`FILED: KINGS COUNTY CLERK 12/21/2020 01:04 PMFILED: KINGS COUNTY CLERK 07/09/2021 11:57 AM
`FILED: KINGS COUNTY CLERK 02.20an 01:64 :
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`NYSCEF DOC. NO. 68
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`R«C«IV«D NYSCEF: 02/09/2020
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`RECEIVED NYSCEF: 12/21/2020RECEIVED NYSCEF: 07/09/2021
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`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF KINGS : PART 9
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`JOYCI BOROVSKY and HOUSE OF KAVA |NC.,
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`Plaintiffs,
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`-against-
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`VANESSA LOPEZ,
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`Defendant.
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`X
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`DECISION I ORDER
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`Index No. 516318l2019
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`Motion Seq. No. 2
`Date Submitted: 10/05/2020
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`Recitation, as required by CPLR 2219 (a), of the papers considered in the review of defendant’s
`motion to dismiss.
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`Papers
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`NYSCEF Doc.
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`Notice of Motion, Affirmations, Affidavits, and Exhibits Annexed...
`Affirmation in Opposition and Exhibits Annexed .....................................
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`40-42
`44—45
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`Upon the foregoing cited papers, the Decision/Order on this application is
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`as follows:
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`Plaintiff House of Kava Inc. (”HOK”) is a New York corporation which operated a
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`bar that served “kava-derived products as a health alternative to alcoholic beverages” in
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`Brooklyn, New York. Plaintiff Borovsky allegedly formed, owned and operated HOK in
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`2016 with her partner, non-party Grant Roberts.
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`In December 2017, Borovsky and
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`defendant Lopez met at HOK and became friends.
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`In early 2018, defendant invested
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`with plaintiff, purchasing a 20% ownership stake in a new business venture, a kava bar
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`to be opened in Miami (“HOK Miami”).1
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`1 According to the Florida Division of Corporations’ public website, non-party House of Kava
`Miami Inc. was established February 6, 2018. Roberts is identified as its president, vice
`president, and agent; Borovsky is listed as its president and secretary and Lopez is listed as the
`chairman and secretary.
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`FILED: KINGS COUNTY CLERK 12/21/2020 01:04 PMFILED: KINGS COUNTY CLERK 07/09/2021 11:57 AM
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`RnCfiIVfiD \IYSCEF:
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`RECEIVED NYSCEF: 12/21/2020RECEIVED NYSCEF: 07/09/2021
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`Shortly thereafter, in April 2018, defendant was hired to serve as the general
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`manager of the Brooklyn HOK. Annexed as Exhibit A to the amended complaint (E-File
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`Doc 33) is a “NON-DISCLOSURE AGREEMENT/Employment Contract” (“NDA”), dated
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`March 27, 2018,, which was purportedly executed by defendant Lopez (as the
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`employee), Borovsky (as the “Owner” of HOK and HOK Miami), and Roberts (as the
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`“Witness”).
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`In June 2019, Borovsky allegedly received a phone call from HOK’s landlord
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`(Brooklyn) indicating that the City of New York had issued a violation for “the amount of
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`trash and rats discovered” during an inspection. Borovsky then reported this to
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`defendant, who allegedly responded, “that is not my job" and she then asked for a raise,
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`“especially if Borovsky wanted defendant to clean up the garbage.” Defendant
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`ultimately “resigned” from her position as manager of HOK [Brooklyn] on Tuesday, July
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`2, 2019.
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`When defendant Lopez resigned as general manager of HOK Brooklyn,
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`“Borovsky determined .
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`.
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`. to temporarily close HOK .
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`.
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`. so that [she] could” open HOK
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`Miami before returning to New York. HOK [Brooklyn] then allegedly laid off the entire
`ll
`staff, who Borovsky claims were all defendant’s “friends and roommates. Defendant
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`Lopez then allegedly “created a fake business lnstagram account, which made a
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`purported parody of Borovsky and HOK,” for the “sole purpose of diminishing HOK’s
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`customer base and tarnish[ing][ Borovsky’s] reputation in the community.” Plaintiffs
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`allege that defendant used this fake social media account to “spread lies and derision
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`about Plaintiffs” and to “commit copyright infringement” which was a breach of the NDA.
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`2222””,
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`FILED: KINGS COUNTY CLERK 12/21/2020 01:04 PMFILED: KINGS COUNTY CLERK 07/09/2021 11:57 AM
`FILED: KINGS COUNTY CLERK m2-202m mlzan :
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`NYSCEF DOC. NO. 68
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`NYSCEF DOC. NO. 48NYSCEF DOC. NO. 66
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`R«C«IV«D VYSCEF: m2/99/202m
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`RECEIVED NYSCEF: 12/21/2020RECEIVED NYSCEF: 07/09/2021
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`Plaintiffs assert four causes of action, only the first two of which are at issue in
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`this pre-answer motion for partial dismissal of the amended complaint. The first cause of
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`action, for libel per se, asserts that defendant created the fake account, which appears
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`to the public to be an official HOK account, and posted: “If you’re Joyci, you .
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`.
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`. fire all
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`your staff and tell the community to [expletive] off”. Further, the post, “using a witch-type
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`character to mock [Borovsky], as if [Borovsky] were saying [sic], ‘l’m finally free to fire
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`my entire staff and shut down [HOK].’ " (E—File Doc 32 [amended complaint]; see also E-
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`File Doc 35 [purported screenshots of defendant’s allegedly fake HOK account], and
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`Doc 39 [other allegedly disparaging comments on social media]). Plaintiffs allege their
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`“reputation continues to be harmed by Defendant’s false statements because members
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`of community post negative social media posts based on the desultory remarks of
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`Defendant.”
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`ln plaintiff’s second cause of action, they allege that defendant infringed plaintiff’s
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`copyright, pursuant to 17 USC §§ 501 (b) and 106 (5). Plaintiffs argue that they are the
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`legal owner of the exclusive right, under a copyright, of “that certain photograph, which
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`[defendant] has used as part of her profile on social media platforms” in violation of §
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`106(5).
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`Defendant now moves (pre-answer) to dismiss the first and second causes of
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`action in plaintiffs’ amended complaint pursuant to CPLR §§ 3211 (a) (2) and (a) (7).
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`Defendant does not move to dismiss the third or fourth causes of action (unfair
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`competition and breach of the NDA) in the amended complaint.
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`Defendant argues that plaintiffs have not demonstrated a claim for
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`libel/defamation, as a matter of law, because the complaint does not allege statements
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`that a reasonable person would believe are factual, as opposed to opinion, given that
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`..,..-__-... -..... .
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`FILED: KINGS COUNTY CLERK 12/21/2020 01:04 PMFILED: KINGS COUNTY CLERK 07/09/2021 11:57 AM
`FILED: KINGS COUNTY CLERK [DZ-202“) “11:54 :
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`NYSCEF DOC. NO. 68
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`NYSCEF DOC. NO. 48NYSCEF DOC. NO. 66
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`516318/2019
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`the statements were made in the context of internet/social media communications, and
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`because plaintiffs "fail[] to allege statements which a reasonable person would believe
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`to be fact" because the plaintiffs themselves characterize the lnstagram account as a
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`“parody account.”
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`With regard to the cause of action for copyright infringement, defendant argues
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`that the “exclusive privilege of first publishing any original material product of intellectual
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`labor” terminates on publication, and that plaintiffs published the photograph at issue
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`prior to defendant’s using the same photo “as part of her profile on social media
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`platforms.”
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`1. Defamation
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`Discussion
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`“The elements of a cause of action for defamation are (a) a false statement that
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`tends to expose a person to public contempt, hatred, ridicule, aversion, or disgrace, (b)
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`published without privilege or authorization to a third party, (0) amounting to fault as
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`judged by, at a minimum, a negligence standard, and (d) either causing special harm or
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`constituting defamation per se” (Udell v NYP Holdings, Inc., 169 AD3d 954, 955 [2d
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`Dept 2019] [internal quotation marks omitted]). “A libel action will fail even where a
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`substantially true statement contains minor inaccuracies. As only statements alleging
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`facts can be the subject of a defamation action, [a]n expression of pure opinion is not
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`actionable, .
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`.
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`. no matter how vituperative or unreasonable it may be” (id. [internal
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`citations and quotation marks omitted]).
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`“Whether a particular statement constitutes an opinion, or an objective fact is a
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`question of law” (Kasavana v Vela, 172 AD3d 1042, 1045 [2d Dept 2019] [internal
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`citations omitted]). “in distinguishing between facts and opinion, the factors the court
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`FILED: KINGS COUNTY CLERK 12/21/2020 01:04 PMFILED: KINGS COUNTY CLERK 07/09/2021 11:57 AM
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`NYSCEF DOC. NO. 68
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`NYSCEF DOC. NO. 48NYSCEF DOC. NO. 66
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`R«C«IV«D VYSCEF: m2/99/202m
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`RECEIVED NYSCEF: 12/21/2020RECEIVED NYSCEF: 07/09/2021
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`
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`must consider are (1) whether the specific language has a precise meaning that is
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`readily understood, (2) whether the statements are capable of being proven true or
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`false, and (3) whether the context in which the statement appears signals to readers [or
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`listeners] that the statement is likely to be opinion, not fact” (id. [internal citations and
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`quotation marks omitted]). “The essential task is to decide whether the words
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`complained of, considered in the context of the entire communication and of the
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`circumstances in which they were spoken or written, may be reasonably understood as
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`implying the assertion of undisclosed facts justifying the opinion” (id). “Loose, figurative
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`or hyperbolic statements, even if deprecating the plaintiff, are not actionable” (Jacobus v
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`Trump, 55 Misc 3d 470, 475 [Sup Ct 2017], affd 156 AD3d 452 [1st Dept 2017]).
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`In considering defamation claims involving the internet and social media, New
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`York Courts have noted that “[t]he culture of Internet communications[] .
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`.
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`. has been
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`characterized as encouraging a freewheeling, anything—goes writing style” (id. [internal
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`quotation marks omitted]; see eg. LeB/anc v Skinner, 103 AD3d 202, 213 [2d Dept
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`2012]). Therefore, “epithets, fiery rhetoric or hyperbole advanced on social media have
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`been held to warrant an understanding that the statements contained therein are
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`vigorous expressions of personal opinion, rather than the rigorous and comprehensive
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`presentation of factual matter” (Jacobus, 55 Misc 3d at 475 [internal quotation marks
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`and citations omitted]). Thus, “New York courts have consistently protected statements
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`made in online forums as statements of opinion rather than fact” (Bel/avia Blatt &
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`Crossett, P. C. v Kel & Partners LLC, 151 F Supp 3d 287, 295 [ED NY 2015] [citations
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`omitted]; see also Matter of Woodbridge Structured Funding, LLC v Pissed
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`Consumer, 125 AD3d 508, 509 [1st Dept 2015] [finding that disgruntled tone and use of
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`statements on consumer grievance website that cannot be definitively proven true or
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`"WM“.WWWWWD-,2,2,,
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`5 O f 8
`5 of 8
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`FILED: KINGS COUNTY CLERK 12/21/2020 01:04 PMFILED: KINGS COUNTY CLERK 07/09/2021 11:57 AM
`FILED: KINGS COUNTY CLERK [DZ-202“) “11:54 :
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`NYSCEF DOC. NO. 68
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`NYSCEF DOC. NO. 48NYSCEF DOC. NO. 66
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`516318/2019
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`INDEX NO'
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`false, support finding [that] challenged statements constitute nonactionable opinion]).
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`“[R]eaders give less credence to allegedly defamatory remarks published on the
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`Internet than to similar remarks made in other contexts” (Sandals Resorts Intl. Ltd. v
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`Goog/e, Inc., 86 AD3d 32, 44 [1 st Dept2011] [noting that “bulletin boards and chat
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`rooms are often the repository of a wide range of casual, emotive, and imprecise
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`speech?)
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`In deciding a motion to dismiss a claim of defamation, the court must decide
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`whether the statements, considered in the context of the entire publication, are
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`reasonably susceptible of a defamatory connotation such that the issue is worthy of
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`submission to a jury (Konig v WordPress. com, 112 AD3d 936, 937 [2d Dept 2013] ["to
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`survive a motion to dismiss, a defamation plaintiff need only meet the minimal standard
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`of pointing to any reasonable view of the stated facts that would permit recovery"]).
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`The allegations in the amended complaint and annexed exhibits assert that
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`defendant said, in online social media posts and comments, that Borovsky is
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`unprofessional, fired her entire staff, and was disrespectful to HOK’s “community.”
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`Such statements are either clearly statements of opinion or statements of admitted facts
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`and are not actionable as a matter of law. First, Borovsky admits that HOK fired its
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`entire staff in Brooklyn, and truth is an absolute defense to a claim of libel. Further,
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`viewing the alleged statements in the context in which they were made, a reasonable
`person would understand that defendant was asserting her opinion of Borovsky and/or
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`parodying Borovsky and HOK. The statements defendant Lopez allegedly made
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`constitute, at most, “epithets, fiery rhetoric or hyperbole advanced on social media .
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`.
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`.
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`[and] the statements contained therein are vigorous expressions of personal opinion,
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`MW, WWWWk.“ 7-", WW
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`6 of 8
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`FILED: KINGS COUNTY CLERK 12/21/2020 01:04 PMFILED: KINGS COUNTY CLERK 07/09/2021 11:57 AM
`FILED: KINGS COUNTY CLERK [DZ-202“) “11:54 :
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`NYSCEF DOC. NO. 68
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`NYSCEF DOC. NO. 48NYSCEF DOC. NO. 66
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`rather than the rigorous and comprehensive presentation of factual matter” (Jacobus, 55
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`Misc 3d at 475 [internal quotation marks and citations omitted]).
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`Additionally, HOK (the corporation) does not state a claim for libel per 86.2 While
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`a corporation can have a cause of action for defamation (see e.g. 600 West 115th
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`Street Corp. v Von Gutfe/d, 169 AD2d 56 [1st Dept 1991], revd on other grounds, 80
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`NY2d 130 [1992]), the amended complaint asserts that HOK is a defunct business that
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`Borovsky closed when defendant resigned as its manager (E-File Doc 32, 111] 37—39).
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`Accordingly, the first cause of action asserted by the plaintiffs, for libel per se, is
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`dismissed.
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`2. Copyright infringement
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`Defendant argues that the copyright infringement claim, involving a “certain
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`photograph [Borovsky] has published on social media platforms,” must be dismissed
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`because it asserts common law copyright infringement for which the "exclusive privilege
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`of first publishing any original material product of intellectual labor” terminates upon
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`publication (see A. J. Sandy, Inc. er. City, Inc., 17 AD2d 407, 409 [1st Dept 1962]).
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`Defendant argues that, under the common law, plaintiffs no longer have copyright
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`privileges because they admittedly previously published the image.
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`While plaintiffs allege that a “certain photograph” was created by Borovsky and
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`unauthorizedly used by defendant in connection with the “parody" HOK social media
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`account, plaintiffs do not clarify which photograph they refer to. Presumably it is the
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`HOK logo image that, seemingly, both the real (now defunct) and “parody" social media
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`accounts used as their profile picture (E-File Docs 35 and 36, a drawing of a pineapple,
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`2 in any event, the amended complaint appears to make a defamation claim only on behalf of
`Borovsky.
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`FILED: KINGS COUNTY CLERK 12/21/2020 01:04 PMFILED: KINGS COUNTY CLERK 07/09/2021 11:57 AM
`FILED: KINGS COUNTY CLERK [DZ-202“) “11:54 :
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`NYSCEF DOC. NO. 68
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`NYSCEF DOC. NO. 48NYSCEF DOC. NO. 66
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`with “House of Kava" written across it). This is not a photograph, nor is it a work of art;
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`rather it is,
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`if anything, a business trade name, which might have been entitled to be
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`trademarked, and a logo design, which also might have been able to have been
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`trademarked, if it had been registered with the United States Office of Patents and
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`Trademarks. Plaintiffs do not assert that they have a wordmark or trademark interest in
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`the item and, thus they are not entitled to relief pursuant to their second cause of action
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`for copyright infringement.
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`Accordingly, it is ORDERED that defendant’s motion to dismiss the first and
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`second causes of action in the complaint is granted.
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`IT IS FURTHER ORDERED that the defendant shall serve an answer to the
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`amended complaint within 30 days.
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`Any other relief requested is denied. This shall constitute the decision and order
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`of the court.
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`Dated: December 21, 2020
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`E N T E R :
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`Hon. Debra Silber, J.S.C.
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`“MW ,
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