D: NEW YORK : INDEX NO. 152284/2025
`NYSCEF DOC. NO. 68 RECEIVED NYSCEF: 06/17/2026
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`SUPREME COURT OF THE STATE OF NEW YORK,
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`COUNTY OF NEW YORK
`X Index No.: 152284/2025
`JENIFER AN,
`Plaintiff,
`Honorable Leslie A. Stroth
`-against-
`
`(Motion Seq. 003)
`KANYE WEST a/k/a YE, individually,
`
`Defendant.
`
`PLAINTIFF’S SUR-REPLY BRIEF IN OPPOSITION TO DEFENDANT’S MOTION TO
`DISMISS THE SECOND AMENDED COMPLAINT PURSUANT TO THE
`CPLR 3211(a)(7) AND (g) AND CIVIL RIGHTS LAW §§ 70-a, 76-a
`
`Arcé Law Group, P.C.
`Attorneys for Plaintiff
`45 Broadway, Suite 2810
`New York, NY 10006
`(212) 248-0120
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`INDEX NO. 152284/2025
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`NYSCEF DOC. NO. 68
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`RECEIVED NYSCEF: 06/17/2026
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`TABLE OF CONTENTS
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`TABLE OF AUTHORITIES... cc eecceceeceeseeeseseeeesecesecseesseesseceeeeseceseceeesaeceaeeeeeeaeseseseeeeeeeaeeeeeeaees ill
`PRELIMINARY STATEMENT. .........::ccccessceseeeseeseeeseseceesecesecseeesecesecaeeesecesecseeeaeceseseeeaeseaeeeeeaeeaees 1
`LEGAL STANDARD 2.0... ecceecccesesseeeseeeeeesecesecseeesecseseeeesecaecseeeseceseceeeaecesecseeesecetesteeaeeeseeeeeeaeeaees 1
`ARGUMENT 0... cecccccescesseesecesecceesecesessceeseceaecseessecaecseeeseceaecseesaeccecseeesecesecseeeaeceseseeeeaeceseeneeeaeeaees 1
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`I. Plaintiff Has Established A Substantial Basis In Law ....0....ceececcceeeceeeseeeseeeeteeeeeeeeeeeseeenes 1
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`II. In The Alternative, Targeted CPLR 3211(D) Discovery Is Appropriate..............cccceeees 4
`CONCLUSION... eceeccesesscesseeseeeseceseeeessecesecceesecesecseeesecesecsecesecesecseeeseceaeeseeeaeceresseeeaeseeeeaeeeaeeaaenas 5
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`il
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`NYSCEF DOC. NO. 68 RECEIVED NYSCEF: 06/17/2026
`TABLE OF AUTHORITIES
`Cases
`Haart v. Scaglia, 2023 N.Y. Misc. LEXIS 1238 (Sup. Ct. N.Y. County 2023)... .eceeeeeeseeereeeee 2
`Irizarry v. Zelaya, 244 A.D.3d 591 (18 Dep’t 2025).....cccecccscsccscsscsccscsscsecscesssecsecssecsecsteasseesteas 2,3
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`Miller v. Appadurai, 2022 NY Slip Op 30368(U), 2022 N.Y. Misc. LEXIS 539 [Sup Ct, N.Y.
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`County 2022] ...ceececceeccesceeeeseceseceseeseceseceeeeseeesecseeeseeeseceeeseceseceeeseceaeseeeeeeeaeceeeeeesseseeeeeeeaeeneeeas 4
`Reeves v. Associated Newspapers, Ltd., 232 A.D.3d 10 (1st Dept. 2024) ..... ee eeeeeesteeeeees 1,2,4
`Smartmatic USA Corp. v. Fox Corp., 213 A.D.3d 512 (1st Dept. 2023) oo... ee eccceeeseeesteeeeteeeees 1
`Statutes
`CPLR 3211(G) ...cceceescesseesceseeeseeeeeesecesecsceesecesecseeeseceaecseessecaecseceaecaecaeeesecesesseeeseceeeeseceaeseseeeeeaeenseeas 2
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`NYSCEF DOC. NO. 68 RECEIVED NYSCEF: 06/17/2026
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`PRELIMINARY STATEMENT
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`Plaintiff, Jenifer An (‘Plaintiff’), respectfully submits this Sur-Reply in response to
`Defendant Kanye West a/k/a Ye’s (“West”) Reply. NYSCEF No. 65. In his Reply, Defendant
`argued that the evidence submitted in Plaintiff's Opposition to his Motion to Dismiss
`(“Opposition’’) fails to establish a substantial basis in law under CPLR 3211(g). Jd. 49. In doing
`so, Defendant fundamentally misstates Plaintiff’s burden under CPLR 3211(g), effectively asking
`the Court to apply a trial-level admissibility standard to evidence that Plaintiff presented in her
`Opposition. NYSCEF No. 62. Notably, Defendant does not cite any authority to support this
`heightened evidentiary requirement.
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`As set forth below, Plaintiff’s Second Amended Complaint (“SAC”), together with the
`evidentiary materials submitted herein, and in the Opposition, more than satisfy that standard.
`NYSCEF No. 43.
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`LEGAL STANDARD
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`Under CPLR 3211(g), Defendant bears the initial burden of demonstrating that Plaintiff’s
`claims fall within the anti-SLAPP statute. Only if Defendant satisfies that burden must Plaintiff
`demonstrate that her claims possess a substantial basis in law, which requires, “such relevant proof
`as a reasonable mind may accept as adequate to support a conclusion or ultimate fact.” Smartmatic
`USA Corp. v. Fox Corp., 213 A.D.3d 512 (1st Dept. 2023); Reeves v. Associated Newspapers, Ltd.,
`232 A.D.3d 10 (1st Dept. 2024).
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`ARGUMENT
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`I Plaintiff Has Established A Substantial Basis In Law
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`While the substantial basis standard is a heightened inquiry, it does not require a plaintiff
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`to prove her claims through evidence admissible in trial form. Importantly, CPLR 3211(g)
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`expressly contemplates consideration of affidavits and other evidentiary materials that are not trial-
`admissible:
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`“In making its determination on a motion to dismiss made pursuant to
`paragraph one of this subdivision, the court shall consider the pleadings, and
`supporting and opposing affidavits stating the facts upon which the action or
`defense is based.”
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`CPLR 3211(g)(2).
`
`The First Department has explained that the substantial basis inquiry is “more exacting
`than the liberal pleading standard applicable to ordinary CPLR 3211(a)(7) motions,” requiring
`courts to assess whether the record demonstrates a sufficient legal and factual basis to proceed.
`Reeves, 232 A.D.3d at 24. In fact, materials which “may not be admissible at trial” may
`nevertheless “be considered, together with the admissible evidence,” in opposition to a CPLR
`3211(g) motion. Jrizarry v. Zelaya, 244 A.D.3d 591, 593 (1st Dept. 2025). Thus, the inquiry is
`not whether each submission independently satisfies trial evidentiary standards, but whether the
`record, as a whole, provides sufficient factual support to establish a substantial basis in law.
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`Here, Plaintiff submitted multiple documents in support of her Opposition, including sworn
`witness statements, investigative materials, and contemporaneous Instagram messages. NYSCEF
`No. 62, Ex. A-D.
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`First, Plaintiff submitted a signed witness statement from Liz Martins, a member of the
`music video set who personally observed Defendant place his fingers into Plaintiff’s mouth and
`direct her to “suck” them during filming. NYSCEF No. 62, Ex. A. Defendant’s attempt to dismiss
`this testimony as “conclusory” mischaracterizes both the statement, and the governing standard.
`Ms. Martins provided first-hand factual observations that directly corroborate Plaintiff’s
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`allegations. See Haart v. Scaglia, 2023 N.Y. Misc. LEXIS 1238, at 13, 16 (Sup. Ct. N.Y. County
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`2023) (considering affidavits, transcripts, court filings, text messages, and other documentary
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`evidence in determining whether plaintiff established a substantial basis in law under CPLR
`3211(g)). Although Defendant does not agree with the substance of Ms. Martins’ statement, that
`does not render the affidavit inadmissible to prove that Plaintiff’s claims have a substantial basis
`in law.
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`Second, Plaintiff submitted two investigative reports, containing preliminary summaries of
`witness testimony. At this stage, the investigative reports provide additional factual support for
`the substantial basis finding. Defendant’s contention that these findings do not support Plaintiff’s
`position is irrelevant because the reports support the conclusion that Defendant’s actions cannot
`be characterized as an improvisation. See Zelaya, 244 A.D.3d at 593 (Ist Dept. 2025) (finding
`plaintiff presented “sufficient proof at this stage” based on affidavits, an uncertified police report,
`and an audio transcript).
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`Next, rather than challenging the admissibility of Ms. An’s affirmation, Defendant argued
`that the affirmation factually undermines Plaintiff’s allegations. NYSECF No. 62, Ex. D. Based
`on the affirmation, Defendant contends that Ms. An did not personally observe the alleged sexual
`assault. However, a witness’s inability to observe portions of an event due to an obstructed view
`does not constitute affirmative proof that the conduct did not occur, nor does it render Plaintiff’s
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`)
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`allegations internally inconsistent or “irreconcilable.” Contrary to Defendant’s contention, Ms.
`An’s affirmation corroborates the fact that Defendant was not authorized to direct on set.
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`Finally, Plaintiff submitted Instagram direct messages between herself and Eleanor Jackson
`(“La Roux”), in which Ms. Jackson described the events at issue as “horrific,” and referenced her
`efforts to ensure the footage would not be used. NYSCEF No. 62, Ex. E. Nevertheless, Defendant
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`argued that these messages are somehow insufficient to meet the substantial basis burden because
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`they are unauthenticated and unsworn. However, under Zelaya, asserted defects such as
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`authentication or form do not categorically preclude consideration at the CPLR 3211(g) stage. 244
`A.D.3d at 593. See Miller v. Appadurai, 2022 NY Slip Op 30368(U), 2022 N.Y. Misc. LEXIS
`539, at 8, 14-15 [Sup Ct, N.Y. County 2022] (expressly reviewing and considering supporting and
`opposing affidavits, website excerpts, social media posts, screenshots, and circulated links in
`evaluating whether plaintiff established a substantial basis in law); see also Reeves, 232 A.D.3d at
`20-24 (considering court records, text messages, audio recordings, and other documentary
`submissions in connection with CPLR 3211(g))). Therefore, if the Court concludes that the
`substantial basis standard applies, the underlying evidence submitted with the Opposition should
`be considered.
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`Il. In The Alternative, Targeted CPLR 3211(D) Discovery Is Appropriate
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`As argued in Plaintiff’s Opposition, if the Court does not find a substantial basis in law,
`targeted CPLR 3211(d) discovery is appropriate. Specifically, Plaintiff is entitled to targeted
`discovery including: (i) a third-party subpoena to Universal Music Group requesting all contracts,
`including documentation coordinating intimacy scenes, as well as other documentation relating to
`the filming of “In for the Kill;” (ii) a third-party subpoena to Universal Music Group requesting
`any and all video clips or other audio-visual recordings, including raw footage, and outtakes from
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`the filming of the “In for the Kill” music video; and (iii) a deposition of Defendant.
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`CONCLUSION
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`Defendant’s request for exclusion of these exhibits should be denied, and Plaintiff reiterates
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`her Opposition to Defendant’s Motion to Dismiss.
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`Respectfully submitted,
`
`ARCE LAW GROLP, P.C.
`Attorneys for Plaintiff
`
`/s/ Jesse S. Weinstein
`Jesse S. Weinstein, Esq.
`Christine E. Hintze, Esq.
`Melissa N. Berouty, Esq.
`45 Broadway, Suite 2810
`New York, NY 10006
`(212) 248-0120
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