The following numbered papers read on this motion by defendants to dismiss. PAPERS NUMBERED Amended Notice of Motion-Affidavits-Exhibits EF 36-62 Answering Affidavits-Exhibits EF 64- 66 Reply EF 67-68 Upon the foregoing cited papers, and after Microsoft Teams conference, it is ordered that defendants’ motion to dismiss plaintiffs’ complaint pursuant to CPLR 3211(a)(7) for failure to state a cause of action for defamation and tortious interference with prospective business relations, and for an award of sanctions pursuant to NYCRR §130-1.1, is determined as follows: This action was commenced by summons and verified complaint on December 15, 2021. On February 4, 2022, defendants, Back of the Net, LTD. (“BOTN”) and Lawrence Miller (“Miller”) moved to dismiss this action pursuant to CPLR 3211(a)(7) and for sanctions pursuant to NYCRR §130.1-1. Subsequently, on February 23, 2022, plaintiffs, SUSA Soccer Training, LLC (“SUSA”) and John Balzarini (“Balzarini”) filed an amended verified complaint including causes of action for defamation and tortious interference with prospective business relations and seeking an order directing defendants to remove allegedly defamatory statements from their internet forum. In response, on March 18, 2022, defendants filed an amended notice of motion seeking the relief requested in their prior motion.1 The following facts, taken from the complaint, are presumed for the purposes of the motion to dismiss, to be true (see Joseph v. Fensterman, 204 AD3d 766 [2nd Dept. 2022]). SUSA is one of New York’s largest soccer academies operating programs for children ages 2-18 throughout Nassau and Suffolk Counties. Balzarini has been employed by SUSA, since 2016, as the Girl’s Technical Director of Soccer Operations. Prior to Balzarini’s employment with SUSA, he was employed as a math teacher at the Miller Place Union Free School District (“Miller Place”). Balzarini voluntarily resigned from Miller Place in 2012 to coach soccer year-round. Defendant BOTN is an advertising company promoting soccer entities and events. BOTN also operates an internet forum used for public discussion, generally around local soccer news, league schedules and tournaments. Miller owns and operates BOTN and regularly engages in dialogue with his readers through its internet forum. Commencing in August 2021, Miller published malicious and false public statements on BOTN’s internet forum stating Balzarini resigned from Miller Place based upon sexual improprieties with former students. On BOTN’s internet forum, Miller also states that SUSA knowingly hires and retains employees, including Balzarini, who engaged in inappropriate conduct. The complaint alleges that the statements have been viewed by thousands of people causing irreparable harm to plaintiffs. The complaint further alleges that the statements are intended for the sole purpose of harming plaintiffs and that the average BOTN reader who is familiar with the parties and subject matter will interpret the posts negatively toward plaintiffs constituting defamation per se. Defamation is defined as the making of a false statement which tends to expose a person to hatred, contempt or aversion, or induces an evil or unsavory opinion in the minds of the community (see Obi v. Amoa, 58 Misc3d 446 [Sup Ct, Kings County, 2017]). To state a cause of action for defamation, a complaint must allege the defendant published a false statement, without privilege or authorization, to a third party causing special harm or constituting defamation per se (see Rosner v. Amazon.com, 132 AD3d 835 [2nd Dept 2015]). A false statement constitutes defamation per se when it injures a person in his or her trade, business, or profession (see Matter of Konig v. Word Press.com,112 AD3d 936 [2nd Dept 2013]). A necessary element of a defamation claim is that the statement must be capable of being proven true or false (see Kamchi v. Weissman, 125 AD3d 142 [2nd Dept 2014]). When determining whether a publication is defamatory, the court will construe the statements in their ordinary meaning as perceived by the average reader (see Obi at 451). Whether a particular statement constitutes defamation presents a legal question to be resolved by the Court in the first instance (see Aronson v. Wiersma, 65 NY2d 592 [1985]). To maintain a cause of action for defamation, CPLR 3016(a) requires the pleading contain the particular words complained of, the time, place and manner in which the statement was made and to whom the statement was made (see Tsatskin v. Jordonsky, 189 AD3d 1296 [2nd Dept 2020]). On a motion to dismiss, the legal question for the court to determine is whether the contested statement is reasonably susceptible of a defamatory connotation. If so, it is the jury’s function to decide how the words were understood by the ordinary reader (see Knutt v. Metro Intern, S.A., 91 AD3d 915 [2nd Dept 2012]). Here, the complaint alleges that Miller published comments, on BOTN’s internet forum, to its third-party audience, without authorization. Examples reiterated in the complaint and published by Miller on BOTN’s internet forum are as follows: “JR is reputable? JR is a defrocked tenured HS math teacher2;” “Think about this…[w]ith all the money poured into susa by Glenn Schneider, and all the money flowing in from all you ATM Machines, if what I am saying wasn’t true I would be, along with BOTN sued for libel and slander. No lawsuits regarding…what I have repeatedly said about JR Balzarini have generated any litigation, Why? Because it is all true and truth is an absolute defense against libel and slander;” “exposing some of the nefarious characters praying on the kids and having a [****] load of fun at the same time”. Additional threads exist on BOTN’s internet forum which state Balzarini was forced to retire from Miller Place based upon his unsavory sexual conduct. Likewise, BOTN’s internet forum contains additional threads which aver Miller repeatedly informed SUSA of Balzarini’s inappropriate sexual conduct, however, SUSA turned a blind eye endorsing this behavior. Miller repeatedly states in his posts that he has documentation to support his statements. In support of defendants’ motion to dismiss, Miller argues that even if his statements are deemed defamatory, such statements are protected by New York’s common-interest privilege. The common-interest privilege exists when a person makes a bona fide communication upon a subject in which he and the recipient both have an interest (see Franco Belli Plumbing & Heating & Sons, Inc. v. Dimino, 163 AD3d 1309 [2nd Dept 2018]). However, when a plaintiff can demonstrate the communication was motivated by malice, the common-interest privilege is inapplicable (see Rosenberg v. MetLife Inc., 8 NY3d 359 [2007]). Here, this Court finds the statements reasonably susceptible of a defamatory connotation. The complaint sufficiently specifies the time, place and manner of each statement and to whom the statements were made in accordance with the requirements of CPLR 3016(a). This Court concludes that the statements published by Miller, tended to expose plaintiffs to unsavory opinions in the minds of the soccer community. This Court rejects defendants’ common-interest argument. Plaintiffs have overcome, at this stage of the proceeding, Miller’s invocation of the common-interest privilege based upon their allegation of malice (see Ferrara v. Esquire Bank, 153 AD3d 671 [2nd Dept 2017]). Thus, based upon the foregoing, defendants’ motion to dismiss plaintiffs’ cause of action for defamation, based upon their failure to state a cause of action pursuant to CPLR 3211(a)(7), is denied. Plaintiffs have failed to oppose defendants’ motion to dismiss their third cause of action for tortious interference with prospective business relations. Accordingly, defendants’ motion to dismiss this cause of action is granted. Even assuming plaintiffs properly opposed the motion, plaintiffs fail to establish a cause of action for tortious interference with prospective business relations. The complaint clearly lacks allegations of prospective business relations, with third parties, that defendants knew of, and intentionally interfered with, by wrongful means, for the purpose of harming SUSA (see Law Offices of Ira H. Leibowitz v. Landmark Ventures, Inc.,131 AD3d 583 [2nd Dept 2015]). SUSA’s bare conclusory statements are insufficient to support a cause of action for tortious interference with prospective business relations as mere generalized allegations of reputational harm are not enough to constitute injury (see Amaranth LLC v. J.P. Moran & Chase Co., 71 AD3d 40 [1st Dept 2009]). Thus, defendants’ motion to dismiss plaintiffs’ cause of action for tortious interference with prospective business relations is granted. Defendants’ motion to dismiss plaintiffs’ cause of action for an order directing defendants to remove the allegedly defamatory statements from BOTN’s internet forum is premature. There has been no determination, as of yet, that Miller’s statements constitute defamation. Until such determination is made, this Court will not issue a declaratory judgment. Thus, defendants’ motion to dismiss this cause of action is denied without prejudice. Defendants also ask this Court for an award of sanctions pursuant to 22 NYCRR §130-1.1. Such award is in the discretion of the court and granted only when a party engages in willful and frivolous conduct. As stated above, defendants fail to prove this action was commenced without a basis in fact or law or to harass, intimidate or punish them. Thus, plaintiffs did not engage in frivolous conduct and defendants are not entitled to an award of sanctions pursuant to 22 NYCRR §130-1.1. Accordingly, it is ORDERED that defendants’ motion pursuant to CPLR 3211(a)(7) to dismiss the complaint is granted to the extent of dismissing plaintiffs’ third cause of action for tortious interference of prospective business relations and otherwise denied or denied without prejudice; and it is further ORDERED that all requests for relief not addressed herein are denied. This constitutes the decision and order of the Court. Dated: November 3, 2022
