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Wu v. Troy

Supreme Court, New York County

July 12, 2013

JOHN TROY f/k/a JOHN TSAI and JOHN TROY & ASSOCIATES, PLLC a/k/a TROY & ASSOCIATES, PLLC, Defendants. Index No. 150664/2013

Unpublished Opinion



Defendants John Troy f/k/a John Tsai and John Troy & Associates, PLLC a/k/a Troy & Associates, PLLC (collectively, "Defendants") move for an Order, pursuant toCPLR§§3211(a)(1) and (a)(7), to dismiss Plaintiffs' Complaint. Plaintiffs oppose.

This action arises out of Complaint filed by Defendants, as lawyers and on behalf of Cheng Chung Liang, Tey Kui Sun, and Fu Hsiung Chen, in the U.S. District Court for the Southern District of New York on or about February 10, 2012 ("the SDNY Complaint"). The SDNY Complaint named as defendants J.C. Broadway Restaurant, Inc. d/b/a Empire Szechuan Upper Manhattan ("ESUM"), and Empire Szechuan Noodle House, Inc. d/b/a Empire Szechuan Kyoto, as well as naming Plaintiffs individually. The SDNY Complaint alleged claims for, inter alia, violation of federal and state labor laws in connection with the alleged failure of ESUM to make payments of minimum and overtime wages. The SDNY Complaint named Plaintiffs, employees of ESUM, as individual defendants based on allegations that they were owners, officers, and/or managers of the corporate defendants. The SDNY Action is still pending.

In this action, Plaintiffs allege that the allegations contained in the SDNY Complaint were inaccurate and constitute misrepresentations. Plaintiffs also allege that the allegations were never authorized by Chen, one of the plaintiffs in the SDNY Action, who is not a plaintiff in this action. Plaintiffs allege the following causes of action arising out of the allegations contained in the SDNY Complaint: (1) defamation; (2) defamation per se; (3) prima facie tort; and (4) abuse of process.

CPLR §3211 provides, in relevant part:

(a) a party may move for judgment dismissing one or more causes of action asserted against him on the ground that:
(1) a defense is founded upon documentary evidence;
(7) the pleading fails to state a cause of action.

In determining whether dismissal is warranted for failure to state a cause of action, the court must "accept the facts alleged as true ... and determine simply whether the facts alleged fit within any cognizable legal theory." {People ex rel. Spitzerv. Sturm, Ruger&Co., Inc., 309 A.D.2d91 [1stDept. 2003]) (internal citations omitted) (see CPLR §3211 [a][7]).

On a motion to dismiss pursuant to CPLR §3211(a)(1) "the court may grant dismissal when documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law." (Beal Sav. Bank v. Sommer, 8 N.Y.3d 318, 324 [2007]) (internal citations omitted) "When evidentiary material is considered, the criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one." (Guggenheimer v. Ginzburg, 43 N.Y.2d 268, 275 [1977]) (emphasis added). A movant is entitled to dismissal under CPLR §3211 when his or her evidentiary submissions flatly contradict the legal conclusions and factual allegations of the complaint. (Rivietzv. Wolohojian, 3S A.D.3d301 [1st Dept. 2007]) (citation omitted).

Plaintiffs' first cause of action alleges defamation, and the second alleges defamation per se based on the allegations set forth in the SDNY Complaint.

"The Court of Appeals long ago established that a statement made in the course of judicial proceedings is absolutely privileged if it is at all pertinent to the litigation." DepalovLapin, 2009 N.Y. Misc. LEXIS 5963 (N.Y. Misc. 2009)(citations omitted). "Injudicial proceedings, the protected participants include the Judge, the jurors, the attorneys, the parties and the witnesses." (Id. )(citations omitted). Furthermore, "an absolute privilege affords a speaker or writer immunity from liability for an otherwise defamatory statement to which the privilege applies, regardless of the motive with which the statement was made." Sexter & Warmflash, P.C. v. Margrabe, 38 A.D.3d 163, 170-71(lst Dept 2007)(citations omitted). Here, since Plaintiffs' claims of defamation against Defendants arise solely out of the allegations contained in the SDNY Complaint, such claims are barred by the judicial proceedings privilege.

Plaintiffs' third cause of action alleges prima facie tort. Plaintiffs allege that Defendants "intentionally and for the purpose of inflicting pecuniary harm, i.e. strong-arm[ed] Plaintiffs into a monetary settlement despite Plaintiffs' lack of liability, " "without any excuse or justification other than the advancement of their own pecuniary interests, " and Plaintiffs "have incurred special damages as a result." The Complaint also alleges that Defendants' actions are "extreme and outrageous, and were ...

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