At IAS Part of the Supreme Court of. County of Kings at the courthouse located at 60 Centre Street, New York, New York , on the day 2018.

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1 At IAS Part of the Supreme Court of the State of New York, held in and for the County of Kings at the courthouse located at 60 Centre Street, New York, New York 10007, on the day of, PRESENT: HON. Justice SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK X Index No.: /14 JOYCE MAY, -against- Plaintiffs, ORDER TO SHOW CAUSE ARISTOCRAT PLASTIC SURGERY, P.C., KAYVON TEHRANI, M.D. (a/k/a KEVIN TEHRANI, M.D.); JOHN DOE/JANE DOE 1-2 (as yet unidentified individuals); ABC BUSINESS ENTITIES 1-5 (as yet unidentified entities), Defendants X UPON reading and filing the annexed Affirmation of LAUREN N. EHRLICH, ESQ., dated January 19, 2018, and the exhibits annexed thereto and upon all of the pleadings and proceedings heretofore had herein, LET the plaintiff show cause before this Court at I.A.S. Part to be held at the Courthouse located at 60 Centre Street, New York, New York 10007, on the day of February, 2018, at 9:30 a.m. in the forenoon of that day, or as soon thereafter as counsel can be heard, why an Order should not be made compelling plaintiff to remove any and all negative, false online reviews regarding defendants, prohibiting plaintiff from posting

2 any further negative, false reviews pertaining to the defendants, and for such other, further and different relief as to this Court may seem just and proper. Sufficient cause appearing therefore, let service of a copy of this Order to Show Cause, the annexed affirmation, and the pleadings herein, made by upon the attorneys for plaintiff, Law Offices of Elliot Malone, Esq., LLC, located at 50 County Road, Cresskill, New Jersey 07626, on or before the day of, 2018, be deemed good and sufficient service. E N T E R E D: J.S.C. 2

3 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK X Index No.: /14 JOYCE MAY, Plaintiffs, AFFIRMATION -against-nst- -agai GOOD FAITH OF ARISTOCRAT PLASTIC SURGERY, P.C., KAYVON TEHRANI, M.D. (a/k/a KEVIN TEHRANI, M.D.); JOHN DOE/JANE DOE 1-2 (as yet unidentified individuals); ABC BUSINESS ENTITIES 1-5 (as yet unidentified entities), Defendants X â â â â X LAUREN N. EHRLICH, ESQ., an attorney duly admitted to practice law before the Courts of the State of New York, affirms the following to be true under the penalties of perjury: 1. I am an associate of the law firm of MARULLl, LINDENBAUM & TOMASZEWSKI, LLP, attorneys for the defendants ARISTOCRAT PLASTIC SURGERY, P.C. and KAYVON TEHRANI, M.D. (a/k/a KEVIN TEHRANI, M.D.). As such, I am fully familiar with the facts and circumstances of this matter and the instant application. 2. This Affirmation is submitted in support of the instant motion, which seeks an Order compelling plaintiff to remove any and all negative, false online reviews regarding defendants, prohibiting plaintiff from posting any further negative, false reviews pertaining to the defendants, and for such other, further and different relief as to this Court may seem just and proper.

4 3. This office has made a good faith effort to resolve the issues herein without engaging in motion practice, by way of correspondence from your affirmant's office dated November 2, 2017, a copy of which is annexed hereto as Exhibit "H". However, plaintiff's counsel refused, as reflected in the correspondence dated November 13, 2017, a copy of which is annexed hereto as Exhibit "I". 4. Based upon the foregoing, it is respectfully submitted that a good faith effort has been made on behalf of the moving defendants to resolve the issues raised in this motion without motion practice and intervention of this Court. However, due to plaintiff's refusal to remove the false and inflammatory online posting, defendants have no choice but to proceed with the within motion. WHEREFORE, it is respectfully requested that this Court grant the within motion in its entirety, together with any further, other and different relief as the Court deems just and proper. Dated: New York, New York January 19, 2018 LAUREN N. EHRLICH, ESQ. 4

5 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK X - â â â â â â â â â â â â â â â â â â X Index No.: /14 JOYCE MAY, Plaintiffs, -against-nsf- -agai AFFIRMATION IN SUPPORT ARISTOCRAT PLASTIC SURGERY, P.C., KAYVON TEHRANI, M.D. (a/k/a KEVIN TEHRANI, M.D.); JOHN DOE/JANE DOE 1-2 (as yet unidentified individuals); ABC BUSINESS ENTITIES 1-5 (as yet unidentified entities), Defendants X LAUREN N. EHRLICH, an attorney duly admitted to practice law before the Courts of the State of New York, affirms the following to be true under the penalties of perjury: 1. I am an associate of the law firm of MARULLI, LINDENBAUM 8 TOMASZEWSKl, LLP, attorneys for the defendants ARISTOCRAT PLASTIC SURGERY, P.C. and KAYVON TEHRANI, M.D. (a/k/a KEVIN TEHRANI, M.D.). As such, I am fully familiar with the facts and circumstances of this matter and the instant application. 2. This Affirmation is submitted in support of the within application, which seeks an Order compelling plaintiff to remove any and all negative, false online reviews regarding defendants, prohibiting plaintiff from posting any further negative, false reviews pertaining to the defendants, and for such other, further and different relief as to this Court may seem just and proper. 5

6 PROCEDURAL HISTORY 3. Plaintiff JOYCE MAY commenced the within action by filing a Summons and Complaint on or about November 7, A copy of the Summons and Complaint is annexed hereto as Exhibit "A". Issue was joined by the moving defendants with the service of separate Answers on January 6, 2015 (collectively annexed hereto as Exhibit ci 5) "B"). 4. Plaintiff served Bills of Particulars as to defendants on or about March 5, (Exhibit "C"). Therein, plaintiff alleged that she sustained a "burn" under her right eye during Fraxel laser treatment administered at the offices of defendant Aristocrat Plastic Surgery on April 23, During discovery, it has been established that, on that date, plaintiff was treated by Louisa Agate, a licensed esthetician employed by Aristocrat Plastic Surgery. 5. The deposition of plaintiff Joyce May was conducted on November 29, (Exhibit "D"). 6. Plaintiff's counsel deposed both Dr. Kevin Tehrani, and Louisa Agate, on February 28, Copies of the deposition testimony of each witness are attached as Exhibit "E" and Exhibit "F" respectively. 7. During the course of the litigation, it came to defendants' attention that plaintiff posted a false and inflammatory review on Yelp (Exhibit "G"), hereinafter known as "the Yelp review"). Within the Yelp review, plaintiff writes: Unethical doctor! I suffered a serious burn under my eye from a Fraxel treatment under his care by one of his technicians whom did not appear to be properly trained. I now am permanently disfigured and have vision damage to that eye which I believe was caused by the burn - and if this isn't horrific enough, he offered to use injectable filler to try to minimize the dent left by the scar (which 6

7 made it worse!) and then had the nerve to bill me for it! When I refused to pay for the "filler fix", he began legal proceedings against me. See, Exhibit "G". 8. Shortly thereafter, your affirmant's office sent correspondence to plaintiff's counsel, advising him that the review contains statements of purported fact which are wholly false, and which would serve as a basis for a libel claim against plaintiff. Your affirmant's office further advised that if the review was not retracted immediately, an Order to Show Cause would be filed, to compel plaintiff to remove the review, and also seeking sanctions and damages. A copy of the 11/2/17 correspondence is annexed hereto as Exhibit "H". 9. In response, plaintiff's counsel sent correspondence which essentially refused to remove the review, unless defendants agreed to some sort of settlement payment. A copy of plaintiff's counsel's is annexed hereto as Exhibit cci%9 10. As such, defendants were compelled to file the instant application. ARGUMENT 11. Defamation is the injury to one's reputation, either by written expression (libel) or oral expression (slander). Morrison v National Broadcasting Co., 19 N.Y.2d 453, 227 N.E.2d 572 (1967). The elements of libel are: (1) a false and defamatory statement of fact; (2) regarding the plaintiff; (3) which is published to a third party; and which (4) results in injury to plaintiff. Idema v..inwaqer, F. Supp. 2d 361 (SD NY 2000). 12. Moreover, certain statements are considered libelous per se. They are limited to four categories of which includes statements that tend to injure plaintiff in its 7

8 business, trade or profession. Liberman v. Gelstein, 80 NY2d 429, 605 NE2d 344 (1992). Where statements are libelous per se, the law presumes that damages will result and they need not be separately proved. Penn Warranty Corp.. v. DiGiovanni, 810 N.Y.S.2d 807, 813 (Sup. Ct. 2005). 13. Here, it is clear that plaintiff's false and defamatory claims, being posted on review sites such as Yelp, were intended to, and will, cause injury to defendants' plastic surgery practice. Not only is plaintiff claiming that defendants employ technicians who are not "properly trained" to do procedures, but she is further alleging that defendants caused her to suffer vision problems without any competent medical evidence to support such as assertion. See, Exhibit "G". 14. Although libelous claims are defeated by a showing that the published statements are substantially true, Newport Serv. 8 Leasing, Inc. v Meadowbrook Distrib. Corp.,. 18 A.D.3d 454, 794 N.Y.S.2d 426 (2d Dept. 2005), here, it is clear that plaintiff is setting forth unfounded, preposterous claims. In fact, plaintiff's claims are directly refuted by the medical evidence and deposition testimony in the instant matter. 15. Here, plaintiff alleges that the Aristocrat employed technicians who performed her Fraxel treatment was not "properly trained." However, Dr. Tehrani's deposition testimony established that Louisa Agate, who performed the Fraxel treatment at issue, is a licensed esthetician, with many years of experience treating patients with Fraxel, who Dr. Tehrani had observed performing procedures including Fraxel when she began working at Aristocrat, and whose competency Dr. Tehrani had confirmed years before plaintiffs treatment. (Exhibit "F", pp ). 8

9 16. Dr. Tehrani also testified regarding the training provided to the licensed professionals working at Aristocrat Plastic Surgery to perform Fraxel, and his practice of observing their treatment for a period of time after their training. (Exhibit "E", p. 16 (20)). 17. In addition, Louisa Agate was questioned extensively by plaintiffs counsel regarding her training and experience as a licensed esthetician, specifically regarding the treatment of patients with Fraxel. (Exhibit "F", pp. 7(4) - 12(10)). 18. As to the portion of plaintiff's Yelp review regarding the subject Fraxel treatment causing vision damage, plaintiff has failed to provide any medical proof regarding this claim. In fact, plaintiff was required by the Court to provide a report of an expert connecting her alleged visual problems to the Fraxel treatment prior to filing her Note of Issue. Despite being given many months to provide this information, plaintiff had failed to do so before filing the Note of Issue. As such, it is clear that plaintiff has no medical basis for said claim. 19. Moreover, when, a person's statement of opinion implies that it is based upon facts which justify the opinion but are unknown to those reading or hearing it, it is a "mixed opinion" and is actionable. The actionable element of a mixed opinion is not the false opinion itself - it is the implication that the speaker knows certain facts, unknown to his audience, which support his opinion and are detrimental to the person about whom he is speaking. Courts must consider the content of the communication as a whole, as well as its tone and apparent purpose. Sandals Resorts Int'I Ltd. v. Google, Inc., 86 A.D.3d 32, 34, 925 N.Y.S.2d 407, 409 (1st Dept. 2011). 9

10 20. Plaintiff's statements fall within the category of mixed opinion, and are not based upon any truth whatsoever. Additionally, the apparent purpose of plaintiff's posting of negative reviews appears to be to extort a settlement in this case. See, Exhibit "I". 21. Like the situation at hand, in the Matter of Cohen, the Supreme Court had to determine if plaintiff was entitled to obtain the identity of an anonymous poster of a review on Yelp. In making such determination, the court first had to determine if plaintiff had a viable cause of action. The court stated that in order to determine whether there is a cause of action, the inquiry is "whether a reasonable listener or reader could have concluded that the statements were conveying facts about the plaintiff." pl i Goldberq v. Levine, 97 A.D.3d 725, 725, 949 N.Y.S.2d 692 (2d Dept. 2012). The court found that a reasonable reader could conclude that the review conveyed facts about the Petitioner. The review alleged that Petitioner had "drilled out a tiny piece" of the reviewer's tongue and independently caused an infection. This statement has a precise meaning, and is capable of being objectively true or false, and therefore constitutes an alleged actionable fact regarding Petitioner. The statement was published on Yelp.com, a public webpage available to any member of the public. The statement is allegedly injurious to Petitioner's business, and consequently is actionable under a theory of libel per se. Matter of Cohen v. CSC Holdings, LLC-Cablevision, 2015 NY Slip Op 32005(U), 3 (Sup. Ct. 2015). 22. Based upon the foregoing, defendants respectfully request that plaintiff be compelled to remove all negative postings regarding the defendants, and be prohibited from posting any future negative, false reviews regarding the instant matter. 23. No previous application for the relief requested herein has been made. 10

11 WHEREFORE, your affirmant respectfully asks that defendants' application be granted. Dated:New York, New York January 19, 2018 LAUREN N. EHRLICH, ESQ. 11

FILED: NEW YORK COUNTY CLERK 11/07/ /23/ :53 03:57 PM INDEX NO /2014 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 11/07/2014

FILED: NEW YORK COUNTY CLERK 11/07/2014 03/23/2016 02:53 03:57 PM INDEX NO. 805408/2014 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 11/07/2014 03/23/2016 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK