FILED: NEW YORK COUNTY CLERK 03/12/ :46 PM INDEX NO /2017 NYSCEF DOC. NO. 62 RECEIVED NYSCEF: 03/12/2018

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1 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK x ANDREA TANTAROS, Index No /2017 Plaintiff, Hon. Gerald Lebovits - against - Mot. Seq. No. 004 NOMIKI KONST, Defendants x PLAINTIFF'S MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR APPROVALT A~ OF ~M A~ ALTERNATIVE M~M~ 1AM' M V~ ~~MW SERVICE EM~~ A~ AND1~ TO M ~ ~WMM~W EXTEND 1~ TIME M~T~ TO SERVE SUMMONS AND COMPLAINT ON DEFENDANT NOMIKI KONST Plaintiff Andrea Tantaros respectfully submits this Memorandum of Law in Support of 1E a f' A 1 C A 1a a 0 3 a K' a 3 T a 0 0 her Motion for Approval of Alternative Service and to Extend Time to Serve Summons and Complaint on Defendant Nomiki Konst pursuant to CPLR 308(5) and 306-b. Background On April 19, 2017, Ms. Tantaros' former counsel, Judd Burstein filed the Summons and Complaint. See NYSCEF Doc. No. 1 (Summons); NYSCEF Doc. No. 2 (Complaint). The primary event giving rise to Ms. Tantaros's cause of action for libel per se is a defamatory social media statement published by Defendant Nomiki Konst on her twitter account on April 18, 2017, in which she falsely asserts that Ms. Tantaros physically attacked and threatened her (the "Konst Tweet"). Compl. 4. Including because of its wide reaching public dissemination, this defamatory statement has caused significant and devastating reputational damage to Ms. Tantaros, a well-known anchor, political analyst and columnist. DB1/ of 7

2 At the time the Complaint was filed, Ms. Tantaros was represented by her former counsel, Judd Burstein. On August 17, 2017, the time to serve Defendant Konst with the Summons and Complaint expired pursuant to CPLR 306-b. At this juncture, Ms. Tantaros was still represented by Mr. Burstein. Mr. Burstein stated that "I have not served Konst as of the date of this Affirmation because my research shows that she lives in California. Because defamation claims are excluded from New York's long-arm jurisdiction statute, CPLR 302, my goal is to ensure that this Court has personal jurisdiction over Konst by serving her personally within the State." Burstein Aff., 6 (Aug. 11, 2017) (NYSCEF Doc. No. 38). On September 21, 2017, upon Ms. Tantaros' Tantaros decision to bring in new counsel, Mr. Burstein filed a motion to withdraw as her counsel in this and several other actions. NYSCEF Doc. No. 46. On September 29, 2017, the undersigned entered appearances as counsel for Ms. Tantaros. NYSCEF Doc. No On October 4, 2017, Ms. Tantaros filed a motion to extend the time to serve Konst. NYSCEF Doc. No. 50. The basis for the motion was that Defendant Konst appeared at the time to be located in New York based on her personal web page and Twitter bio, which listed her location as New York, New York (and specifically in Astoria, Queens). See Declaration of Martha B. Stolley, NYSCEF Doc. No. 51. On January 11, 2018, the Court entered an order granting Ms. Tantaros' Tantaros motion and permitted Ms. Tantaros a 60-day extension to serve Defendant Konst. See NYSCEF Doc. No. 58. Unsuccessful Efforts to Serve Defendant Konst Morgan Lewis and Ms. Tantaros have made several unsuccessful efforts to serve Defendant Konst. Counsel for Ms. Tantaros ran a "skip trace" to locate an address for Ms. Konst. The skip trace identified two addresses current as of December The addresses are 2 of 7

3 (1) 5511 Broadway Street, Lancaster, NY , and (2) th Street Apt. E, Santa Monica, CA See Declaration of Jawad B. Muaddi $10. The address in Lancaster, NY is a business address for Konst Law and attorney Harry N. Konst, who appears to be the father of Defendant Konst. Muaddi Decl. 11. Accordingly, the address in Lancaster, NY is unlikely to be Defendant Konst's residential address or place of business. Nevertheless, a copy of the complaint was sent to that address. Muaddi Decl. Exh. D. Out of an abundance of caution, on January 24 and January 31, 2018, Ms. Tantaros attempted service at the California address, even though Defendant Konst's social media sites have continued to indicate she lives at some unidentified location in New York, New York. Those attempts were not successful, as reflected in the accompanying Affidavit of Leon Moore, dated February 6, 2018, a copy of which is attached to the Muaddi Decl. as Exh. C. Ms. Tantaros has also continued her efforts to locate Ms. Konst in New York. However, to date, those attempts have also not been successful. Specifically, Ms. Tantaros employed (" Pinkerton" Pinkerton Consulting & Investigations, Inc. ("Pinkerton"), in an attempt determine and serve Ms. Konst at her current residence. Through deep database and resource scanning, Pinkerton fully identified the target individual as "Nomiki Daphne Konst," approximately 34 years old with a recent residency identified as 568 Grand Street, Apartment 1502, New York, NY See Pinkerton Field Service and Intelligence Report attached to the Muaddi Decl. as Exh. E. Pinkerton also performed a broad online scan to identity any possible associated social media profiles affiliated with the target in order to provide any additional intelligence. Id. In doing so, Pinkerton identified a confirmed Twitter profile, https//twitter.com/nomikikonst, Facebook profile, and Instagram profile, 3 of 7

4 In addition, a personal domain dedicated to the target individual was identified as Id. Using that information, Pinkerton had a retired corrections officer with over 22 years of service with the New York Department of Corrections and 11 years in service with the New York Police Department, Anti-Gang Unit and Intelligence, attempt to make service on Ms. Konst. Muaddi Decl. Exh. E atp. 4. On February 27, 2018, Pinkerton attempted service at Ms. Konst's previously identified address, 568 Grand Street, Apartment 1502, New York, NY Despite remaining at the location for several hours Pinkerton could not locate Ms. Konst. Pinkerton also learned that Ms. Konst did not currently reside at this location and no intelligence could be secured from sources at the location to identify any possible forwarding address or current location. Efforts to serve Ms. Konst that day were terminated upon receipt of this information. On March 6, 2018, Pinkerton made another attempt to serve defendant, at a second address identified by Pinkerton as a possible residence of Ms. Konst. That attempt was also not successful, as reflected in the accompanying Affidavit of Norman Said, dated March 9, 2018, a copy of which is attached to the Muaddi Decl. as Exh. F. Tellingly, Pinkerton's report notes that's its inability to serve Ms. Konst "indicates that the [defendant] is possibly eluding service and may be receiving assistance and aid from unidentified assets/sources to hinder any attempts at service." Muaddi Decl. Exh. E at p. 5. Service by Publication and Is Likely to Put Defendant Konst on Notice of this Action According to Ms. Konst's website, her address is nomiki@tytnetwork.com. Muaddi Decl. 12, Muaddi Decl. Exh. A. The tytnetwork.com web address is associated with The Young Turks Network. The Young Turks Network has an address in Los Angeles, California but apparently has no address in New York. Muaddi Decl. 13, Muaddi Decl. Exh. G. According to the web site of The Young Turks Network, Defendant Konst is currently 4 of 7

5 employed as an investigative reporter. Muaddi Decl. 14, Muaddi Decl. Exh. H. Defendant Konst's bio page on The Young Turks Network's site also lists a contact address of press@tytnetwork.com. Id. There is no indication that Defendant Konst works out of The Young Turks Network's Los Angeles address, as her online information indicates that she works remotely and is based in New York. Defendant Konst is an active user of social media and electronic communications, including Twitter and Facebook. According to her Twitter bio, Defendant Konst has published approximately 48,700 tweets since joining Twitter in October Muaddi Decl. 16, Muaddi Decl. Exh. B. She also routinely posts messages, photos and communicates via Facebook. Muaddi Decl. 22. Her twitter bio still states that she is a resident of Astoria, Queens. Muaddi Decl. Exh. B. Based on Defendant Konst's active social media presence, frequent use of electronic communications and role as an on-line reporter, it is reasonable to believe that she frequently checks messages sent to the nomiki@tytnetwork.com address. As an investigative reporter, it is likely that she would also receive messages sent to the press@tytnetwork.com address. Argument CPLR 308(1), (2), and (4) provide for service upon an individual or their representative within the state at their place of abode or place or business, by first class mail, or by means of affixing a summons to the door of such aforementioned locations. CPLR 308(5) provides for service upon an individual "in such manner as the court, upon motion without notice, directs, if service is impracticable under paragraphs one, two and four of this section." section. Such alternative service may be made by any method designed to provide notice to the defendant of the lawsuit upon a showing that the plaintiff made reasonable efforts to serve the defendant 5 of 7

6 through traditional means. See Baidoo v. Blood-Dzraku, 5 N.Y.S.3d 709, 715 (Sup. Ct. N.Y. Cty. 2015) (allowing service via social networking website where plaintiff demonstrated inability to otherwise serve defendant by the methods in CPLR 308); Hollow v. Hollow, 747 N.Y.S.2d 704, 706 (N.Y. Sup. Ct. Oswego Cty. 2002) (allowing service via on defendant in Saudi Arabia after plaintiff exercised diligence in service attempts). New York courts allow service to an address as an alternative method of service, under CPLR 308(5). See Baidoo, 5 N.Y.S.3d at 711 (noting that "while the legislature has yet to make a statutorily authorized method for the service of process, courts are now routinely permitting it as a form of alternative service"). This Court also has broad discretion "to fashion other means [of service] adapted to the particular facts of the case before it." Liebeskind v. Liebeskind, 449 N.Y.S.2d 226, 228 (1st Dep't 1982), aff'd, 58 N.Y.2d 858 (1983). As detailed supra, Ms. Tantaros has gone through considerable effort to serve Defendant Konst within the state in a manner authorized by the CPLR. However, Ms. Tantaros has not been able to locate a personal or business address in New York for Defendant Konst or to serve her at a traditional address. Based on Defendant Konst's active use of social media and electronic communications, it is highly likely that service by publication or will be sufficient to provide notice of this action. Conclusion For the foregoing reasons, Ms. Tantaros respectfully requests that the Court grant her Motion for Approval of Alternative Service and enter an Order approving the alternative service made on Defendants Konst by or publication within 30 days of such Order, and for such other and further relief as the Court deems just and proper. 6 of 7

7 Dated New York, New York March 12, 2018 Respectfully submitted, MORGAN, LEWIS & BOCKIUS LLP By /s/ Jawad B. Muaddi Jawad B. Muaddi Martha B. Stolley 101 Park Avenue New York, New York (212) Attorneys for Plaintiff Andrea Tantaros 7 of 7