This motion arises in the context of a request by defendant Denise B. Isip under CPLR 3211 (g) to dismiss defamation claims brought against her by plaintiffs, James DiPietro and DJ Dippa LLC. Plaintiffs now seek leave under CPLR 3211 (g) (3) for leave to conduct discovery that they contend to be required to oppose Isip's motion to dismiss. Plaintiffs' discovery motion is denied.

Plaintiff DiPietro formerly had a DJ contract with defendant The DL, a bar/club in Manhattan; defendant Isip was a bartender at The DL. Isip made an internal complaint to her supervisors at The DL that DiPietro had sexually harassed and groped her. Following this complaint, The DL terminated its contract with DiPietro.^[FN1]

DiPietro later brought this action, alleging among other things that Isip's internal harassment complaint was false and defamatory.^[FN2] (See NYSCEF No. 1.) In April 2025, Isip brought an anti-SLAPP motion to dismiss under CPLR 3211 (g) (1). (See NYSCEF No. 17 [notice of motion].) The motion was originally returnable on May 28, 2025 (see id.); the parties stipulated on May 19 to adjourn that return date to June 27, with plaintiffs' opposition papers due on June 20. (NYSCEF No. 38.)

On June 13, 2025—three weeks after entering into the adjournment stipulation, and one week before the deadline for opposition papers—plaintiffs brought this discovery motion by proposed order to show cause. (See NYSCEF No. 40.)

Plaintiffs' motion seeks depositions of Isip, defendant Kevin Le (her immediate supervisor at The DL), Jack Little (general manager of The DL), and Angel Castro (the witness who corroborated one of Isip's allegations). (See id. at 2.) Plaintiffs also seek document discovery: (i) All communications between Isip and The DL staff, or between Isip and third parties, about DiPietro, about the specific incidents identified in Isip's complaint, or about the complaint itself; (ii) any personal notes, journals, or the like, maintained by Isip about DiPietro or about the subject matter of her complaint; and (iii) all documents related to The DL's investigation into Isip's complaint. (See id.)

In addition, plaintiffs seek an interim stay of "all proceedings" in the action pending a decision on the discovery motion, except those proceedings related to the discovery motion itself. (Id. at 3.)

This court requested that the parties provide simultaneous letter briefing by 5:00 p.m. on June 18, 2025, on the requested interim stay; and the parties filed those letters as requested. (See NYSCEF Nos. 48-50.) Having considered the parties' letter submissions, the court concludes in the interest of expedition that plaintiffs' discovery motion may properly be treated now as a [*2]motion made on notice, and resolved on that basis.^[FN3] The motion is denied.

CPLR 3211 (g) (3) provides that discovery is ordinarily stayed by the filing of an anti-SLAPP motion to dismiss. This paragraph also provides, however, that "on [a] noticed motion and upon a showing by the nonmoving party, by affidavit or declaration under penalty of perjury that, for specified reasons, it cannot present facts essential to justify its opposition," the court may direct the parties to conduct specified discovery on issues raised by the motion. Plaintiffs have not satisfied these requirements.

1. As a procedural matter, plaintiffs' motion is not supported by the necessary evidentiary submission.^[FN4] CPLR 3211 (g) (3) requires that the party seeking discovery must establish the need for that discovery "by affidavit or declaration under penalty of perjury." Plaintiffs have not provided either an affidavit or sworn declaration that might show discovery to be required.

Plaintiffs contend that they may properly rely on their "attorney's affirmation, made pursuant to CPLR 2106 and incorporating the detailed legal and factual arguments in the memorandum of law." (NYSCEF No. 50 at 2.) But that contention does not accurately characterize plaintiff's submissions on this motion. Plaintiffs' attorney affirmation serves only as a vehicle for putting four documents before the court on this motion (all of which have already been filed on the docket anyway). (See NYSCEF No. 43.) The affirmation does not make any factual representations supporting the need for pre-answer discovery. Nor does it purport to incorporate by reference the factual representations made in plaintiffs' memorandum of law, as plaintiffs suggest in their letter brief. (See id.)

2. Even if this court were to overlook this evidentiary shortcoming, the court is not [*3]persuaded that pre-answer discovery is warranted. Plaintiffs contend that they need discovery to develop further evidence that Isip's statements were made with actual malice. (See NYSCEF No. 42 at 2-4 [mem. of law].) The actual-malice issue is only one of several arguments raised by Isip in her motion to dismiss.^[FN5] Yet the discovery plaintiffs seek on this motion—effectively, depositions of all witnesses with knowledge and production of all relevant documents (see NYSCEF No. 40 at 2)—would suffice to permit summary judgment briefing on all of Isip's asserted grounds for dismissal.

The marked disjunction between the scope of the issue for which plaintiffs contend they need discovery and the scope of the requested discovery raises the concern that plaintiffs' motion is driven by considerations other than an inability to "present facts essential to justify [their] opposition" to Isip's request for dismissal. (CPLR 3211 [g] [3].) This concern weighs heavily against this court's exercising its discretion to permit plaintiffs to conduct pre-answer discovery.

3. Nor, in any event, have plaintiffs shown that they are unable on the current record to oppose Isip's motion adequately.

Plaintiffs' defamation claim is, in essence, that in making her complaint to her supervisors, Isip (allegedly) described two interactions with DiPietro in a way that she must have known was false (with respect to one interaction) or was materially misleading by omission (with respect to the other interaction). (See NYSCEF No. 1 at ¶¶ 13, 15, 16, 17, 30, 32.) And plaintiffs' discovery motion acknowledges that the complaint "already alleges significant circumstantial evidence from which Isip's actual malice can be inferred." (See NYSCEF No. 42 at 3 [identifying four categories of allegations].)

In other words, plaintiffs have had all along information and documents that they believe establish that Isip acted with actual malice—the sole issue on which plaintiffs are seeking discovery. Plaintiffs' argument for why they should nonetheless be entitled now to take depositions and obtain more documents is that absent that discovery, they would be "unfairly hampered in their ability to present direct evidence of actual malice." (Id. [emphasis added].) Plaintiffs do not, however, explain why that direct evidence is "essential" to their ability to oppose the actual-malice aspect of Isip's motion. Instead, plaintiffs' position reduces to a contention that obtaining discovery could enhance their existing arguments and supporting evidence on that issue. This contention is not a sufficient basis to permit pre-answer discovery under CPLR 3211 (g) (3)—let alone the broad-ranging and time-consuming discovery that plaintiffs ask this court to direct.

Given the timing of this determination, the court concludes that plaintiffs should be afforded an extension of the deadline for their opposition papers. Plaintiffs' time to file papers [*4]opposing defendants' motions is hereby extended to July 2, 2025. Defendants may file reply papers on or before Friday, July 14.

The court also recognizes plaintiffs' contention that The DL/Le motion to dismiss is stayed under CPLR 3211 (g) (3). The court directs The DL and Le to submit a letter brief (through e-filing and email to SFC-Part7-Clerk) by 5:00 p.m. on Tuesday, June 24, 2025, addressing that contention. Plaintiffs may submit a responsive letter brief (through the same means) by 5:00 p.m. on Wednesday, June 25.

Accordingly, it is

ORDERED that plaintiffs' motion for discovery under CPLR 3211 (g) (3) is denied.