The following electronically filed documents read on this Order to Show Cause by plaintiff for an Order enjoining and restraining the Defendant, CHEN CHEN A/K/A MAGICFISHCC, or her business, agents, representatives, employees, or anyone else acting on her behalf or in concert with her, during the pendency of this action, from publishing, releasing, spreading, disclosing any attorney client privileged or confidential information, communications and documents regarding, about or relating to the Plaintiff, including, but not limited to, her passport, social security number, date of birth, driver’s license or any other confidential information or document regarding about or relating to the Plaintiff; enjoining and restraining the Defendant, CHEN CHEN A/K/A MAGICFISHCC, or her business, agents, representatives, employees, or anyone else acting on her behalf or in concert with her, during the pendency of this action, from publishing, releasing, spreading, making any libelous, defamatory, derogative or untruthful announcement or statement about the Plaintiff in any media, forum or to any third party or parties, placing the Plaintiff in false light, or in any other manner impacting the reputation, goodwill, business of the Plaintiff; and ordering and compelling the Defendant, CHEN CHEN A/K/A MAGICFISHCC, or her business, agents, representatives, employees, or anyone else acting on her behalf or in concert with her, to remove, delete or otherwise block the view by any party of any and all publication, review, comment, narrative or any statement regarding, about or relating to the Plaintiff which was published, disclosed or posted by the Defendant, including, but not limited to, narratives and documents of the Plaintiff published by the Defendant, CHEN CHEN A/K/A MAGICFISHCC, at www.moonbbs.com/thread-3923238-1-1.html; and on this cross-motion by the Defendant, CHEN CHEN A/K/A MAGICFISHCC, for an Order dismissing this action in its entirety due to all of its alleged causes of action being time-barred by the statute of limitations of CPLR 215(3), this action having been commenced more than the one year after the publication alleged by the Plaintiff herein to be actionable: Papers Numbered Order to Show Cause-Affirmation-Affidavit-Exhibits EF 2-12 Notice of Cross-Motion-Affirmation EF 16-20 Affirmation in Opposition to Cross-Motion & In Further Support-Exhibits EF 21-25 Amended Affirmation-Memo. of Law-Exhibits EF 26-321 Notice of Rejection-Supplemental Affirmation-Exhibits EF 33-36 This is an action for defamation, intentional infliction of emotional distress, and violations of Sections 50 and 51 of the New York Civil Rights Law. Plaintiff commenced this action by filing a summons and complaint on April 9, 2021. Defendant filed a Notice of Appearance on May 17, 2021. Plaintiff now moves via Order to Show Cause for a preliminary injunction. Defendant cross-moves to dismiss the action as time-barred. In support of her application, plaintiff submits an affidavit dated April 8, 2021, affirming that on April 3, 2021, she learned that there was a narrative published posted on moonbbs.com by a user/subscriber under the name magicfishcc. She knows that user/subscriber name is defendant because defendant used the same name to publish an advertisement to sell a car wherein defendant listed her cellular phone number, which defendant used to communicate with plaintiff. All of the statements posted by defendant are untrue, evil, and defamatory with the deliberate intention to harm and damage her reputation, business and family. Defendant also posted her private and confidential identity documents, including her driver’s license, social security number, I-94 Entry Card, Visa, Permanent Resident card, and Passport. She has never defrauded anyone for a commission, pretended to be a Customs officer, defrauded anyone for money to help he or she clear through Customs, or, inter alia, had a sexual relationship with anyone who is married. She is not aware of any investigation by the New York Police Department or FBI about her. Defendant is the wife and associate attorney of her husband Hui Chen’s law office, Hui Chen & Associates PLLC. She hired Mr. Chen as her attorney. As of the date of her affidavit, over 1092 views of the publication have occurred. She has received phone calls inquiring about the publication, making her feel humiliated, embarrassed, ashamed, anxious, and depressed. She has a loss of appetite and sleep. She used to work for Mr. Hui Chen and his law office. Defendant started to accuse her of having an affair with her husband. Plaintiff also submits a copy of the publication with translation. In opposition and in support of the cross-motion, defendant contends that the action is time-barred. Defendant reprints the Publication, pointing out that the date of the post is March 31, 2020. In reply, plaintiff submits an affidavit, affirming that whether the narrative was published on March 31, 2020 is an issue of fact that warrants discovery. Additionally, plaintiff affirms that the narrative was republished on google.com and kantie.org. A copy of the two publications are also submitted. Here, it is undisputed that the three causes of action are all governed by a one year statute of limitations (see CPLR 215[3]; Colantonio v. Mercy Med. Ctr., 115 AD3d 902 [2d Dept. 2014][a claim for a publication-based tort accrues on the date of the first publication]). Thus, assuming that the publication was made on March 31, 2020, the statute of limitations was to expire on March 31, 2021, which was prior to commencement of this action. However, the statute of limitations was tolled on March 20, 2020 by Governor Cuomo’s Executive Order No. 202.8 (9 NYCRR 8.202.8), which provides in relevant part: “I hereby temporarily suspend or modify from the date of this Order…any specific time limit for commencement, filing, or service of a legal action” (see Brash v. Richards, 2021 NY Slip Op 03436 [2d Dept. 2021]). The subsequent executive orders extended the toll until November 4, 2020 (see 9 NYCRR 8.202.72; Brash v. Richards, 2021 NY Slip Op 03436 [2d Dept. 2021]). Therefore, this action was timely commenced. Accordingly, and as defendant’s sole argument in opposition to the application was based upon the defense of statute of limitations, it is hereby ORDERED, that the application is granted; and it is further ORDERED, that the Defendant, CHEN CHEN A/K/A MAGICFISHCC, and her business, agents, representatives, employees, and anyone else acting on her behalf or in concert with her, during the pendency of this action, are hereby enjoined and restrained from publishing, releasing, spreading, disclosing any attorney client privileged or confidential information, communications and documents regarding, about or relating to the Plaintiff, including, but not limited to, her passport, social security number, date of birth, driver’s license or any other confidential information or document regarding about or relating to the Plaintiff; and it is further ORDERED, that the Defendant, CHEN CHEN A/K/A MAGICFISHCC, and her business, agents, representatives, employees, and anyone else acting on her behalf or in concert with her, during the pendency of this action, are hereby enjoined and restrained from publishing, releasing, spreading, making any libelous, defamatory, derogative or untruthful announcement or statement about the Plaintiff in any media, forum or to any third party or parties, placing the Plaintiff in false light, or in any other manner impacting the reputation, goodwill, business of the Plaintiff; and it is further ORDERED, that the Defendant, CHEN CHEN A/K/A MAGICFISHCC, and her business, agents, representatives, employees, and anyone else acting on her behalf or in concert with her, shall remove, delete or otherwise block the view by any party of any and all publication, review, comment, narrative or any statement regarding, about or relating to the Plaintiff which was published, disclosed or posted by the Defendant, including, but not limited to, narratives and documents of the Plaintiff published by the Defendant, CHEN CHEN A/K/A MAGICFISHCC, at www.moonbbs.com/thread-3923238-1-1.html; and it is further ORDERED, that the cross-motion is denied. Dated: June 17, 2021
