 2010] Greco v Christoffersen, 70 AD3d 769, 770 [2d Dept 2010] Shatkin v Drescher, 24 AD3d 1292, 1293 [4th Dept 2005] Wilhelmina Models, Inc., 19 AD3d at 269; Griffin v Tedaldi, 228 AD2d 554, 555 [2d Dept 1996] Jurow v Brickman House, 159 AD2d 562, 562-563 [2d Dept 1990] Molinoff, 99 AD2d at 529; Clark v MacKay, 97 AD2d 394, 395 [2d Dept 1983] Ellman v McCarty, 70 AD2d 150, 155 [2d Dept 1979]).

Plaintiffs contend that Dukach and Chertok subjected Emmons Acquisition to a provisional remedy, which precluded it from exercising its property rights to gain possession of and receive rent for the premises, because the Supreme Court, Kings County, in the Kings County action, by an order dated August 16, 2011, initially held the motion to consolidate in abeyance and granted a stay of enforcement of any judgment which might issue in the Civil Court action. This contention is devoid of merit. Dukach and Chertok did not bring the Kings County action and were not parties to it. Furthermore, the stay granted by the Supreme Court, Kings County, by its order dated August 16, 2011 (as discussed above) only stayed enforcement of any judgment which might issue in the Civil Court action as against Epshteyn and Paradise Garden, and this order was vacated on October 4, 2011 after Epshteyn and Paradise Garden failed to pay use and occupancy. It did not pertain to any judgment which might be issued as against [*12]Dukach. Moreover, no judgment was issued by the Civil Court during this time period and, therefore, no restraint or interference with plaintiffs' property actually took place as a result of the court's order in the Kings County action.

The only temporary restraint with respect to Dukach occurred when Epshteyn, Dukach, Paradise Garden, and the other tenants appealed the Civil Court's orders as to them and moved for a stay of the execution of the December 2011 judgment, and the Appellate Term, while it considered this motion for a stay, granted a temporary restraining order to prevent the eviction of the tenants. As noted above, on March 9, 2012, the Appellate Term denied Dukach and the other tenants' motion for a stay of the execution of the judgment of the Civil Court and lifted the temporary restraint against their eviction and the execution of the judgment in the Civil Court action against them. This temporary restraining order with respect to Dukach, however, was the result of an appeal of the Civil Court's decision and did not pertain to the Nassau County action. Therefore, it cannot satisfy the requirement of showing the imposition of a provisional remedy so as to sustain plaintiffs' claim for malicious prosecution.

While Dukach and Chertok attempted to remove and consolidate the Civil Court action, and sought to have the Civil Court action stayed pending the resolution of the Nassau County action, the Nassau County court (as set forth above) denied that motion by an order dated July 11, 2011. Thus, there is no showing that Dukach or Chertok, in the Nassau County action, interfered with the person or property of plaintiffs in any way.

There was also no other "highly substantial and identifiable interference" with the person or property of plaintiffs (see Engel, 93 NY2d at 205). While plaintiffs assert that they have alleged, in their second cause of action for malicious prosecution, that they have sustained damage to their reputation, significant monetary loss, and significant loss of business opportunities and business, these general and conclusory allegations are insufficient to allege the required "special damages" in order to sustain plaintiffs' malicious prosecution claim (see Id. at 207).

Consequently, since plaintiffs have failed to allege interference with their persons or property because of resort to a provisional remedy, such as arrest, attachment, injunction, receivership, or notice of pendency or anything substantially equivalent to the provisional remedy effect, they have failed to state a viable cause of action for malicious prosecution (see Engel, 93 NY2d at 205; Muro-Light, 95 AD3d at 846-847; Dermigny, 79 AD3d at 460; Greco, 70 AD3d at 770; Shatkin, 24 AD3d at 1293; Griffin, 228 AD2d at 555; Jurow, 159 AD2d at 562-563; Molinoff, 99 AD2d at 529; Clark, 97 AD2d at 395; Ellman, 70 AD2d at 155). Dismissal of plaintiffs' second cause of action for malicious prosecution must, therefore, be granted (see CPLR 3211 [a] [7]).

Accordingly, Dukach and Chertok's motion to dismiss plaintiffs' amended complaint as against them is granted.

This constitutes the decision and order of the court. [*13]

E N T E R,

J. S. C.