This is an action for defamation, product disparagement, and civil assault, for which Plaintiff seeks money damages, and injunctive relief.^[FN1]

Plaintiff is in the business of publishing restaurant reviews and news through social [*2]media, Facebook and Instagram, and provides digital media and marketing services.^[FN2] Plaintiff claims Defendants falsely and maliciously made defamatory claims against Plaintiff on social media, including but not limited to the following:

1. " . . . She another one, is a jealous person because she's failed, she's failed in the business, she hasn't made it, she's gone out of business, she was late on her rent six months, she filed bankruptcy. She's . . . Tipsy Moose she told bad things about. She's done bad things."^[FN3]

2. "Who are you taking advice from? Are you taking advice from someone that does nothing, has nothing, doesn't own their own house."^[FN4]

3. " . . . i will spend thousands to shut her down and today i paid a private investigator and got a lot of information about her and her failed business and money she borrowed and i will get everything together and unlike her trash site with a bunch of low life's and there some good people in her site i will mail a copy to every restaurant in the 518 and a copy of her rules and let's see when i am done how many restaurants will be part of that page and her 2nd page unlike her i am not jealous of anyone and would never try to hurt a small business."

4. "Let's just be real for a minute, I used to advertise on 518 Foodie[s]. I used to pay the owner of 518 Foodie[s], Jackie to-to do my advertisement ok. I spent thousands of dollars with her. I got ripped off if you wanna ask me. So, I stopped doing business with her. We got her cell number. So, she puts this thing up and my wife calls her up and tells her to take it down. She another one, is a jealous person because she's failed, she's failed in the business, she hasn't made it, she's gone out of business, she was late on her rent six months, she filed bankruptcy. She's . . . Tipsy Moose she told bad things about. She's done bad things. So that's my reason for opening up this new page and you know something I've got a lot of money. People can say what they want but I've got a lot of money and how do you hurt somebody? By something they love the most. You shut them down, you put them out. You know what I mean, and that's what I'll do. Because that's, if you attack me or my family or my restaurant I'm going to attack you. But I'm not going to do it in a way where I am going to hurt you violently. If a guy said something to me, I'm going to roll up on him and beat 'em up you know what I mean, but a girl, I can't do nothing to a girl. I'm not a woman beater. I would never want a woman to get beat up or anything like that, that's just terrible. But when you try to hurt somebody's business you have consequences and you know the nice thing about life is, karma is a bi***. But when you're dealing with someone who has failed on five (5) different businesses and your dealing with somebody like me and my wife that's successful that we pay taxes than you've ever made in your whole life. That's reality. But it is what it is . . . " (Emphasis added)

Defendant moved to dismiss the Complaint pursuant to CPLR R 3211(a) (7), on the ground that the allegations in the complaint failed to state any cause of action against the moving defendants. Defendants also claims Plaintiff failed to allege sufficient facts to established damages pursuant to CPLR §3013.

In her response to the motion, Plaintiff set forth, in detail, the false nature of the statements made by defendants, which had been pled in the complaint.^[FN8] For example, Plaintiff submitted the underlying contract and credit card statements as documentary evidence that defendant's claim he paid her in cash is false.^[FN9] In fine, this dispute centers on questions of fact.

The CPLR R 3211 review standard requires that a Court "must give the pleadings a liberal construction, accept the allegations as true and accord the Petitioners every possible favorable inference" (Chanko v. Am. Broad Companies, Inc., 27 NY3d 46, 52 [2016]; see also, Conklin v Laxen, 180 AD3d 1358, 1362 [4th Dept. 2020]; Piller v Tribeca Dev. Group LLC, 156 AD3d 1257, 1261 [3d Dept. 2017]). In Wedgewood Care Ctr. v. Kravitz, 198 AD3d 124, 130 [2d Dept. 2021], the court held,

On a motion to dismiss for failure to state a cause of action, the pleading is to be afforded a liberal construction. The facts alleged in the complaint must be accepted as true, and the plaintiff is entitled to receive the benefit of every possible favorable inference. Dismissal of the complaint is warranted if the plaintiff fails to assert facts in support of an element of the claim, or if the factual allegations and inferences to be drawn from them do not allow for an enforceable right of recovery.

However, allegations consisting of bare legal conclusions as well as factual claims flatly contradicted by documentary evidence are not entitled to any such consideration, nor to that arguendo advantage." (Internal quotations and citations omitted; emphasis added).

"However, the favorable treatment accorded to a plaintiff's complaint is not limitless and, as such, conclusory allegations — claims consisting of bare legal conclusions with no factual specificity — are insufficient to survive a motion to dismiss. Whether a plaintiff can ultimately establish its allegations is not part of the calculus in determining a motion to dismiss." (Internal quotations and citations are omitted; emphasis added)

As a matter of pleading, CPLR 3016 (a) requires Plaintiff to plead the exact words complained of and "the time, place and manner of the allegedly false statements and specify to whom such statements were made" (See Sibley v. Meridian Wildlife Servs., LLC, 2025 NY Slip Op 00011 [3d Dept. 2025]; Jackie's Enters., Inc. v Belleville, 163 AD3d 1567 [3d Dept. 2018]). In Halpin v. Banks, 231 AD3d 1337, 1339-1340 [3d Dept. 2024] the Court identified the elements of a defamation cause of action as follows:

"A claim of defamation requires proof that the defendant made a false statement, published that statement to a third party without privilege, with fault measured by at least a negligence standard, and the statement caused special damages or constituted defamation per se. It is for the court to decide whether the statements complained of are reasonably susceptible of a defamatory connotation, thus warranting submission of the issue to the trier of fact. This determination is made by looking at the context and circumstances surrounding the entire communication." (Emphasis added; internal quotations and citations omitted)

Here, Plaintiff pled the precise words complained of, identified the time, place, and way the statements were made and published via social media, that the statements were false, and that the statements constituted defamation per se. Defendant claims, however, the alleged statements were nonactionable opinion, not fact.

In Davis v Boeheim, 24 NY3d 262 [2014] the Court engaged is a succinct analysis of the distinction between fact, pure opinion and mixed opinion that is most informative to resolve the subject motion. Plaintiffs sued Syracuse University and their legendary basketball Coach Jim Boeheim for defamation. Plaintiffs had worked as ball boys for the Syracuse men's basketball team and claimed they had been sexually assaulted by Bernie Fine, the team's associate head Coach. Plaintiffs claimed,

"For years the sexual abuse continued, on and off campus, on team trips away from the University, in Fine's car and in his home. Davis alleged that in his case the abuse continued for almost two decades, commencing when he was about 11 years old. Plaintiffs further alleged that Boeheim had observed Davis with Fine at practices, at games, and on trips with the team, including once in Fine's hotel room during the 1987 NCAA Final Four." (Id. at p. 265)

"The story also relayed Davis' statement that Boeheim saw Davis lying on Fine's hotel room bed during the 1987 NCAA Final Four."(Id. at p. 266)

The same day the ESPN story broke, and before the University's statement went public, Boeheim issued a one-paragraph statement, released by the Syracuse University news service, in which he too announced that the University had investigated the allegations and had concluded they were unfounded. Boeheim further declared that "Bernie [Fine] has my full support," and that he had known Fine for over 40 years and had "never seen or witnessed anything to suggest that [Fine] would be involved in any of the activities alleged." Boeheim stated that if he had "seen or suspected anything, I would have taken action." Boeheim made several other statements to reporters, which were quoted in the print and online versions of the New York Times, on the Syracuse Post-Standard's website Syracuse.com, on SportingNews.com, and on ESPN.com. In these statements, Boeheim reasserted his support for Fine and his denial of any knowledge of the claimed events as described by Davis. He also called Davis and Lang liars, and stated that their allegations were financially motivated. (Id. at 266-267) (Emphasis added)

1. "This is alleged to have occurred . . . what? Twenty years ago? Am I in the right neighborhood? . . . So we are supposed to do what? Stop the presses 26 years later? For a false allegation? For what I absolutely believe is a false allegation? I know [Davis is] lying about me seeing him in his hotel room. That's a lie. If he's going to tell one lie, I'm sure there's a few more of them."

2. "The Penn State thing came out and the kid behind this is trying to get money. He's tried before. And now he's trying again. . . . That's what this is about. Money."

3. "It is a bunch of a thousand lies that [Davis] has told . . . . He supplied four names to the university that would corroborate his story. None of them did . . . there is only one side to this story. He is lying." Boeheim continued, "I believe they saw what happened at Penn State, and they are using ESPN to get money. That is what I believe."

4. "You don't think it is a little funny that his cousin (relative) is coming forward?"

5. Boeheim stated that the timing of Lang's decision to speak out about his abuse seemed "a little suspicious." (Id. at p. 270-271)

Plaintiff sued Boeheim for defamation, and he moved to dismiss on the grounds that the statements were nonactionable opinion, not facts.

Applying the liberal standard in context of a CPLR 3211 motion, the Court held analyzed the distinction between fact, pure opinion and mixed opinion as follows:

"In order for the challenged statements to be susceptible of a defamatory connotation, they must come within the well established categories of actionable communications. Thus, a false statement that tends to expose a person to public contempt, hatred, ridicule, aversion or disgrace constitutes defamation. Since falsity is a necessary element of a defamation cause of action and only facts are capable of being proven false, . . . only statements alleging facts can properly be the subject of a defamation action.

A defamatory statement of fact is in contrast to pure opinion which under our laws is not actionable because [e]xpressions of opinion, as opposed to assertions of fact, are deemed privileged and, no matter how offensive, cannot be the subject of an action for defamation. For, [h]owever pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas. A pure opinion may take one of two forms. It may be a statement of opinion which is accompanied by a recitation of the facts upon which it is based, or it may be [a]n opinion not accompanied by such a factual recitation so long as it does not imply that it is based upon undisclosed facts.

While a pure opinion cannot be the subject of a defamation claim, an opinion that implies that it is based upon facts which justify the opinion but are unknown to those reading or hearing it, . . . is a mixed opinion and is actionable. This requirement that the facts upon which the opinion is based are known ensure[s] that the reader has the opportunity to assess the basis upon which the opinion was reached in order to draw [the reader's] own conclusions concerning its validity. What differentiates an actionable mixed opinion from a privileged, pure opinion is the implication that the speaker knows certain facts, unknown to [the] audience, which support [the speaker's] opinion and are detrimental to the person being discussed.

Distinguishing between fact and opinion is a question of law for the courts, to be decided based on what the average person hearing or reading the communication would take it to mean[(w)hether a particular statement constitutes an opinion or an objective fact is a question of law]. The dispositive inquiry . . . is whether a reasonable[reader] could have concluded that [the statements were] conveying facts about the plaintiff." (Id. at p. 268-270) (Internal quotations and citations omitted; emphasis in original).

Here, Defendant stated, inter alia, Plaintiff had not paid rent for 6 months, that he paid Plaintiff in cash on a regular basis, that she ate for free at the restaurant, and that she had filed bankruptcy. Such statements are specific, readily understood, and capable of being proven true or false. In context of Defendant's claimed business relationship with Plaintiff it is manifest that Defendant's Facebook followers would take the allegations as fact, not opinion. Moreover, as a businessperson, such statements would subject Plaintiff to public contempt, ridicule, aversion or disgrace. It gets worse!

Defendant's statements that Plaintiff has done bad things, failed in five (5) different businesses, and gone out of business, is not "pure opinion" but rather constitutes actionable mixed opinion. (Emphasis added) Clearly, Defendant claims to have knowledge of underlying facts not disclosed to the listener (See Stega v New York Downtown Hosp., 31 NY3d 661, 674-675 [2018]; Cf. Alaei v. State, 222 N.Y.S.3d 810 [3d Dept. 2025]). Once again, as a businessperson, such statements would undermine Plaintiff's integrity, and subject Plaintiff to public contempt, ridicule, aversion or disgrace.

An additional issue is whether the alleged statements constitute defamation per se. If so, "the law presumes that damages will result, and special damages need not be alleged or proven." (See Kasavana v Vela, 172 AD3d 1042, 1046 [2d Dept. 2019]). If not, special damages must be proven.

In Liberman v. Gelstein, 80 NY2d 429, 435 [1992], the Court identified the elements of defamation per se, listing four (4) distinct exceptions:

"The four established exceptions (collectively "slander per se") consist of statements (i) charging plaintiff with a serious crime; (ii) that tend to injure another in his or her trade, business or profession; (iii) that plaintiff has a loathsome disease; or (iv) imputing unchastity to a woman." (Internal citations omitted; emphasis added)

Here, Defendant allegedly said that Plaintiff had done bad things, was back on her rent 6 months, had failed in five (5) businesses, and required payment in cash, all such statements tending to injure Plaintiff's business reputation. Thus, Plaintiff has alleged sufficient facts to constitute slander per se. In turn, Plaintiff has also alleged special damages, due to her alleged 33 % loss in business revenues (See Liberman v. Gelstein, supra at 434-435, where the Court held,

"Special damages contemplate "the loss of something having economic or pecuniary value.") (Emphasis in original)

As of March 13, 2025, Plaintiff now claims her revenues have dropped 90%, due to continuing damage impact arising out of defendant's defamatory remarks.^[FN10]

It is the determination of the Court that Plaintiff has alleged sufficient facts to set forth a defamation cause of action, and the motion to dismiss this cause of action is denied.

In Thome v. Alexander & Louisa Calder Found, 70 AD3d 88, 105 [1st Dept. 2009], the Court held,

"[P]roduct disparagement is an action to recover for words or conduct which tend to disparage or negatively reflect upon the condition, value, or quality of a product or property, and . . . the elements of a product disparagement which must be proven are: (1) falsity of the statement; (2) publication to a third person; (3) malice (express or implied); and (4) special damages." (Emphasis in original)

In Ruder & Finn, Inc. v. Seaboard Sur. Co., 52 NY2d 663, 670-671 [1981], the Court identified the distinguishing features of defamation and disparagement, as follows:

"Now, although defamation and disparagement in the commercial context are allied in that the gravamen of both are falsehoods published to third parties, there is a distinction. Where a statement impugns the basic integrity or creditworthiness of a business, an action for defamation lies and injury is conclusively presumed. Where, however, the statement is confined to denigrating the quality of the business' goods or services, it could support an action for disparagement, but will do so only if malice and special damages are proven." (Emphasis in original; citations omitted)

Here, the statements allegedly made by Defendant negatively reflect on Plaintiff and her business product. Plaintiff alleged the statements were false and published via Facebook. In [*3]context of the challenged words, and the overtly threatening way they were uttered, it is manifest the Defendant acted with malice. Last, Plaintiff alleged economic damages, i.e. special damages. It is manifest that the defendant's challenged statements support both a defamation per se cause of action as well as a disparagement cause of action (See Luo & Assoc. v. NYIS Law Firm, A.P.C., 211 AD3d 533, 534 [1st Dept. 2022]).

It is the determination of the Court that Plaintiff has alleged sufficient facts to set forth a product disparagement cause of action, and the motion to dismiss this cause of action is denied.

In Calkins v. Dernlan, 2025 NY App. Div. LEXIS 142 [3d Dept. 2025], the Court held,

" . . . for a defendant to be liable in civil assault, the plaintiff must "prove that [the] defendant[ ] intentionally placed [him or] her in apprehension of imminent harmful or offensive contact."

Plaintiff alleged that on November 16, 2024, she received the following phone call message from Defendant Alyssa Cappello to wit:

"Jackie, I swear to God you're going to be fu***** sorry, I'm going to fu***** rip your fu***** hair out. You need to delete it now. I swear to go on my kids I'm going to fu** you up Jackie. Delete it now. You don't want this. Ok, because I do give a fu** ok, and I'll take a fu***** assault charge for you ok. Because you think your fu***** cute, you think your fu***** God, you wanna control sh**, you're fu***** weird. Delete it now!"^[FN11]

"We got her cell number. So, she puts this thing up and my wife calls her up and tells her to take it down."^[FN12]

"Jackie started to belittle my wife acting like she was God and what she was gonna do. So my wife, you know when this is your family business somebody's attacking you, if you don't stand up you're a punk. If you wanna be a coward and not say nothing you're a [*4]punk were gonna stick up for our business especially when were right. So my wife said straight up, she's like Jackie take it down.^[FN13]

Stated another way, the threat of physical harm was made via phone message, and over the next two days, Defendants engaged in the overt acts of referencing the phone message in the Facebook Posts. Clearly, the reasoned inference is that the defendants' statements and actions were intentional, and placed Plaintiff in apprehension of imminent harm. Plaintiff alleged that because of her apprehension of harm, she applied for and received an Order of Protection in her favor against defendants.^[FN14]

It is the determination of the Court that Plaintiff has alleged sufficient facts to set forth a civil assault cause of action, and the motion to dismiss this cause of action is denied.

For the reasons more fully stated above, Defendants motion to dismiss the complaint is denied, and it is further,

ORDERED, pursuant to CPLR 3211 (f) defendants time to answer is extended to ten days after service of notice of entry of this Decision and Order, and it is further,

ORDERED, a preliminary conference shall take place via TEAMS on April 8, 2025, at 10:00 a.m.

This memorandum constitutes the decision and order of the Court.