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`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTYOF KINGS : PART 9
`
`JOYCI BOROVSKY and HOUSE OF KAVAINC.,
`
`Plaintiffs,
`
`-against-
`
`VANESSA LOPEZ,
`
`Defendant.
`
`X
`
`DECISION / ORDER
`
`Index No. 516318/2019
`Motion Seq. No. 2
`Date Submitted: 10/05/2020
`
`as
`required by CPLR 2219 (a), of the papers considered in the review of defendant’s
`Recitation,
`motion to dismiss.
`
`Papers
`
`NYSCEFDoc.
`
`Notice of Motion, Affirmations, Affidavits, and Exhibits Annexed..........
`Affirmation in Opposition and Exhibits Annexed.........0.00.cccceeeceeeeeceeees
`
`40-42
`44-45
`
`Upon the foregoing cited papers, the Decision/Orderon this application is
`
`as follows:
`
`Plaintiff House of Kava Inc. (“HOK’) is a New York corporation which operated
`
`a
`
`bar that served “kava-derived products
`
`as a health alternative to alcoholic beverages”in
`
`Brooklyn, New York. Plaintiff Borovsky allegedly formed, owned and operated HOK in
`
`2016 with her partner, non-party Grant Roberts.
`
`in December 2017, Borovsky
`
`and
`
`defendant Lopez met at HOK and became friends.
`
`In early 2018, defendant invested
`
`with plaintiff, purchasing
`
`a 20% ownership stake in a new business venture,
`
`a kava bar
`
`to be opened in Miami (“HOK Miami’).
`
`'‘
`
`According to the Florida Division of Corporations’ public website, non-party House of Kava
`Miami Inc. was established February 6, 2018. Robertsis identified as its president, vice
`president, and agent; Borovskyis listed as its president and secretary and Lopezis listed as the
`chairman and secretary.
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`Shortly thereafter, in
`
`April 2018, defendant was hired to serve as the
`
`general
`
`manager of the Brooklyn HOK. Annexed as Exhibit A to the amended complaint (E-File
`Doc 33) is a “NON-DISCLOSURE AGREEMENT/Employment Contract” (“NDA”), dated
`
`March 27, 2018, which was
`
`purportedly executed by defendant Lopez (as the
`
`employee), Borovsky (as the “Owner” of HOK and HOK Miami), and Roberts (as the
`
`“Witness’).
`
`In June 2019, Borovsky allegedly received a
`
`phone call from HOK’s landlord
`
`(Brooklyn) indicating that the City of New York had issued a violation for “the amount of
`
`trash and rats discovered” during
`
`an
`
`inspection. Borovsky then reported this to
`
`defendant, who allegedly responded, “that is not my job” and she then asked for a
`
`raise,
`
`“especially if Borovsky wanted defendantto clean up the garbage.” Defendant
`as manager of HOK [Brooklyn]
`
`on
`
`Tuesday, July
`
`ultimately “resigned” from her position
`
`2, 2019.
`
`When defendant Lopez resigned
`.
`.
`.
`
`“Borovsky determined
`
`as
`
`general manager of HOK Brooklyn,
`.
`.
`.
`
`so that [she] could” open HOK
`
`to temporarily close HOK
`
`Miami before
`
`returning
`
`to New York. HOK
`
`[Brooklyn] then allegedly laid off the entire
`
`staff, who Borovsky claims were all defendant's “friends and roommates.” Defendant
`
`Lopez then allegedly “created a fake business Instagram account, which made a
`
`purported parody of Borovsky
`
`and HOK,”for the “sole purpose of diminishing HOK’s
`
`customer base and tarnish[ing][ Borovsky’s] reputation in the community.” Plaintiffs
`
`allege that defendant used this fake social media account to “spread lies and derision
`
`about Plaintiffs” and to “commit copyright infringement’ which was a breach of the NDA.
`
`cee inne
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`Plaintiffs assert four causes of action, only the first two of which are at issue in
`
`this pre-answer motion for partial dismissal of the amended complaint.
`
`The first cause of
`
`action, for libel per se, asserts that defendant created the fake account, which appears
`.
`.
`.
`
`to the public to be an official HOK account, and posted: “If you're Joyci, you
`
`fire all
`
`your staff and tell the community to [expletive] off’. Further, the post, “using
`
`a
`
`witch-type
`
`character to mock
`
`[Borovsky],
`
`asif
`
`[Borovsky]
`
`were
`
`saying[sic], ‘I’m
`
`finally
`
`free to fire
`
`my entire staff and shut down [HOK].’” (E-File Doc 32 [amended complaint];
`
`see a/so E-
`
`File Doc 35 [purported screenshots of defendant's allegedly fake HOK account], and
`
`Doc 39 [other allegedly disparaging comments on social media]). Plaintiffs allege their
`
`“reputation continues to be harmed by Defendant’s false statements because members
`
`of community post negative social media posts based on the
`
`desultory remarks of
`
`Defendant.”
`
`In plaintiff's second cause of action, they allege that defendant infringed plaintiff's
`
`copyright, pursuant to 17 USC §§ 501 (b) and 106 (5). Plaintiffs argue that they
`
`are the
`
`legal
`
`owner of the exclusive right, under a
`
`copyright, of “that certain photograph, which
`
`[defendant] has used as
`
`part of her profile
`
`on social media platforms’in violation of §
`
`106 (5).
`
`Defendant now moves
`
`(pre-answer) to dismiss the first and second causesof
`
`action in plaintiffs’ amended complaint pursuant to CPLR §§ 3211 (a) (2) and (a) (7).
`
`Defendant does not moveto dismiss the third or fourth causesof action (unfair
`
`competition and breach of the NDA) in the amended complaint.
`
`Defendant argues that plaintiffs have not demonstrated a claim for
`
`libel/defamation,
`
`as a matter of law, because the complaint does not
`
`allege
`
`statements
`
`that a reasonable person would believe are
`
`factual,
`
`as
`
`opposed to opinion, given that
`
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`the statements were made in the context of internet/social media communications, and
`
`becauseplaintiffs “fail[] to allege statements which a reasonable person would believe
`
`to be fact” becausetheplaintiffs themselves characterize the Instagram account as a
`
`“parody account.”
`
`With regard to the cause of action for copyright infringement, defendant argues
`offirst publishing any original material productof intellectual
`that the “exclusive privilege
`labor” terminates on
`publication, and that plaintiffs published the photograph at issue
`
`prior to defendant's using the same
`
`photo “as part of her profile
`
`on social media
`
`platforms.”
`
`1. Defamation
`
`Discussion
`
`“The elements of a cause of action for defamation are
`
`a false statement that
`
`(a)
`tends to expose a person to public contempt, hatred, ridicule, aversion,
`
`disgrace, (b)
`or authorization to a third party, (c) amounting to fault as
`published without privilege
`judged by, at a minimum, a negligence standard, and (d) either causing special harm or
`v NYP Holdings, Inc., 169 AD3d 954, 955 [2d
`
`or
`
`constituting defamation per se” (Udell
`
`Dept 2019] [internal quotation
`
`marks
`
`omitted]).
`
`“A libel action will fail even where a
`
`true statement contains minor inaccuracies. As only statements alleging
`facts can be the subject of a defamation action, [aJn expression of pure opinion is not
`... no matter how vituperative
`
`substantially
`
`actionable,
`
`or unreasonable it may be’(id. [internal
`
`citations and quotation marks omitted]).
`
`“Whether a
`
`particular statement constitutes an
`
`opinion,
`
`or an
`
`objective factis a
`
`question of law” (Kasavana
`
`v
`
`Vela, 172 AD3d 1042, 1045 [2d Dept 2019][internal
`
`citations omitted]).
`
`“In distinguishing between facts and opinion, the factors the court
`
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`must consider are
`
`(1) whether the specific language has a
`
`precise meaning that is
`
`readily understood, (2) whether the statements are
`
`capable of being proven true or
`
`false, and (3) whether the context in which the statement appears signals to readers [or
`
`listeners] that the statementis likely to be opinion, not fact” (id. [internal citations and
`
`quotation marks
`
`omitted]). “The essential task is to decide whether the words
`
`complained of, considered in the context of the entire communication and of the
`
`circumstancesin which they
`
`were
`
`or
`
`spoken
`
`written, may be reasonably understood as
`
`implying the assertion of undisclosed facts justifying the opinion” (id.). “Loose, figurative
`or
`hyperbolic statements, even if deprecating the plaintiff,
`are not actionable” (Jacobus
`v
`
`Trump, 55 Misc 3d 470, 475 [Sup Ct 2017], affd 156 AD3d 452 [1st Dept 2017)).
`
`In considering defamation claims involving the internet and social media, New
`...
`
`York Courts have noted that “[t]he culture of Internet communications[]
`
`has been
`
`characterized as encouraging
`
`a
`
`freewheeling, anything-goes writing style” (id. [internal
`
`quotation marks omitted];
`
`see e.g. LeBlanc v
`
`Skinner, 103 AD3d 202, 213 [2d Dept
`
`2012]). Therefore, “epithets, fiery rhetoric or
`
`hyperbole advanced on social media have
`
`been held to warrant an
`
`understanding that the statements contained therein are
`
`vigorous expressions of personal opinion, rather than the
`rigorous and
`comprehensive
`presentation of factual matter” (Jacobus, 55 Misc 3d at 475
`quotation marks
`
`[internal
`and citations omitted]). Thus, “New York courts have consistently protected statements
`
`made in online forums as statements of opinion rather than fact” (Bellavia Blatt &
`Crossett, P.C. v Kel & Partners LLC, 151 F Supp 3d 287, 295 [ED NY 2015] [citations
`
`omitted];
`
`see also Matter of
`
`Woodbridge Structured Funding, LLC v Pissed
`
`Consumer, 125 AD3d 508, 509 [1st Dept 2015][finding that disgruntled tone and use of
`
`statements on consumer
`
`grievance website that cannot be definitively proven true or
`
`irecenanesitnamnemntcnennetme
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`sneramesanntaetntadrtittnretnninrrnennncennineinshinaene +
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`ie
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`whether the statements, considered in the context of the entire publication,
`reasonably susceptible of a
`submission to a
`
`jury (Konig
`
`defamatory connotation such that the issue is worthy of
`v
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`FILED: KINGS COUNTY CLERK 12/21/2020 01:04 PMFILED: KINGS COUNTY CLERK 08/10/2021 05:20 PM
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`false, support finding [that] challenged statements constitute nonactionable opinion]).
`
`“[R]eaders give less credence to allegedly defamatory remarks published
`Internet than to similar remarks made in other contexts” (Sandals Resorts Intl. Ltd. v
`Google, Inc., 86 AD3d 32, 44 [1st Dept2011] [noting that “bulletin boards and chat
`rooms are often the repository of a wide range of casual, emotive, and imprecise
`
`on the
`
`speech’).
`
`In
`
`deciding
`
`a motion to dismiss a claim of defamation, the court must decide
`
`are
`
`WordPress.com, 112 AD3d 936, 937 [2d Dept 2013] ["to
`a defamation plaintiff need only meet the minimal standard
`of pointing to any reasonable view of the stated facts that would permit recovery")).
`
`survive a motion to dismiss,
`
`The allegations in the amended complaint and annexed exhibits assert that
`
`defendantsaid, in online social media posts and comments, that Borovskyis
`
`unprofessional, fired her entire staff, and was
`
`disrespectful to HOK’s “community.”
`Such statements are either clearly statements of opinion
`and are not actionable as a matter of law. First, Borovsky admits that HOK fired its
`
`or statements of admitted facts
`
`entire staff in Brooklyn, and truth is an absolute defense to a claim oflibel. Further,
`
`a reasonable
`viewing the alleged statements in the context in which they
`was asserting her opinion of Borovsky and/or
`person would understand that
`defendant
`
`made,
`
`were
`
`parodying Borovsky and HOK. The statements defendant Lopez allegedly made
`
`constitute, at most, “epithets, fiery rhetoric or
`
`hyperbole advancedon social media
`
`. .
`
`[and] the statements contained therein are
`
`vigorous expressions of personal opinion,
`
`oeiiee
`
`6 O f 8
`6 of 8
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`rather than the rigorous and comprehensive presentation of factual matter” (Jacobus, 55
`
`Misc 3d at 475 [internal quotation marks and citations omitted)]).
`Additionally, HOK (the corporation) does notstate a claim for libel per se.2 While
`
`a
`
`corporation
`
`can have a cause of action for defamation (see e.g. 600 West 115th
`
`Street Corp.
`
`v Von Gutfeld, 169 AD2d 56 [ist Dept 1991], revd on other grounds, 80
`
`NY 2d 130 [1992]), the amended complaint asserts that HOK is a defunct business that
`
`Borovsky closed when defendant resigned
`
`as its manager (E-File Doc 32, J] 37-39).
`
`Accordingly, the first cause of action asserted by the plaintiffs, for libel per se, is
`
`dismissed.
`
`2.
`
`Copyright Infringement
`
`Defendant argues that the copyright infringement claim, involving
`
`a “certain
`
`on social media platforms,”
`has published
`photograph [Borovsky]
`becauseit asserts common law copyright infringement
`
`for which the “exclusive privilege
`
`must be dismissed
`
`of first publishing any original material productof intellectual labor” terminates upon
`
`publication (see A. J. Sandy, Inc. v Jr. City, Inc., 17 AD2d 407, 409 [1st Dept 1962]).
`
`Defendant argues that, under the common law, plaintiffs
`
`no
`
`longer have copyright
`
`privileges
`
`because they admittedly previously published the image.
`
`While plaintiffs allege that a “certain photograph”
`
`was created by Borovsky and
`
`unauthorizedly used by defendant in connection with the “parody” HOK social media
`
`account, plaintiffs do not
`
`clarify which photograph they refer to.
`
`Presumably it is the
`
`HOK logo image that, seemingly, both the real (now defunct) and “parody” social media
`
`accounts used as their profile picture (E-File Docs 35 and 36,
`
`a
`
`drawing of a
`
`pineapple,
`
`2
`
`In any event, the amended complaint appears to make a defamation claim only
`Borovsky.
`
`on behalf of
`
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`with “House of Kava’ written across
`
`it). This is not a
`
`photograph, nor is it a work ofart;
`
`rather it is,
`
`if anything,
`
`a business trade name, which might have beenentitled to be
`
`trademarked, and a
`
`logo design, which also might have been able to have been
`
`trademarked, if it had been registered with the United States Office of Patents and
`
`Trademarks. Plaintiffs do not assert that they have a wordmarkor trademarkinterest in
`are not entitled to relief pursuant to their second causeof action
`the item and, thus they
`
`for copyright infringement.
`
`Accordingly, it is ORDERED that defendant's motion to dismiss the first and
`
`second causesof action in the complaint is granted.
`
`IT IS FURTHER ORDERED thatthe defendant shall serve an answer to the
`
`amended complaint within 30 days.
`
`Any other relief requested is denied. This shall constitute the decision and order
`
`of the court.
`
`Dated: December 21, 2020
`
`ENTER:
`
`Hon. Debra Silber, J.S.C.
`
`es trnemanaenartentnntirntnemeanentreasiest etn
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`8 O f 8
`8 of 8
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