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Lesesne v. Brimecome

United States District Court, S.D. New York

January 14, 2013

Carroll B.B. LESESNE, M.D., et al., Plaintiffs,
v.
Charlotte BRIMECOME, et al., Defendants.

Page 222

Donald Howard Chase, Morrison Cohen Singer & Weinstein, LLP, New York, NY, for Plaintiffs.

Robin D. Fessel, Sullivan and Cromwell, LLP, New York, NY, for Defendants.

Page 223

OPINION

ALISON J. NATHAN, District Judge.

Plaintiffs Dr. Carroll B.B. Lesesne and International Cosmetic Surgery, P.C. filed this action on May 8, 2012, against the Defendants, Charlotte Brimecome and Ian Brimecome, alleging tortious interference with contract and business relations, tortious interference with prospective business relations and economic advantage, and bad faith reporting under New York Public Health Law § 230(11)(b). Defendants move to dismiss. For the reasons articulated below, the Court GRANTS the motion to dismiss.

I. FACTS

In brief, the facts as alleged in the Complaint are as follows. In late April 2008, Charlotte Brimecome received several different plastic surgeries from Dr. Lesesne. (Compl. ¶¶ 13-15). Although Mrs. Brimecome initially expressed happiness with the results of these surgeries (Compl. ¶ 22), she and her husband apparently became dissatisfied with the results sometime thereafter (Compl. ¶¶ 25-30). This, according to Plaintiffs, led to " a malicious campaign against Dr. Lesesne" in which the Brimecomes " fabricated a number of lies about him and his medical practice ... and repeatedly made false reports to governmental authorities." (Compl. ¶ 1).

Plaintiffs point to a number of alleged acts taken by the Brimecomes that Plaintiffs claim were part of this malicious campaign. For example, Plaintiffs claim that the Brimecomes made a number of false statements about Dr. Lesesne and his medical practice on the internet, including some false allegations that Dr. Lesesne engaged in what would appear to be serious misconduct. (Compl. ¶¶ 28-29). In addition, Plaintiffs allege that the Brimecomes made false reports to both the New York Office of Professional Misconduct (" OPM" ) and the United Kingdom's General Medical Counsel (" GMC" ). (Compl. ¶¶ 31-49). Moreover, Plaintiffs allege, without further elaboration, that " [u]pon information and belief ... Charlotte Brimecome communicated with other patients of Dr. Lesesne in an effort to induce them to make complaints or support her complaints, and otherwise to refrain from dealing with Dr. Lesesne." (Compl. ¶ 26). The complaint to the GMC is alleged to have been made " in or about May, 2011" (Compl. ¶ 38) and the complaint to the OPM is alleged to have been made " sometime in early 2009" (Compl. ¶ 34). No dates are provided as to when Mrs. Brimecome allegedly contacted Dr. Lesesne's customers (Compl. ¶ 26) or made the alleged statements on the internet (Compl. ¶¶ 28-29 (alleging only that the statements were made " from at least late 2008 to date" )).

II. DISCUSSION

To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to " state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). In considering a motion to dismiss, the Court must accept as true all facts alleged in the complaint, and must draw all reasonable inferences in favor of the plaintiff. Kassner v. 2nd Ave. Delicatessen, Inc., 496 F.3d 229, 237 (2d Cir.2007). In addition to allegations in the complaint itself, the Court may consider documents attached to the complaint as exhibits and documents incorporated by reference in the complaint. Halebian v. Berv, 644 F.3d 122, 131 n. 7 (2d Cir.2011); Chapman v. N.Y. State Div. for Youth, 546 F.3d 230, 234 (2d Cir.2008).

Page 224

A. Tortious Interference Claims

The first and second causes of action of Plaintiffs' Complaint are for tortious interference with contract and tortious interference with prospective business relations, respectively. Defendants move to dismiss these claims, arguing that they are time-barred defamation claims in disguise and, regardless, do not sufficiently plead tortious interference. Plaintiffs argue that their claims indeed sound in tortious interference, not defamation, and that ...


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