FILED: NEW YORK COUNTY CLERK 02/05/2014 INDEX NO /2014 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 02/05/2014

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1 FILED: NEW YORK COUNTY CLERK 02/05/2014 INDEX NO /2014 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 02/05/2014 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK HYUNG SEOK KIM and YE SOOK KIM, - against Plaintiffs, Index No /2014 YOO HONG CHUNG, SUK YI LEE, MOON HE YUM, AH HYUN CHOI, MICHAEL PEAK, JUNGWOO LEE, TAEGEUN KWON, JEONG MIN LEE, JANGWOOK LEE, JEONG KEUM PARK, and JOHN DOE 1-5 AND JANE DOE 1-5, Defendants. MEMORANDUM OF LAW IN SUPPORT OF MOTION TO DISMISS COMPLAINT I. INTRODUCTION This case is about allegedly defamatory statements made in the context of a religious debate. The alleged statements are non-actionable because of the Common Interest Privilege. The allegations were, at best, non-actionable statements of opinion. Further, the alleged statements are not defamatory. Plaintiffs own Complaint provides some details as to the religious debate. See e.g., Complaint, 13, 14, 16, 17, 22, 25, and 30. The instant Complaint should have been presented as a counterclaim to a previously filed action by the defendants in the above-captioned case. The previously filed case is captioned YOO HONG CHUNG, et al. v. HYUNG SEOK KIM and YE SOOK KIM, et al., Supreme Court of New York, County of New York, Index #150230/2014. It was filed on January 9, The previously filed case concerns a disputed board election, where the quorum and voting requirements were clearly not met. A copy of the Complaint in the prior action is attached hereto 1

2 as Exhibit A, and Defendants request the Court take judicial notice of the facts and claims therein. As to the exhibit attached to the Complaint, please note that the original document, alleged by Plaintiffs to be written in Korean, was not served on at least some, if not all, of the defendants. II. ARGUMENT A. Standard of Review To survive a motion to dismiss the court must find "from [the pleading's] four comers factual allegations... which taken together manifest [a] cause of action cognizable at law... " Guggenheimer v. Ginzburg, 43 N.Y.2d 268, 275, 401 N.Y.S.2d 182, 185 (1977). A plaintiff s failure to allege facts that, if proven, would tend to establish each and every element of a putative claim is fatal under CPLR 321l(a)(7). See Weiner v. Hershman & Leicher, P.C., 248 A.D.2d 193, 193, 669 N.Y.S.2d 583, 584 (1st Dep't 1998); L. Magarian & Co. v. Timberland Co., 245 A.D.2d 69, 69, 665 N.Y.S.2d 413,414 (2d Dep't 1997). While the facts alleged in the Complaint generally must be accepted as true and accorded the benefit of all reasonable inferences, "allegations consisting of bare legal conclusions as well as factual claims flatly contradicted by documentary evidence are not entitled to any such consideration." Gertler v. Goodgold, 107 A.D.2d 481, 485, 487 N.Y.S.2d 565, 569 (lst Dept.), affd, 66 N. Y.2d 946, 498 N.Y.S.2d 779 (1985); accord Mayer v. Sanders, 264 A.D.2d 827, 828, 695 N.Y.S.2d 593, 595 (2d Dept. 1999) (dismissing complaint that merely set forth conclusory allegations). When the plaintiff bases its claims on conclusory allegations and has failed to plead facts sufficient to support the elements of its claims, the motion to dismiss should be granted. See, Giaimo & Vreeburg v. Smith, 192 A.D.2d 41, 44, 599 N. Y.S.2d 841, 843 (2d Dept. 1993); Kohler v. Ford Motor Credit Co., 93 A.D.2d 205, 207, 462 N.Y.S.2d 297, 299 (3d Dept. 1983). 2

3 A claim must also be dismissed where the plaintiff s allegations are contradicted by other claims made by the plaintiff. See, e.g., Ruha v. Guior, 277 A.D.2d 116, 116, 717 N.Y.S.2d 35 (App. Div. 1 st Dept. 2000); Beisheim v. People, 255 A.D.429, 8 N.Y.S.2d 841, 842 (App. Div. 4 th Dept. 1938) ( A complaint that states facts constituting a defense against the cause of action therein set forth, does not state a cause of action. ). B. Plaintiffs Claims are Barred by the Common Interest Privilege. The New York Court of Appeals has carved out an exception to defamation, which applies here. Even though a statement may defamatory, there exists a qualified privilege where the communication is made to persons who have some common interest in the subject matter. Foster v. Churchill, 87 N.Y.2d 744, 751, 665 N.E.2d 153, 642 N.Y.S.2d 583 (1996) citing Liberman v. Gelstein, 80 N.Y.2d 429, 605 N.E.2d 344, 590 N.Y.S.2d 857 (1992). There is a strong public policy favoring the Common Interest Privilege. The rationale for applying the privilege in these circumstances is that so long as the privilege is not abused, the flow of information between persons sharing a common interest should not be impeded. Liberman at 437. The Common Interest Privilege has been applied to allegedly defamatory statements in the religious context. Mihlovan v Grozavu, 72 N.Y.2d 506, 509 (N.Y. 1988); Moyle v Franz, 267 AD 423, (2d Dept.), aff'd 293 N.Y. 842 (N.Y. 1944); Sieger v Union of Orthodox Rabbis of the U.S. & Can., Inc., 1 A.D.3d 180, 182 (1 st Dept. 2003); Kamerman v Kolt, 210 A.D.2d 454, 455 (2d Dept. 1994); Matter of Kantor v Pavelchak, 134 A.D.2d 352, 353 (2d Dept. 1987); Hamrick v Perdue, 57 A.D.3d 317 (1 st Dept. 2008). In the case sub judice, the alleged defamatory statements were made within the congregation of the Temple. See Complaint, 34, 35. The alleged statements concern the 3

4 Temple itself. Clearly, the Common Interest Privilege applies to the alleged communications within the Temple community. Accordingly, Plaintiffs Complaint must be dismissed pursuant to the Common Interest Privilege. C. Abstention Courts Have No Justiciability Over Religious Matters The Establishment Clause of the First Amendment of the United States Constitution prohibits the courts from interfering in or determining religious disputes First Presbyterian Church of Schenectady v. United Presbyterian Churn in U.S. of Amer., 62 N.Y.2d 110, 116, 464 N.E.2d 454 (N.Y. 1984) cert. denied 469 U.S (1984). This doctrine has been applied to dismiss defamation claims within a religious context. Mandel v. Silber, 304 A.D.2d 538, 756 N.Y.S.2d 887 (2d Dept. 2003). As the alleged speech concerns the affairs of the Temple in the context of a religious dispute (Complaint, 13, 14, 16, 17, 22, 25, and 30), such a dispute is not justiciable by secular courts, and must be dismissed. D. No Allegations of Publication by Defendants Nowhere in the Complaint is any allegation that the alleged statements were published by any Defendant. Paragraph 40 of the Complaint merely states that the alleged notice was electronically mailed. It does not allege that the notice was electronically mailed by Defendants. A plaintiff in a libel/slander/defamation case must demonstrate that the defendants culpably published the false and defamatory statements complained of. Lopez v. Univision Communications, Inc., 45 F.Supp.2d 348, 359 (S.D.N.Y. 1999); Naples v. Stefanelli, 2013 WL , *18 (E.D.N.Y. 2013) (to state a claim for libel or slander, a plaintiff must plead that the 4

5 statement was published to a third party by the defendant). That is, if a defamatory statement is published not by its author, but by someone else, there is no defamation. Paragraph 47 attempts to claim some sort of conspiracy, but it does not allege the actions of the individual defendants as to publication of the alleged notice. In fact, nowhere in the Complaint is any allegation that any individual defendant performed any act of publication. Plaintiffs include a citation to the case of Litras v. Litras in paragraph 47 of the Complaint. [A] Plaintiff may plead the existence of a conspiracy in order to connect the actions of the individual defendants with an actionable, underlying tort. Litras v. Litras, 252 A.D.2d 395, 396, 681 N.Y.S.2d 545 (2d Dept. 1998). But Plaintiffs utterly fail to allege the actions of the individual defendants as to publication. The Complaint is completely devoid of any allegations of publication by any Defendant. Plaintiffs have not plead all the requisite elements of defamation, libel, or slander. Accordingly, Plaintiffs Complaint must be dismissed in its entirety. E. The Alleged Statements Were Privileged Matters of Opinion Expressions of opinion are deemed privileged and, no matter how offensive, cannot be the subject of an action for defamation. Mann v. Abel, 10 N.Y.3d 271, 276, 856 N.Y.S.2d 31, 885 N.E.2d 884 (N.Y. 2008), cert. denied 555 U.S. 1170, 129 S.Ct (2009). In conducting an analysis as to whether an allegedly defamatory statements is one of fact or an expression of opinion, the court considers four factors: (1) an assessment of whether the specific language in issue has a precise meaning which is readily understood or whether it is indefinite and ambiguous; (2) a determination of whether the statement is capable of being objectively characterized as true or false; (3) an examination of the full context of the communication in which the statement appears; and (4) a consideration of the broader social context or setting surrounding the communication including the existence of any applicable customs or conventions which might signal to readers or listeners that what is being read or heard is likely to be opinion, not fact. 5

6 Steinhilber v. Alphonse, 68 N.Y.2d 283, 292, 501 N.E.2d 550 (N.Y. 1986). The third and fourth factors require the Court to consider the content of the communication as a whole, as well as its tone and apparent purpose. Brian v. Richardson, 87 N.Y.2d 46, 51, 660 N.E.2d 1126 (N.Y. 1995). A court should not render statements actionable by giving them a strained or artificial construction. Qureshi v. St. Barnabas Hosp. Center, 430 F.Supp.2d 279, 286 (S.D.N.Y. 2006) quoting Dillon v. City of New York, 261 A.D.2d 34, 704 N.Y.S.2d 1, 5 (1st Dept. 1999); Krepps v. Reiner, 588 F.Supp.2d 471, 484 (S.D.N.Y. 2008) ( [C]ourts should not strain to interpret statements as defamatory. ). A statement of opinion that is accompanied by a recitation of the facts on which it is based is protected as a statement of opinion and thus not a false statement of fact. Gross v. N.Y. Times Co., 82 N.Y.2d 146, 153, 603 N.Y.S.2d 813, 623 N.E.2d 1163 (N.Y. 1993) citing Ollman v. Evans, 750 F.2d 970, cert. denied 471 U.S. 1127, 105 S.Ct (1985). A simple expression of opinion based on disclosed... nondefamatory facts is not itself sufficient for an action of defamation, no matter how unjustified and unreasonable the opinion may be or how derogatory it is. Adelson v. Harris, --- F.Supp.2d ----, 2013 WL , *17 (S.D.N.Y. 2013) quoting Restatement (Second) of Torts 566, cmt. c. The rationale behind this rule is straightforward: When the facts underlying a statement of opinion are disclosed, readers will understand they are getting the author's interpretation of the facts presented; they are therefore unlikely to construe the statement as insinuating the existence of additional, undisclosed facts. Adelson quoting Standing Committee on Discipline v. Yagman, 55 F.3d 1430, 1439 (9th Cir.1995). 6

7 In this context, it is clear that in this case, the allegedly defamatory statements were merely non-actionable opinions. Plaintiff claims the defamatory statements were made within a public notice attached as Exhibit A to the Complaint. Complaint, 46. The first page of Exhibit A to the Complaint, the public notice does not contain any defamatory statements, nor do Plaintiffs claim any defamatory statements were made on that page. As to the second page of Exhibit A to the Complaint, there is a clear recitation of facts, and the opinions drawn from those facts. The third paragraph refers to an opinion that Hyung Seok Kim committed an illegal act of transferring the title of Jogeisa Temple s bank account to his own name. The conclusory opinion is whether the transfer of the bank account was illegal. The following three paragraphs recite the facts that there were seven members of the Board of Directors; that there was a sudden notice of a Directors meeting (3 days prior); that three Directors were not given notice of the meeting; that a meeting of the Board of Directors of the Temple took place; that only two Directors (Plaintiffs) were present at the meeting; and that both Directors voted to remove the monk Do- Am from the Temple. Whether or not artfully articulated, these facts state that the vote to remove the monk Do-Am was improper because of a lack of notice and quorum requirements. It is in this context that the act of transferring the bank account was opined to be illegal. In the sixth paragraph, the opinion This clearly is a criminal act of embezzlement of public funds is preceded with statements that the bank account of the Jogeisa Temple was formerly under joint control of the monk Do-Am and Plaintiff Hyung Seok Kim, and that Hyung Seok Kim changed control of the account to his name. It is clear from the context that the embezzlement of public funds referred merely to the change of control of the bank account of the Temple, an account which the congregation considers public funds of the Temple. 7

8 The illegal act referred to in the fifth paragraph refers to the failure to notify three members of the Board of Directors of the upcoming meeting of the Board. It is the context of a failure to notify all Directors of an upcoming meeting that the act was opined to be illegal. The last sentence of the fifth paragraph uses the term fraudulent and is the only reference to fraud of any kind in the Exhibit. The prior sentence states that there were two or three requests for postponement of the meeting of the Board of Directors by two persons. The requests for postponement were made for personal reasons and because of the imminent date (short notice) of the meeting. The meeting was held any way two Directors (both Plaintiffs). These facts are followed by the conclusory opinion that This proves that this was a premeditated illegal and fraudulent conspiracy. As thus described, the alleged defamatory statements were merely opinions, based upon disclosed non-defamatory facts. Read in context, the alleged defamatory statements are nonactionable opinion, and the case must be dismissed. Other New York courts have similarly dismissed defamation claims as opinion. In Kidd v. Epstein, 79 A.D.3d 650, 915 N.Y.S.2d 38 (1 st Dept. 2010), an was published to the shareholders of a residential cooperative building by one of the shareholders. Kidd. The asserted that the president of the cooperative s board of directors obtained a fake letter from his plumber for use in a lawsuit against another shareholder for damages from a water leak. Kidd. This was held to be non-actionable opinion because the contained a recitation of facts supporting that assertion. Kidd. The Kidd Court further discussed that the recipients of the were aware of the ongoing dispute between the president and the shareholder. Kidd. This is similar to the instant case. The Temple congregation is aware of the religious dispute in the Temple. See e.g., Complaint, 13, 14, 16, 17, 22, 25, and 30. Further, the allegedly defamatory 8

9 statements at issue are merely non-actionable opinion accompanied by a recitation the facts supporting the conclusory opinion. In Galasso v. Saltzman, 42 A.D.3d 310, 839 N.Y.S.2d 731 (1 st Dept. 2007), the alleged defamatory statements were plaintiff was no good and a criminal, that plaintiff was engaged in criminal conduct and had committed crimes against property claimed by defendants in an effort to destroy both our properties and our beach, and that defendant had plaintiff checked out, and I don't care if he's connected, I'm going to get him. Galasso at 311. The Court concluded this was non-actionable opinion because statements were made in context of heated dispute among residential property owners, and listeners were familiar with issues in dispute and with respective sides' positions. Id. This is similar to the case at bar as the Temple congregation is aware of the religious dispute in the Temple. See e.g., Complaint, 13, 14, 16, 17, 22, 25, and 30. The alleged defamatory statements can be considered noting more than non-actionable opinion, which requires dismissal of Plaintiffs Complaint. [this space intentionally blank] 9

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