COUNTY OF NEW YORK
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`-..------..-------_---_-_--..--_-...-------_-_---------------.---_--X
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`Index N0: 15312712014
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`MICHAEL J. BORRELLI,
`BORRELLI & ASSOCIATES, P.L.L.C.,
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`Plaintiff,
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`Order To Show Cause To Vacate
`Default Judgment
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`- against—
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`ROSS ROSENFELD
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`E“ sesssns eases
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`Defendant
`NEW limit; @005???
`x saw—eases teenage sans
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`Upon the annexed afiinnation of Seth Rosenfeld Esq., duly subscribed on October 20, 2014,
`the annexed exhibits and upon all the papers and proceedings had heretofore herein, LET the
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`located at
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`, NY , on the day of
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`, 2014, at
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`a.m./p.m. or as soon thereafter as counsel can be
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`heard, WHY an order should not be issued, pursuant to to C.P.L.R. §§ 5015 and C.P,L.R 2004,
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`and CPLR 3211 (a)4,which:
`A: Grants the Defendant’s instant application which seeks to vacate the default
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`judgment, and/or
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`B: Allows the Defendant Ross Rosenfeld to file the attached answer to the above
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`entitled action, and/or
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`C: To stay the hearing on damages, and/or
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`D: To place the case back on the Court’s calendar and allow the Defendant to
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`present his defenses, and/0r
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`D: Grants the Defendant such other and further relief as this Court deems just and
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`equitable.
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`SUFFICIENT CAUSE THEREFORE APPEARING let service of a copy of this order
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`and the papers upon which it is predicated-by first class mail (With/Without certificate of mail) or
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`by certified mail upon the Plaintiff’s attorney, and the sherifl if any, be deemed good and
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`sufficient service if served on or before the
`day of
`Proof of service may be filed on or before the return date ofthis motion.
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`2014.
`I
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`PENDING A HEARING AND DETERNflNATION OF THIS MOTION,
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`Let the Plaintiff he stayed, and let the plaintiff, their agents, assigns, employees or any individual
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`or entity acting on their behalf are hereby stayed from undertaking any and all efforts which
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`seek to enforce or execute upon the judgment. Let the Sherriff if any he stayed, and let the
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`Sherriff, their agents, assigns, employees or any individual or entity acting on their behalf are
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`hereby stayed from undertaking any and all efforts which seek to enforce or execute upon the
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`judgment. There is a stay on the hearing on damages.
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`Dated Queens, New York
`October21, 2014
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`Supreme Court Justice Debra James
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`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF NEW YORK:
`---—------------———----------———---—-----—-----------——--—------X
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`Index No: 15312712014
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`MICHAEL J. BORRELLI
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`Plaintiff,
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`_
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`ATTORNEYS
`AFFIRMATION IN
`SUPPORT
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`- against-
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`‘ROSS ROSENFELD
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`Defendant
`-------—«---—----—--X
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`Seth Rosenfeld Esq , an attorney duly licensed to practice law before the Courts
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`of the State of New York hereby affirms the following:
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`1.
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`I am the attorney for the Defendant Ross Rosenfeld in the above entitled
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`action and make this affirmation in support of the instant emergency Order to Show Cause filed
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`by the Defendant herein to vacate the default judgment and allow the Defendant to file an answer
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`in above entitled action, to stay the hearing on damages, and for the case to be placed back on the
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`Court calendar, and for such other and further relief as the Court may deem necessary.
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`2. The Defendant’s motion must be granted. Since the default in appearing was not caused
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`by any willful action on behalf ofthe Defendant not to appear and because the Defendant
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`proffers a meritorious defense, their motion to vacate the default order and judgment entered
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`herein should be freely granted.
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`3. Notwithstanding, the instant proceeding should be vacated pUISuant C.P.L.R. §
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`5015(a)(1), which states, in pertinent part;
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`“The court which rendered a judgment or order may relieve a
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`party from it upon such terms as may be just, on motion of any
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`interested person with such notice as the court may direct, upon
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`the ground of .
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`.
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`. excusable default, if such motion is made within
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`one year after service of a copy of the judgment or order with
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`written notice of its entry upon the moving party, or, if the moving
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`party has entered the judgment or order, within one year after
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`such entry .
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`.
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`.
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`.
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`4.
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`Thus, a party may move to vacate a judgment if he/she proffers an excusable reason
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`for the default and a meritorious defense to the action or proceeding. See C.P.L.R §§ 318,
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`5015; DiLorenzo V. A.C. Lumber Co. Inc., 67 N.Y.2d 138, 141, 501 N.Y.S.2d 8 (1986);
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`Fenneli V. Mason 612 N.Y.S.2d 416, 417, 204 A.D.2d 599, 599 (App. Div. 2d Dept. 1994);
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`Putney v. Pearlman, 203 A.D.2d 333, 333, 612 N.Y.S.2d 919 (App. Div. 2d Dept. 1994).
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`5.
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`Indeed, the determination of what constitutes a reasonable excuse for a default
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`lies within the sound discretion of the court. See Kathy A. Barbagaiio v. Nationwide
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`Exterminating & Deodorizing, 1110., 260 A.D.2d 518, 519, 88 N.Y.S.2d 246 (App. Div. 2d
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`Dept. 1999) (citing Grutman v. Southgate at Bay Harbor Home Owners Ass’n, 207 A.D.2d
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`526, 527, 616 N.Y.S.2d 68 (App. Div. 2d Dept. 1994).
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`6.
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`In the case at bar the Plaintiffs have acted in bad faith by starting Supreme
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`Court litigation under index number 600668/2014 in Nassau County, and failing to
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`include these claims. I have had numerous conversations with the Plaintiff (an
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`attorney) and members of his firm regarding the case under Supreme Court Nassau
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`County index 60066812014 over the last several months and they never informed me
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`that they had started this litigation. They never served me or at the very least
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`provided me with a courtesy copy of the legal papers they allege to have sent the
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`Defendant. I have been speaking to the Plaintiff for several months and having
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`litigated in Court with them over the Defendant’s websites I find it egregious that
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`they started a second casein this jurisdiction over the exact same claim for Libel
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`Per Se and never mentioned it or pursued this claim in Nassau County where we
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`have been litigating for months. Based on their claims in their legal papers it is
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`clear they were aware of this website and could have litigated it in Nassau where
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`they started a case based on the same cause of action. They only wanted to wait
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`until it was too late for the Defendant to answer this litigation. The Defendant who
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`does not remember being served with this case constantly receives legal papers in
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`regard to Nassau County case index number 600668/2014 and believes that papers
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`he might have received were a part of that litigation which is ongoing in Nassau
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`County. Had the Defendant known that the Plaintiff would start a second litigation,
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`even though his lawyer was in constant contact with the Plaintiff, it would have been
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`a lot easier for the Defendant to identify these papers as being separate litigation
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`despite being for the same cause of action between the same parties. The Defendant
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`is eager to have his day in court and the only reason there was a default in this case
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`is from the honest mistake of the Defendant and devious practices by the Plaintiff
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`who is using the court to go after a complaining former client.
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`It has been found, that
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`default judgments should be freely vacated when they result from “’honest-mistakes’ or
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`ignorance ofa rule oflaw” on behalf of a non-appearing defendants. Richards, Fagone
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`& Associates. Inc. v. Center Stage Stores, 44 A.D.2d 857, 857 354 N.Y.S.2d 739 (App.
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`Div. 3d Dept. 1974) (vacating a default judgment even though the defendant failed to
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`submit an answer); S.G.S.G. Construction Corp. v. logy Marr, 94 A.D.2d 765, 96 A.D.2d
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`937 (App. Div. 2d Dept. I983) (same).
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`7.
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`The case of Vista Plumbing & Cooling V. Bethlehem Constr. Corp, 67
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`A.D.2d 761 (App. Div. 3d Dept. 1979), provides a conceptual basis for understanding the
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`practical and legal application of C.P.L.R. § 5015(a). In Vista Plumbing, supra, the
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`plaintiff obtained a default judgment against the defendants due to their failure to answer
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`its summons and notice. After learning of the judgment entered against them, the
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`defendants promptly moved to vacate the same by service of an order to Show cause.
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`Id.
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`at 463.
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`8.
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`In their moving papers, the defendants alleged that they never received notice of the
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`commencement of the action and claimed that the plaintiff had itself breached the contract upon
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`which its claim was premised. Id. In granting the defendants’ motion to vacate, the Third
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`Department reasoned that “each defendant has demonstrated a lack of willfitlness on its part in
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`failing to appear in the action and each promptly moved to vacate the judgment” and “{e]ach has
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`meritorious defenses, if proven, to the actions.” Id. at 463.
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`9. As for a brief overview of the facts giving rise to the instant proceeding, the
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`Commencement ofthis proceeding emanates from the plaintiff’s claim that the Defendant has
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`committed Libel Per Se because of statements made on the Defendant’s website
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`wwaorrelliandAssociatessucks.com. This allegation is a complete falsity. The Defendant has
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`criticized the Plaintiff lawyer on his websites. His websites make clear that he is not Michael
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`Borelli or Michael Borelli and Associates but an unsatisfied former client oftheirs. Mr. Borelli
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`decided to start a litigation alleging Libel Per Se in Nassau County Supreme Court under index
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`number 600668l2014 because of the Defendant’s criticisms in his websites
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`http://michaelborrellisucks.com, and the Facebook page
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`hgp:llwww.facebook.com/michaelborrelligripe. Instead of
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`litigating for the website that is the basis of this case www.BorrelliandAssociatessucks.com in
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`the case that the Plaintiff started in Nassau County, they chose to start another action in
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`this Court despite having a full opportunity to litigate these issues in their other Libel Per Se
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`case in Nassau County. There will now be two different demands for discover and the
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`possibility of inconsistent verdicts for the same cause of action. The Defendant also cites
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`C.P.L.R 3211 (a) 4. It was only well after the time to answer had elapsed that the Plaintifi ever
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`spoke to me about the existence of this case. The Plaintiff at present has three different
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`litigations against the Defendant.
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`10.
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`In the case at bar the Defendant does not remember being served and was confused
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`because the Plaintiff has an ongoing Libel Per Se over the defendant’s websites in
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`Nassau County and is also being sued for alleged trademark infringement based on a parody of
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`on one ofthe websitesl. The Defendant also has real and tangible defenses to this litigation.
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`1 1.
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`The Defendant has websites in which he articulates how the Plaintifi‘s, through fraud,
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`deception and abuse, took an additional four thousand dollars above the agreed upon contractual
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`fee for representation. The Plaintiffs drafted and signed a retainer that specified the charge of
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`fifteen thousand dollars for their representation. After the fifteen thousand was paid and before
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`the work was completed, the Plaintiff, despite having been paid in full demanded another four
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`thousand dollars from the Defendant and employed means ofdeceit and fraud, even threatening
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`to drop his case. The Defendant influenced by their demands paid the four thousand dollars.
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`The Defendant then requested the ill-gotten funds returned. The Plaintifi refused to return the
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`four thousand dollars and demanded even more money from the Defendant. When the ‘
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`Defendant refused to be taken advantage of for a second time, the Plaintiff, followed through
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`i A copy ofthe summons and complaint for the Nassau County cases are annexed as exhibit 1.
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`with their threats and made a motion to be relieved as counsel.
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`12.
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`In a hearing dated August 9, 2010 the Honorable Judge Victor Pohorelsky decided
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`the Plaintiff’s motion to be relieved as counsel. In his decision, he ruled against the Plaintiff,
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`specifying that the retainer had a fee cap of fifteen thousand dollars, noting that there is an
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`expressed disclaimer, ‘No other monies shall be advanced by the client other than the initial
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`retainer.” The Honorable Judge Victor Pohorelsky went on to specify that, from reading the
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`retainer, the only fees, costs and expenses that were not included in the fifteen thousand dollar
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`payment would be the costs and expenses associated with an appeal. The case was not appealed.
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`The Honorable Judge Victor Pohorelsky also specified that he did not view the provision limiting
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`attorney’s fees to be ambiguous. Despite this ruling and the Honorable Judge Victor
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`Pohorelsky’s interpretation of the retainer agreement, the Plaintiffrefused to refund the ill-gotten
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`four thousand dollars to the Defendant. The Defendant repeatedly asked the Plaintiff for the
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`return of his four thousand dollars. The Plaintiffs refused to refund the ill-gotten gains.
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`14.
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`The hm;:l/wwaorrelliandAssociatessucks.com site also contains information
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`about the Plaintifi‘s being reported to the bar by the Defendant for the taking ofthe four thousand
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`dollars. The Defendant never commented on his site that the Plaintiff was being investigated for
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`harassing clients. The web site is a gripe site. It has the Defendant’s retainer with emails from
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`Mr. Borrelli. It has documents for the viewer to peruse and truthfiil statements by the Defendant
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`in regard to the Plaintiff keeping the ill-gotten gains.
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`15. The statements allegedly written and attributed to the Defendant, including the
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`passages quoted in the Summons and Complaint are mostly statements that merely express
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`opinion and are not actionable as defamation, no matter how ofiensive, vituperative or
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`unreasonable the Plaintifi‘ might find them to be. It is apparent when one enters the site. The
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`site contains the following statements. “The opinions expressed on this page are those of Ross
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`Rosenfeld. This is a gripe site intended to criticize attorney Michael Borrelli, along with his
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`associates Matthew Blit and Les Levine. . .So, in addition to stealing from me, Borrelli then
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`decided to harass me as well. I tried time and time again to get the money I overpaid back, but I
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`kept getting responses like this one:” The Defendant has a pasted email from the Plaintiffthat
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`reads, "Ross, we are not sending you any money..." The Defendant has the following
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`post on his web site.“Then Borrelli, Blit, and Levine attempted to pull out of my case because I
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`would not give-in to their strong-arm tactics and give them any more money. They were told by
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`the Honorable Judge Viktor Pohorelsky that ‘there‘s no obligation in the retainer agreement that
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`[Ross Rosenfeld] fund expenses.’ The judge, of course, ruled against them. And yet, to this day,
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`Borrelli continues to hound me for money that he is in no way entitled to. Here is a recent letter
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`that I was sent along with a list of charges that I'm in no way obligated to pay:” The Defendant
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`is specifying that these conclusions are his opinion based on the facts that the Plaintiffhas not
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`refunded his four thousand dollars. The Defendant published emails from the Plaintiff, the
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`retainer agreement, the ruling ofthe Hon. Judge Pohorelsky, and a list of expenses provided by
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`the Plaintifithat only account for approximetly $1,500.00 ofthe $19,000.00 paid to them. The
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`Defendant is providing facts and allowing the public to make their own conclusions.
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`16. The Defendant only exercised his First Amendment right to free speech. The Plaintifi‘ is
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`attempting to have the Court stifle criticism of their services. As denoted by the word “sucks”
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`being in the title the site is clearly denoted as a gripe site and Personal opinion about goods and
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`services are a matter oflegitimate public concern and protected speech. Although the Plaintiff
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`does not like being the subject of a gripe site, it is protected speech. Best Western International
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`Inc. V. James Furber, et al.No. CV-06-1537-PI—lX-DGC (D. AZ, September 5, 2008)
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`

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`Marianne Bihari and Bihari Interiors, Inc. v. Craig Ross and Yolanda Truglio
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`2000 U.S. Dist. Lexis 14180, 119 F. Supp. 2d 309 (S.D.N.Y., September 28, 2000)
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`The Board ofDirectors of Sapphire Bay Condominiums West V. George R. Simpson, et al.
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`No. 04-3690 (3rd Cir., May 2, 2005)
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`17. Perhaps most compelling, however, is the fact that the web sites, when Viewed in its full
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`context, reveals that Defendant is a disgruntled consumer and that most his statements reflect his
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`personal opinion based upon his personal dealing with plaintiff. They are subjective expressions
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`of consumer dissatisfaction with Plaintiif and the statements are not actionable because they are
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`defendant‘s personal opinion with stated facts as to how he arrived at that opinion.
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`18. The petitioners are estopped from seeking to obtain the reliefrequested
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`herein as the petitioner’s damages, if any, is the result of its own actions, omissions, culpable
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`conduct, assumption of risk, and/or breaches of agreement.
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`19.
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`Plaintiff in their moving requests that an injunction be granted forcing the Defendant
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`to take down the web sites. A preliminary injunction may be granted in any action where it
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`appears that the Defendant threatens or is about to do, or is doing or procuring or suffering to be
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`done, an act in Violation ofthe plaintiffs rights respecting the subject ofthe action, and tending
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`to render the judgment ineffectual, or in any action where the plaintiffhas demanded and would
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`be entitled to a judgment restraining the Defendant from the commission or continuance of an
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`act, which, if committed or continued during the pendency ofthe action, would produce injury to
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`the plaintiff. A temporary restraining order may be granted pending a hearing for a preliminary
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`injunction where it appears that immediate and irreparable injury, loss or damage will result
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`unless the Defendant is restrained before the hearing can be had.
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`20.
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`In the case at Bar the Plaintiff has not referenced any actual damages and
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`therefore cannot argue that there is irreparable injury or loss that will occur if an injunction is
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`not granted. In addition iftemporary injunctive relief is granted, it must appear conclusively to
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`the court that underlying cause of action is well founded and can be expected to prevail when
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`trial is had. CPLR § 6301.
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`21.
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`The Plaintifis have failed to demonstrate a good reason as to why no notice is to be
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`afforded Defendants in regard to an argument on any temporary restraining order, nor have they
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`attempted to contact the Defendant, in violation of22NYC202.7(t). Beginning in May of 2013 I
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`personally contacted the Plaintiff in regards to the outstanding debt owed the Defendant. Mr.
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`Borrelli discussed the web sites with me at that time. At no time did he mentioned anything on
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`discuss any corrections he felt were necessary on the web sites. Despite his contention that he is
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`suffering irreparable harm he waited over-ten months to make any request for an injunction. It
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`was only after the Defendant initiated a suit for the return ofthe four thousand dollars that the
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`Plaintiff started this action.
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`22.
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`Given the above authorities, the Defendant requests that the instant order to show
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`cause be granted. Even though the defendant failed to answer, the defendant should not be
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`penalized since its default was not willful and since it has real and tangible defenses to the
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`proceeding. Once the Defendant was made aware ofthe proceeding he promptly responded.
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`23.
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`Moreover, notwithstanding the above, the Court has an inherent power to open
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`judgments in the interest ofjustice. Machnick Builders, Lt . v. Grand Union (10., 52 A.D.2d 655,
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`381 N.Y.S.2d 551 (App. Div. 3d Dept. 1976). It is well settled that the law favors resolution of
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`cases on the merits and where defaults are due to a single, isolated, inadvertent mistake, and not
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`due to willful default or persistent neglect, reason and justice dictate that a party be afforded its
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`day in court. Kahn v. Stamp, 52 A.D.2d 748, 382 N.Y.S.2d 199 (App. Div. 4th Dept.
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`1976)(citing LeCesse v.Giancursio, 38 A.D.2d 873, 329 N.Y.S.2d 289 [App Div, 4th Dept.
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`1972]; Matter of Gibson v. MVAIC, 45 A.D.2d 678, 356 N.Y.S.2d 77 [App Div. lst Dept.
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`1974]).
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`24.
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`In exercising such discretion courts should undertake a balanced consideration of
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`all relevant factors, including the merit or lack of merit in the action, the seriousness of the
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`injury, the extent ofthe delay, the excuse for the delay, prejudice or lack of prejudice to the
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`opposing party and intent or lack of intent to deliberately default or abandon the action. LL
`Handa, RC. V. Irnperato, 159 A.D.2d 484, 552 N.Y.S.2d 356 (App. Div. 2d Dept. 1990) (citing
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`Kahn v. Stamp, supra; Batista v. St. Luke's Hospital, 46 A.D.2d 806, 361 N.Y.S.2d 190 [App
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`Div. 2d Dept. 1974]).
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`WHEREFORE, the Defendant respectfully request that this Court enter an order which
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`Grants the Defendant’s instant order and vacates the Default judgment, stays the damages
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`hearing, and sets the case on the Court’s calendar; and, allows the Defendant to answerz, and
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`grants the respondent such other and further relief as this Court deems just and proper.
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`
`
`Dated: Queens, NY
`October 23, 2014
`
`
`
`seth Rose eld Esq.
`118~21 Queens Blvd, Suite 509
`Forest Hills, NY 11375
`718493-1331
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`
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`2 Acopy ofthe Defendant‘s answer is annexed as exhibit 2.
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`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF NEW YORK:
`-----—-------------—------------————----------———--------———----X
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`Index No: 15312712014
`
`MICHAEL J. BORRELLI
`
`Plaintiff,
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`' Affidavit in Support of The Order
`To Show Cause To Vacate Default
`
`Judgment
`
`- against-
`
`ROSS ROSENFELD
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`_-----_mm-----_____---_------_-__---____---___---__----_--.X
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`Defendant
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`I Ross Rosenfeld, being duly sworn and under the penalties of perjury, hereby depose
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`and says the following:
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`1.
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`I, the undersigned, am the herein named Defendant and that I have read the
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`The Affirmation in Support of The Order to Show Cause submitted by my attorney on my behalf
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`and know the contents thereof; that the same is true based upon my own knowledge except
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`matters stated upon information and belief and that to those matters I believe them to be true. I
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`further state that the grounds of my belief as to all matters are based upon my personal
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`knowledge ofthe facts herein as well as a review ofmy file and of all the writings relevant to
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`this proceeding and knowledge of the matter.
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`2. The Plaintifi” is suing me under the same cause of action in Nassau County Supreme
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`Court under index number 600668/2014. Had I known that the Plaintiff would start a second
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`litigation even though my lawyer was in constant contact with the Plaintiff it would have
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`been a lot easier for me to understand and identify any papers I might have received as
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`being a separate litigation despite being for the same cause of action between the same
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`parties.
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`I am eager to have my day in court.
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`3.
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`I do not remember being served or any legal documents attached to my door.
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`However, being that I constantly get documents in regard to the Nassau County case, it is
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`possible I might have mistaken these legal documents as pertaining to the Nassau County
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`case. I was not aware that the Plaintiff could start the exact same case in another
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`jurisdiction. I am being sued by the Plaintiff for Libel Per Se and I am also being sued for
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`alleged trademark infringement based on a parody on one of the websites.
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`4.
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`5.
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`I have four websites wherein I criticized the Plaintiff lawyer and Levine and Blit.
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`My websites make clear that I am not Michael Borelli or Michael Borelli and
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`Associates but an unsatisfied former client of theirs. I discuss how the Plaintiffs, through fraud,
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`deception and abuse, took an additional four thousand dollars above the agreed upon contractual
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`fee for representation. The Plaintifis drafted and signed a retainer that specified the charge of
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`fifteen thousand dollars for their representation. After the fifteen thousand was paid and before
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`the work was completed the Plaintiff, despite having been paid in full, demanded another four
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`thousand dollars from me, employed means of deceit and fraud, and even threatened to drop my
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`case.
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`I was influenced by their demands and paid the four thousand dollars. I then requested the
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`ill-gotten funds returned. The Plaintifi‘ refilsed to return the four thousand dollars and demanded
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`even more money from me. When I refused to be taken advantage of for a second time the
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`Plaintifffollowed through with their threats and made a motion to be relieved as counsel.
`6. Their motion to be relieved as counsel was denied by the Honorable Judge Victor
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`Pohorelsky, who specified in his ruling that the Plaintifi was not entitled to any funds in addition
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`to the original $15000.00 on the retainer. Despite this ruling and the Honorable Judge Victor
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`Pohorelsky’s interpretation of the retainer agreement, the Plaintiff refused to refund the ill-gotten
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`

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`four thousand dollars back to me. i have published emails from the Plaintiff, the retainer
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`agreement, the ruling of the Hon. Judge Pohorelsky, and a list of expenses provided by the
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`Plaintiff that only account for approximetly $1,500.00 of the $19,000.00 paid to them.
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`I
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`repeatedly asked the Plaintiff for the return of his four thousand dollars. The Plaintiffs refused to
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`refund the ill—gotten gains.
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`7. The lag:lfwww.BorrelliandAssociatessucks.corn site also contains information about
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`Me reporting the Plaintiffs to the bar for the taking of the four thousand dollars. I have never
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`specified on the website that the Plaintiff was being investigated for harassing clients. The web
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`site is a gripe site. It has the retainer entered into between myself and the Plaintiffs and emails
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`from Mr. Borrelli. It has documents for the viewer to peruse and my truthful in regard to the
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`Plaintiff keeping the ill gotten gains.
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`8.-
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`The site contains the following statements. “The opinions expressed on this page are
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`those of Ross Rosenfeld. This is a gripe site intended to criticize attorney Michael Borrclli, along
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`with his associates Matthew Blit and Les Levine.
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` Ross Rosenf
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`Sworn to before me this
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`fiéfl‘hday of October 2014
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`.
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`-
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`.
`
`[L
`Notary Public
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`.
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`3'
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`.
`
`WILHELMINA OBHIEN
`Notary Public, State of New York
`No. 0103622420?
`Qualified in Nassau County
`Commission Expires 061282 i
`0
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`

`

`Exhibit 1
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`
`
`
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`

`

`FILED: NASSAU COUNTY CLERK 02mm
`' NYSCEF "DOC- NO. 1
`
`INDEX NO- 600568/ 2014
`02/12/2014
`RECEIVED NYSCEF:
`
`|
`
`.
`
`-
`1
`
`
`
`SUPREME COURT OF- THE STATE OF NEW YORK.
`COUNTY OF NASSAU
`________________________________________________________________
`
`MICE-MEL J. BORRELLI, and BORRELLIE &
`ASSOCIATES, l’.L.L.C.,
`
`Plaintiffs,
`
`-against—
`
`.1
`'
`.
`1i
`L
`S '
`ROS R091; NFF LD’
`
`‘
`Defendant.
`
`X
`
`:
`:
`:
`:
`
`:
`‘
`I
`
`SUMMONS
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`Index No;
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`.
`.Iui-v Trial Demanded
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`___________________________________________
`
`X
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`DEFENDANT: ROSS R.OSENFELD,.22 Kowall Place: Lynbwok, New York l 1563
`
`You ate liereby summoned and required to serve upon Bon'elli & Associates, I".L.L.C., attorneys
`for Plaintiffs, the Answer to the Complaint in this aetien within twenty days Of this summons,
`exclusive oftiie day of Service, or within thirty days after service is complete if this summons is
`not personally delivered to you within the State ofN-ew York.
`In case ofyout failure to answer,
`judgment will be taken. against" you by default for the reliefdemanded in theCemplaint. The
`basis of venue is based on Plaintiffs’ principal place of business located at 10.10 Northern Blvd,
`Suite 328, Great Neck, New York 1 102'].
`
`Dated: Great Neck, New- Yoyk
`February 12, 2014
`
`Respectfully- Submitted,
`
`BORRELLLAi: ASSOCIATES, P.L..L.C.
`
`.."" .4}
`
`
`
`Bx“:
`
`W
`
`MlC‘lrIAE-I..--J. BORRELLI, ESQ.
`ALEXANDER T. COLEMAN, ESQ.
`Attorfieysjbr.Plaiitrhffjfs"
`1-010 Nerthem Blvd, Suite 328
`Great Neck, New York llOEl
`Tel. (516) 248-5550
`Fax. ('51 6;) 2486027
`
`
`
`

`

`
`
`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF NASSAU
`
`....................
`
`MICHAEL J. BORRELLI, and BORRELLI &
`
`ASSOCIATES, P.L.L.C‘...
`
`Plaintiffs,
`
`~against-
`
`ROSS ROSENFELD:
`
`_
`*
`Del'endant.
`
`______________________________________________________________
`
`x
`
`‘
`
`:
`:
`
`x
`
`Index- No;
`
`Jurv Trial Demanded
`“—
`
`MiCHAEL .T. BORRELLI (“Mn Burrelli") anti BORRELLI 8a ASSOCIATES, P.L.L.C..
`
`(“Finn") (collectively as “Plaintiffs“fl, by and through their undersigned counsel, as and for their
`
`Complaint against ROSS ROSENFELD (“Defendant"). allege upon knowledge as to themselves
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`and their own actions and upon information and belief as to all othermatters as follows:
`
`NA’I‘GRE OF CASE
`
`l.
`
`This is a civil action seeking monetary damages and other redress for libel per se,
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`as well as any other cause(s) of action that can be inferred from the facts set forth herein.
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`2.
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`This lawsuit arises out of maliciously false statements that the Defendant made in
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`which he explicitly stated and/0r otherwise implied that Mr. Borrelli, the managing member of
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`. Plaintiff Firm is an attorney under investigationby the ”New York State Bar because he harasses
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`his clients. Defendant also stated that Mr. Borrelli is a thief who steals money from his "clients.
`
`Defendant made and published these abhorrent statements about Plaintiffs on two public
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`websites that the Defendant created and maintained solely for thepurpose <11" publishing these
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`detarnatory statements and inter-“llering with the business of the Plaintiffs. Tli‘e'websites are easily
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`accessible by members of Plaintiffs? professional community; Plaintiffs’ prospective and current
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`

`

`
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`clients, as well as the general public at large. Defendant’s false statements, as they pertain
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`specifically to Plaintiffs’ trade or profession. constitute libel per se. Defendant’s actions have
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`further caused 'Piaintiffs sever-e embarrassment and have had a negative impact on Piai'ntiffs'
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`reputation in their professional community.
`
`PARTIES
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`3.
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`At all relevant times herein, Mr. Bon‘elli was andis a resident ofthe State of New
`
`York: County of Nassau. Mr. Borrelli is neither a public official nor a public figure.
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`4.
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`Mr.
`
`'Bot'relii
`
`is the owner and managing member of Borre’lli and Associates,
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`P.L.L-C..,fom1erly known as “The Law Offico of 'Borreili & Assaoiates, P.L.i..C.”
`
`U1
`
`Plaintiff Firm is a protessionai limited liabilityr company currently located at l-UiU
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`Noatitern Blvd, Great Neck, New York and at 655 Third Avenue New York, New York.
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`6.
`
`At all relevant-times herein, Defendant Rosent‘eld is aresident ot’the State ofNew
`
`York, County of Nassau- Defendant
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`is the creator and author of the pnbiic‘ website.=
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`littp:ffrnichaelborrell‘isuckscom. as weli as the creator and author of the. public. Facebook page.
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`“Michael Borrelii Sucks." available at http:lfwww.faceboolt;com/michaelhori‘elligripe.
`
`BACKGROUND FACTS
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`7.
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`Mr. B'orrelli is a practicing attorney who has been admitted to practice law in New
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`York for eieven years.
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`8.
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`.Mr..Borrelii is the lira-naging memberand owner of the Firm. He incorporated the
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`Firm" in March 2006'. He began the firm as a solo practitioner without any partner, associates or
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`staff.
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`In just under seven short years,
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`the Firm has grown into its current state with
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`approximately twelve" associates and over twenty employees.
`
`19
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`

`

`
`
`
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`9.
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`On or about December 27, 2005, Defendant retained Levine & Blit, P.L.L.C.
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`(“1&8”), a Manhattan based law lion for which Mr. Borrelli was working in an “Of Counsel"
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`position,
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`in connection with Defendant’s legal matters. At some point during L&B"s
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`representation of the Defendant, a dispute arose between 1.6128 and Defendant regarding legal
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`fees and expenses owed in addition to the fees outlined in the. Retainer Agreement that the
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`Defendant had entered into with l.;&l3.
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`it).
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`Despite several attempts from Mr. Borrelli, on behalf of L&B', to request that
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`Defendant tender payment for the-additional expenses, Defendant refused to pay.
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`11.
`
`Due to.
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`the financial
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`impossibil‘ities in pursuing Defendant‘s case without
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`additional funds tendered by Defendant and personal issues arising from Defendant’s erratic-and
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`disrespectful behavior, Mr. Borrelli, now on behalf of Plaintiff Finn, attempted to withdraw from
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`representation of Defendant, on or about
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`July 20, 2010.
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`Defendant’s case resolved"
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`unsuecessfully.
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`3')
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`Defendant, enraged with owing fees resulting from the representation and with
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`little else to keep himself occupied, made it his mission to attempt to destroy Plaintiffs’
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`reputation and dissuade potential clients from retaining Plaintiffs by creating two public websites
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`and publishing false statements. about Mr. Borrelli and his Firm on both websites.
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`Website #1
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`1.3.
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`On or
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`around May
`
`29, 2013, Defendant
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`launched a public website,
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`http:l/wwni.michaelbotrellisucltseom, dedicated to defaming the character and professional
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`practice and reputation ofPlaintifl’s.
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`14.
`
`On that date, on httpzli’www-m