Papers Considered: 1. Notice of Motion and Affirmation in Support of Gabriel P. Harvis, Esq., dated August 31, 2021, and Verified Complaint, dated October 30, 2020. 2. Affirmation in Opposition of David Gordon, Esq., dated October 1, 2021, with Exhibits annexed thereto, including Affidavit of Samantha Shader, sworn to on September 29, 2021, along with Memorandum of Law, dated October 1, 2021. 3. Reply Affirmation in Further Support of Defendant’s Motion to Dismiss of Gabriel P. Harvis, Esq., dated October 15, 2021. 4. Affirmation in Sur-Reply of David Gordon, Esq., dated October 16, 2021. DECISION AND ORDER Plaintiff Samantha Shader commenced this action on November 16, 2020 by filing a summons and verified complaint asserting causes of action for defamation per se and negligent infliction of emotional distress against defendant Micah Overby, who identifies himself as “Ceo Sid” on his personal Facebook page. Defendant has now submitted a motion to dismiss the complaint, pursuant to CPLR 3211(a)(7), for failure to state a cause of action. Plaintiff’s causes of action have their genesis in the May 29, 2020 public protests in Brooklyn, New York in response to the May 25, 2020 death of George Floyd in Minneapolis, Minnesota while in police custody (Complaint 3). The complaint paints the following portrait of the events that followed, as they concern plaintiff: During one of the May 29 protests, a 27 year-old woman named Samantha Shader was arrested by the New York Police Department (“NYPD”) for throwing what is described as a firebomb, commonly referred to as “Molotov Cocktail,” into an NYPD van in which there were several police officers — although it did not ignite (Complaint 4). This incident gained wide notoriety through various news and social media outlets (id. 7). The Samantha Shader that was arrested in connection with the incident is a resident of the Town of Catskill, located in Greene County, New York (id. 5). The plaintiff in this case, Samantha Shader from Ravena, New York, had no connection to the Molotov Cocktail incident except in that she shared the name of the woman arrested (id.
8-9). Nevertheless, she was wrongfully implicated in these events when, on May 30, 2020, defendant Overby was participating in a conversation on Facebook with several other people concerning the protests in Brooklyn and the Shader arrest (id. 11). In the course of the on-line exchange, at 1:56 p.m. defendant posted a photograph of plaintiff taken from her Facebook profile and asserted the following: “For all of the people that make posts criticizing people for burning down their neighborhoods, this is Samantha Shader from upstate New York. A woman named Samantha Shader was arrested for throwing a Molotov Cocktail at a police vehicle in Brooklyn during a peaceful protest over the death of George Floyd. Samantha Shader is not from Brooklyn. Read the story below: https://readsector.com/two-sister-could-face attempted mu…/ A woman from upstate New York who allegedly threw a Molotov cocktail at an occupied police cruiser during protests in Brooklyn on Friday night has been charged with four counts of attempted murder. Samantha Shader, 27, is accused of throwing the cocktail at the NYPD vehicle, which had four officers inside, shortly after 10:30 pm as it was stationed near the Brooklyn Museum. The lit bottle did not explode, and no officers were injured. According to a statement provided to DailyMail.com Saturday, the NYPD officers subsequently exited the cruiser and attempted to arrest Shader, who allegedly bit one of them on the leg” (Complaint 14). The public conversation on defendant’s Facebook page continued: “Ceo Sid: I could be wrong but, If I’m not mistaken this woman doesn’t have many Black friends or any mixed[-]race children. If that’s correct, then my question is what was her real reason for traveling to Brooklyn for the protest? It’s one thing to show up to support the people that are rallying but showing up to start chaos is [a] separate agenda. Latricia A. Dailey: Ceo Sid so more of us could get killed. O.L. Weaver: Trying to ignite a race war. Wendy R. Austin: Are you sure this is the right Samantha? I looked at her profile and she doesn’t seem like a leftist freak. Ceo Sid: This is Samantha Shader from Ravena, New York. Ceo Sid: The question I ask still remains to be answered: Why travel from upstate New York to Brooklyn to start chaos? What agenda does that serve? Wendy R. Austin: Ceo Sid how about this chick? [here Wendy R. Austin actually posts a Facebook page address for Samantha Shader of Catskill, New York…] Ceo Sid: Wendy R. Austin It’s possible. But again, the question is what was she invested in that ma[d]e her travel from upstate to Brooklyn to cause chaos? Wendy R. Austin: Ceo Sid it’s what leftist revolutionaries do. Ceo Sid: You’re right. the sad thing about it is that the peaceful protestors that live in Brooklyn (many of which are ‘African American’) will get blamed in the eyes of society, especially since the news outlets that are reporting it aren’t posting her picture. Katie O’Reilly: Ceo Sid wrong girl. Ceo Sid: Katie O’Reilly Thank you for that. Please post a pic[ture] of the right girl” (Complaint
