Recitation in accordance with CPLR 2219 (a) of the papers considered on the joint motion of defendants Scott Reback (hereinafter Reback) and Titan Motor Group, LLC (hereinafter Titan) (collectively the moving defendants), filed on December 16, 2019, under motion sequence one, for an order dismissing the complaint of Paul Aguilar (hereinafter plaintiff or Aguilar) pursuant to CPLR 3211(a) (5) and (7) and 3016 (a).

The moving defendants' motion papers consist of notice of motion, an affirmation of counsel, an affidavit of Reback, a memorandum of law, and six exhibits labeled 1 through 6. Exhibit 1 is a copy of the complaint filed by the plaintiff with the Kings County Clerk's office (KCCO) on December 11, 2018 under Index No. 524833/2018 (hereinafter the prior action). Exhibit 2 is a copy of the Decision and Order of this Court dated April 11, 2019 which dismissed the prior action (hereinafter the prior order). Exhibit 3 is a copy of the instant complaint which was filed with the KCCO on October 9, 2019. Exhibit 4 and 5 are described as Return of Service documents issued by OJF Services, Inc. Exhibit 6 is described as a Notice of Judgment dated March 4, 2019 issued under Index No. S.C.R. 780/2018 in the matter of Aguilar v Nissan of Staten Island.

Plaintiff's opposition papers consist of a memorandum of law, an affirmation of plaintiff's counsel and Aguilar's affidavit. The affirmation of plaintiff's counsel has annexed one document labeled exhibit A. Exhibit A is described as an email cover letter and a copy of the instant summons and complaint which plaintiff's counsel sent to defendants' counsel. Aguilar's affidavit references four annexed exhibits labeled A through D. Exhibit A is described as a text message that Aguilar received from Reback. [*2]Exhibit B is described as text message exchange between Aguilar and a representative of Porsche Greenwich. Exhibit C is described as the Business Manager Pay Plan sent by Porsche Greenwich to Aguilar and setting forth the manner that he was to be compensated. Exhibit D is described as a letter sent by the unemployment division of the New York State Department of Labor to Aguilar.

The defendants' reply to Aguilar's opposition papers consists of a memorandum of law, Reback's affidavit and two annexed exhibits labeled 1 and 2. Exhibit 1 is described as a chain of text messages between Reback and Aguilar that occurred on January 30, 2018. Exhibit 2 is described as a chain of text messages between Reback and Aguilar that occurred on January 11, 2018.

On October 9, 2019, Aguilar commenced the instant action by filing a summons and complaint with the KCCO (hereinafter the commencement papers). The complaint alleges one hundred and seven numbered statements or allegations of fact in support of eight causes of action.

The first cause of action is for defamation asserted against Titan. The claim alleges that in December of 2017, while Aguilar was employed as the finance director of Titan's Nissan of Staten Island location, Michael Belcuore, the general manager and Aguilar's supervisor, uttered in front of other employees the false statement that Aguilar had stolen a car.

The second cause of action is for tortious interference and the third is for defamation asserted against Titan and Reback, Titan's owner. These two claims are premised on the allegation that Reback knew that Aguilar obtained a job offer from Mercedes Benz. On January 11, 2018, Reback allegedly lied to Mercedes Benz about Aguilar stealing a car and convinced Mercedes Benz to rescind its employment offer.

The fourth cause of action is for tortious interference and the fifth is for defamation asserted against Titan and Reback. These claims are premised on the allegation that Reback knew that Aguilar obtained a job offer from Chrysler Dodge Jeep Ram Fiat of Bay Ridge (hereinafter Chrysler). On January 30, 2018, Reback allegedly lied to Chrysler about Aguilar stealing a car and convinced Chrysler to rescind its employment offer.

The sixth cause of action is for tortious interference and the seventh is for defamation asserted against Titan and Reback. These claims are premised on the allegation that Reback knew that Aguilar obtained a job offer from Porsche Greenwich (hereinafter Porsche). On September 13, 2018, Reback allegedly lied to Porsche about Aguilar stealing a car and convinced Porsche to rescind its employment offer.

The eighth cause of action is asserted against Titan and Reback for retaliation in violation of New York Labor Law § 215. The claim is premised on the allegation that Aguilar was engaged in protected activity when he filed a lawsuit in May of 2018 against Titan for unpaid commissions. In violation of New York Labor Law § 215 Titan and Reback allegedly retaliated against him by telling potential employers not to hire him.

The complaint alleges the following salient facts among others. From 2013 to December 13, 2017, Aguilar was employed by Titan. Reback is the owner of Titan. From 2013 to 2015, he worked as a finance manager at Titan's Nissan of Queens location. From 2015 until December 13, 2017, he worked as a finance director at Nissan of Staten Island's location. As part of his employment agreement he earned a commission for each financing agreement he arranged for a customer. On or about August 2017, Titan hired Michael Belcuore (hereinafter Belcuore) as a general manager of Nissan of Staten Island. After he was hired, Belcuore expressed surprise and annoyance at the amount of commissions that Aguilar was earning.

In November of 2017, Aguilar purchased a used vehicle from Titan for $ 6,000.00 after negotiating the price with Belcuore. On December 13, 2017, Aguilar alleges that Belcuore falsely claimed, "I did not authorize you to buy this car," in the presence of Vaishali Patel (hereinafter Patel), the Controller of Titan's Staten Island location. In rebuttal, Aguilar contacted one of the sales managers to confirm to Patel that Belcuore had negotiated and agreed on the purchase price that Aguilar paid.Belcuore continued to falsely accuse Aguilar of stealing the car. Nevertheless, Titan took back the car that Aguilar had purchased and returned the purchase money to him.

Aguilar alleges that Titan terminated him to avoid paying him the commissions he earned pursuant to his contract. Aguilar alleges that prior to Belcuore's false accusations he interviewed and intended to hire a new finance manager, who previously worked with him, at a lower salary rate. Within two days of Aguilar's termination, this new finance manager replaced him.

In January 2018, Aguilar interviewed for and was offered employment at Mercedes-Benz of Brooklyn. Mercedes-Benz of Brooklyn failed to schedule a meeting to finalize his employment and rescinded their offer. He later learned that Reback called Mercedes-Benz of Brooklyn and falsely reported that Aguilar stole a car from Titan. Later in January of 2018, Aguilar interviewed at Chrysler in Brooklyn. Aguilar alleges that the general manager told him he would call with a start date. Shortly after the interview, Aguilar received a text message from Reback stating "How's Chyrsler? I am watching you at all times." Chrysler never called Aguilar back and Aguilar believed that it was because Reback convinced the general manager not to hire him on the pretenses of false information. Aguilar further alleges that the defendants falsely reported to the New York Unemployment Benefits Office that he was fired for stealing a car.

In May of 2018, Aguilar filed a lawsuit against Titan for unpaid contractual commissions. He alleges that due to this lawsuit, Titan and Reback retaliated against him by telling potential employers not to hire him in violation of New York Labor Law § 215.

In September of 2018, Aguilar received a referral for potential employment at another car dealership, Porsche in Greenwich, Connecticut. After the interview, Aguilar alleges that the general manager had intentions of hiring him right away. However, the week before Aguilar was supposed to start, the general manager of Porsche rescinded his offer. Aguilar believes that the Porsche general manager contacted the defendants as they [*3]were listed on his resume. Consequently, when Reback allegedly found out about his potential employment he convinced the general manager to not hire him by not only falsely claiming that Aguilar stole a car, but also revealing that Aguilar had sued Titan.

By the instant motion, the moving defendants seek dismissal of Aguilar's causes of action for tortious interference, defamation and unlawful retaliation in violation of New York Labor Law § 215 pursuant to CPLR 3211 (a) (5) and (7) and 3016 (a). They seek dismissal of the first, third, fifth and seventh causes of action for defamation pursuant to CPLR 3211 (a) (5) on the basis that they are untimely and, pursuant to CPLR 3016 (a), on the basis that the allegation of fact does not satisfy the enhanced pleading requirements for a claim of defamation. They seek also dismissal of the entire complaint pursuant to 3211 (a) (7) on the basis that the complaint fails to state a cause of action.

On a motion to dismiss a cause of action pursuant to CPLR 3211 (a) (5) on statute of limitations grounds, the movant bears the initial burden of establishing, prima facie, that the time in which to sue has expired (Silver v Silver, 162 AD3d 937, 938-39 [2nd Dept 2018] quoting Cataldo v Herrmann, 154 AD3d 641, 642 [2nd Dept 2017]). In this regard, the movant must establish, inter alia, when the cause of action accrued (Matter of Asch, 164 AD3d 787, 788 [2nd Dept 2018], citing Rodeo Family Enters., LLC v Matte, 99 AD3d 781, 783—784 [2nd Dept 2012]). If the movant satisfies this burden, the burden shifts to the opponent to raise a question of fact as to whether the statute of limitations was tolled or otherwise inapplicable, or whether the plaintiff actually commenced the action within the applicable limitations period (U.S. Bank Nat'l Ass'n v. Gordon, 158 AD3d 832, 835 [2nd Dept 2018]).

In considering a motion to dismiss a cause of action on the ground that it is barred by the statute of limitations, a court must take the allegations in the complaint as true and resolve all inferences in favor of the plaintiff (Silver, 162 AD3d at 939).

A cause of action alleging defamation is governed by a one-year statute of limitations and accrues when the allegedly defamatory statements are originally uttered (see CPLR 215 [3]; Arvanitakis v Lester, 145 AD3d 650, 651 [2nd Dept 2016]).

The first cause of action is for a defamatory statement allegedly uttered sometime in December of 2017. The third cause of action is for a defamatory statement allegedly uttered on January 11, 2018. The fifth cause of action is for a defamatory statement allegedly uttered on January 30, 2018. The seventh cause of action is for a defamatory statement allegedly uttered on September 13, 2018.

The plaintiff did not commence the instant action until October 9, 2019, more than one year after each of the defamatory statements were allegedly uttered. By these facts alone, the moving defendants have established, prima facie, that the plaintiff's causes of action to recover damages for defamation are time-barred by the one-year statute of limitations for intentional torts (see CPLR 215[3]; Silver, 162 AD3d at 939).

In opposition, the plaintiff contends that the causes of action for defamation were [*4]timely commenced under the six-month savings provision of CPLR 205 (a). On December 11, 2018, the plaintiff commenced the prior action against the same defendants. The prior action plead three causes of action. The first was for tortious interference, the second was for defamation, and the third was for violation of New York State Labor Law § 215. The defamation claim was premised on the same statements allegedly made by the defendants in December 2017 and in January 2018 which are alleged in the instant complaint. By Decision and Order dated April 11, 2019 this Court dismissed the prior action. The Court dismissed the defamation cause of action for, among other things, failing to state the specific words composing the defamatory statement.With respect to the plaintiff's claims predicated upon defamatory statements uttered in December 2017 and January 2018, it is undisputed that the applicable statute of limitations periods had expired, and those claims could only survive the defendants' timeliness challenge if the instant action had been commenced within the six-month tolling period provided for in CPLR 205 (a).

CPLR 205 (a) provides, in part, that if an action is timely commenced and is terminated in any other manner than by a voluntary discontinuance, a failure to obtain personal jurisdiction over the defendant, a dismissal of the complaint for neglect to prosecute the action, or a final judgment upon the merits, the plaintiff ... may commence a new action upon the same transaction or occurrence or series of transactions or occurrences within six months after the termination provided that the new action would have been timely commenced at the time of commencement of the prior action and that service upon defendant is effected within such six-month period (Goodman v Skanska USA Civil, Inc., 169 AD3d 1010, 1011 [2nd Dept 2019]).

For all actions generally, CPLR 205 (a) extends the time to commence an action after the termination of an earlier related action, where both actions involve the same transaction or occurrence or series of transactions or occurrences. The statute is not technically a "toll," as it does not stop the underlying statute of limitations from running, but is instead a six-month "extension" of the time for commencing the new action when its qualifying circumstances are present (see Sokoloff v Schor, 176 AD3d 120, 126—27 [2nd Dept 2019]).

An action is deemed terminated from the date of the Court's order of dismissal and not from the date of entry or the date of notice of the entry of the judgment (see Burns v Pace Univ., 25 AD3d 334 [1st Dept 2006]). The entry of a subsequent judgment is a mere ministerial act (Burns at 334). Here, the prior action was terminated on April 11, 2019, the date the order dismissing the prior action was issued (see CPLR 205 [a]; Andrea v Arnone, Hedin, Casker, Kennedy & Drake, Architects & Landscape Architects, P.C. [Habiterra Assoc.], 5 NY3d 514, 519 [2005]). In accordance with CPLR 205 (a), the plaintiff had until October 11, 2019, six months after the termination date, to commence and serve the defendants with the instant action.

On October 9, 2019, Aguilar filed the instant summons and complaint with the KCCO. Under CPLR 304 (a) an action in Supreme Court is ordinarily commenced by [*5]filing a summons and complaint or summons with notice (DiSilvio v Romanelli, 150 AD3d 1078, 1079 [2nd Dept 2017]). Aguilar, however, was also required to complete service of the commencement papers on the defendants by October 11, 2019 (see Fischer v City of New York, 147 AD3d 1030, 1031 [2nd Dept 2017]).

Aguilar electronically filed two documents denominated as Return of Service documents which were purported to be proof of service of the commencement papers on Titan and Reback. Both documents stated that each of the defendants were served on October 25, 2019. The document pertaining to service on Reback alleged substitute service of the commencement papers on Reback by service upon Jamal Dennison, a sales manager, on October 25, 2019. The document pertaining to service on Titan alleged service of the commencement papers on Titan on October 25, 2019 by service upon Jamal Dennison, a sales manager.

The moving defendants do not dispute Aguilar's representation that the commencement papers were served on Titan and Reback on October 25, 2019. The Court, therefore, accepts October 25, 2019 as the date the commencement papers were served on the moving defendants without regard to the propriety of the manner or method of service. Although Aguilar commenced the instant action within the six-month period set forth in CPLR 205 (a), he did not complete service of the commencement papers on the defendants by October 11, 2019. Accordingly, the first, third, fifth and seventh causes of action for defamation are dismissed pursuant to CPLR 3211 (a) (5) as untimely. In light of the foregoing, the moving defendants' motion to dismiss the defamation claims pursuant to CPLR 3211 (a) (7) and 3016 (a) are rendered academic.

On a motion to dismiss a cause of action pursuant to CPLR 3211(a) (7) the court must accept the facts as alleged in the complaint as true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory (see Yossef Kahlon, etc., et al., appellants, v Michael V. DeSantis, etc., et al., respondents., —-AD3d—-, 2020 NY Slip Op 02464 [2nd Dept 2020]). Unlike a summary judgement motion, a motion to dismiss requires the court to merely examine the adequacy of the pleadings (see Davis v Boeheim, 24 NY3d 262, 268 [2014]). The pertinent question is whether the plaintiff has a cause of action, not whether the plaintiff has stated one, and unless it has been shown that a material fact as claimed by the plaintiff to be one is not a fact at all and it cannot be said that a significant dispute exists regarding it, dismissal should not eventuate (Nero v Fiore, 165 AD3d 823, 824-25 [2nd Dept 2018]). A court may consider affidavits submitted by the plaintiff to remedy any defects in the complaint (see Doe v Ascend Charter Schools, 181 AD3d 648 [2nd Dept 2020] citing Leon v Martinez, 84 NY2d 83 [1994]).

The second, fourth and sixth causes of action allege that Titan and Reback tortiously interfered with Aguilar's business relationship with Mercedes Benz of Brooklyn, Chrysler and Porsche. To prevail on a claim for tortious interference with [*6]business relations in New York, a party must prove (1) that it had a business relationship with a third party; (2) that the defendant knew of that relationship and intentionally interfered with it; (3) that the defendant acted solely out of malice or used improper or illegal means that amounted to a crime or independent tort; and (4) that the defendant's interference caused injury to the relationship with the third party (Amaranth LLC v. J.P. Morgan Chase & Co., 71 AD3d 40, 47 [1st Dept 2009], citing Carvel Corp. v Noonan, 3 NY3d 182, 189 [2004]; NBT Bancorp v Fleet/Norstar Fin. Group, 87 NY2d 614 [1996]; Guard-Life Corp. v Parker Hardware Mfg. Corp., 50 NY2d 183 [1980]).

A claim for tortious interference with prospective business relations does not require a breach of an existing contract, but the party asserting the claim must meet a more culpable conduct standard (Law Offices of Ira H. Leibowitz v Landmark Ventures, Inc., 131 AD3d 583, 585 [2nd Dept 2015]).

This standard is met where the interference with prospective business relations was accomplished by wrongful means or where the offending party acted for the sole purpose of harming the other party (id.) Wrongful means include physical violence, fraud or misrepresentation, civil suits and criminal prosecutions, and some degree of economic pressure (Law Offices of Ira H. Leibowitz, 131 AD3d at 586, citing Guard-Life Corp., 50 NY2d at 191).

The complaint alleges, among other things, that after Mercedes Benz of Brooklyn, Chrysler and Porsche had made offers of employment to Aguilar, Reback falsely reported to each of them that Aguilar had stolen a car with the intent of foiling his prospective employment. It further alleges that the fallacious communications succeeded in causing him to lose each of the three offers of employment.

The Court finds that plaintiff has set forth sufficient allegations of an intentionally fallacious communication with the three aforementioned prospective employers to survive dismissal at this juncture (Freedman v Pearlman, 271 AD2d 301, 305 [1st Dept 2000]). Moreover, the malicious intent of the moving defendants may be reasonably inferred by the surrounding circumstances and nature of the communication. Also, a fallacious communication which prevents a third party from extending a relationship to the plaintiff satisfies the wrongful means element of the tort (see Perry v Estates of Byrd, 2014 WL 2998542, *3 n 6 [SDNY. July 3, 2014] citing Freedman, 271 AD2d at 305).

The moving defendants have submitted an affidavit by Reback wherein he denied communicating with the aforementioned prospective employers regarding Aguilar. Reback's affidavit, however, does not conclusively establish that the fallacious utterance did not occur. Rather, it merely raises an issue of fact and, therefore, dismissal should not eventuate (Stone v Bloomberg L.P., 163 AD3d 1028 [2nd Dept 2018]). The moving defendants' motion to dismiss the second, fourth and sixth causes of action for tortious interference with business relations pursuant to CPLR 3211 (a) (7) for failing to state a cause of action is denied.

Labor Law § 215 (1) (a) states in pertinent part as follows:

No employer or his or her agent, or the officer or agent of any corporation, partnership, or limited liability company, or any other person, shall discharge, threaten, penalize, or in any other manner discriminate or retaliate against any employee (i) because such employee has made a complaint to his or her employer, or to the commissioner or his or her authorized representative, or to the attorney general or any other person, that the employer has engaged in conduct that the employee, reasonably and in good faith, believes violates any provision of this chapter, or any order issued by the commissioner

To state a retaliation claim under Labor Law § 215, a plaintiff must adequately plead that while engaged in a protected activity as defined by Labor Law § 215 and while employed by the defendant, he or she made a complaint about the employer's violation of New York Labor Law and was terminated or otherwise penalized, discriminated against, or subjected to an adverse employment action as a result (Oram v SoulCycle LLC, 979 F Supp 2d 498, 508 [SDNY 2013]).

The moving defendants have correctly argued that in order to seek relief under Labor Law § 215, the plaintiff must demonstrate that he was engaged in a protected activity while employed by the defendants. The alleged protected activity in this instance occurred in May of 2018, when Aguilar commenced an action against Titan for his earned but allegedly unpaid commissions. Titan and Reback, however, terminated Aguilar on December 13, 2017, more than four months prior to the allegedly protected activity. Inasmuch as Aguilar was no longer employed by Titan and Reback when he was engaged in the protected activity, he does not have a claim for violation of Labor Law § 215 (see Day v. Summit Sec. Servs. Inc., 159 AD3d 549 [1st Dept 2018]; see also Week Publications, Inc. v Hernandez, 54 Misc 3d 1221(A) [NY Sup. 2016]).

The joint motion of Scott Reback and Titan Motor Group, LLC for an order dismissing the first, third, fifth and seventh causes of action for defamation pursuant to CPLR 3211 (a) (5) on the basis that they are untimely is granted.

The joint motion of Scott Reback and Titan Motor Group, LLC for an order dismissing the second, fourth and sixth causes of action for tortious interference with business relations pursuant to CPLR 3211 (a) (7) for failure to state a cause of action is denied.

The joint motion of Scott Reback and Titan Motor Group, LLC for an order dismissing the eighth cause of action for violation of New York State Labor Law §215 pursuant to CPLR 3211 (a) (7) for failure to state a cause of action is granted.

The moving defendants are directed to answer the complaint no later than thirty days after service of notice of entry of this order.

The foregoing constitutes the decision and order of this Court.