Buch v. Teman, 157336/2018
| Decision Date | 13 May 2019 |
| Docket Number | 157336/2018 |
| Citation | 64 Misc.3d 1221 (A),117 N.Y.S.3d 458 (Table) |
| Parties | Dr. Sandip BUCH, Plaintiff, v. Ari TEMAN, Defendant. |
| Court | New York Supreme Court |
The Engel Law Group, PLLC (Adam E. Engel of counsel), for plaintiff.
Ari Teman, defendant pro se.
The following e-filed documents, listed by NYSCEF document number (Motion 002) 65, 67, 70 were read on this motion to/for DISMISSAL
The following e-filed documents, listed by NYSCEF document number (Motion 003) 73, 74, 77 were read on this motion to/for DISMISS
The following e-filed documents, listed by NYSCEF document number (Motion 005) 89, 90, 91, 95, 96, 97, 99 were read on this motion to/for MODIFY ORDER/JUDGMENT
Motion sequence numbers 002, 003, and 005 are consolidated for disposition.
Plaintiff Dr. Sandip Buch ("Plaintiff") commenced this action on August 6, 2018, by filing a summons and complaint (the "Complaint") containing a single cause of action for defamation per se against defendant Ari Teman ("Defendant") based on Defendant's alleged publication of a defamatory website regarding Plaintiff.
In motion sequence number 002, Defendant moves for an order, pursuant to CPLR 3211(a)(1), (2), (4), (10), and (11), dismissing the Complaint on the following grounds: (1) a defense based on documentary evidence; (2) improper venue; (3) a prior action pending; (4) failure to join a necessary party; and (5) qualified immunity under the New York Not-For-Profit Corporation Law. Plaintiff opposes the motion.
In motion sequence number 003, Plaintiff moves for an order, pursuant to CPLR 3211(a), dismissing the first (defamation per se), second (tortious interference with a business), third (intentional infliction of emotional distress), fourth (breach of contract), fifth (malicious prosecution), sixth (abuse of process), seventh (fraud), and eighth (trade secret theft) counterclaim asserted against Plaintiff in Defendant's Answer With Counterclaims, filed November 9, 2018 (the "Answer").1 Defendant opposes the motion.
In motion sequence number 005, Plaintiff seeks an order: (1) vacating or modifying this court's decision and order, dated November 30, 2018, which denied Plaintiff's motion for a preliminary injunction in motion sequence number 001, and scheduling a hearing on the motion; (2) directing that discovery shall proceed on an expedited basis; and (3) compelling Defendant to produce documents in response to Plaintiff First Request for Documents and Things, dated November 21, 2018. Defendant opposes the motion.
Plaintiff Sandip Buch is a licensed MD practicing medicine in New York, and a comedian. Defendant Ari Teman is a former patient of Plaintiff, a rival comedian, and the alleged publisher of certain potentially defamatory statements regarding Plaintiff.
According to the Complaint, Defendant engaged in an ongoing pattern of harassing and threatening behavior towards Plaintiff including, inter alia , sending defamatory messages regarding Plaintiff to other users on Facebook, threatening comedy club owners in an effort to get Plaintiff blackballed, and stalking and filming Plaintiff during comedy performances. Plaintiff alleges that, sometime in 2018, Defendant's harassment of Plaintiff escalated when Defendant purchased, inter alia , the web domain www.sandipbuch.com (the "Domain"). Defendant then used the Domain to host a series of derogatory statements regarding Plaintiff, which prompted Plaintiff to commence the instant action against Defendant on August 6, 2018.
The derogatory content published at the Domain included, inter alia , statements claiming that: (1) Plaintiff, as a member of PATH Medical Group, was sued for fraud by over 20 patients; (2) Plaintiff, individually, and as a member of PATH Medical Group, was sued for fraud and medical malpractice by multiple patients; (3) Plaintiff was under review by the New York State Medical Board; and (4) Plaintiff "makes a living preying on vulnerable people under the guise of being a doctor who cares, making them sicker so he can extract more of their money." Plaintiff alleges that Defendant maliciously published these statements, despite personal knowledge of their falsity, causing untold damage to Plaintiff's professional and personal reputation, and that Defendant's statements constitute defamation per se.
On or about August 12, 2018, upon learning that the New York Post had published an article regarding this lawsuit against Defendant, Plaintiff drafted a Facebook post (the "Facebook Post") addressing his allegations in the Complaint, the alleged harassment by the Defendant that led Plaintiff to commence the action, and refuting the derogatory statements published at the Domain (see NYSCEF Doc. No. 15). Plaintiff's Facebook Post, which Defendant alleges contains defamatory statements that Defendant harassed Plaintiff, and others, is the basis for Defendant's first counterclaim for defamation per se, and other counterclaims.
On September 14, 2018, Plaintiff filed an Order to Show Cause seeking a preliminary injunction directing, inter alia , that Defendant remove all defamatory statements regarding Plaintiff from the web, including all content then available at www.sandipbuch.com, www.sandipsen.info, and http://sandipsen.webflow.io/sandip-buch. On October 4, 2018, Plaintiff appeared on the Order to Show Cause and requested a TRO. In opposition, Defendant argued he did not have ownership or control over the Domain and, thus, a TRO was inappropriate. The court determined that Plaintiff had failed to meet his burden for a TRO and that certain discovery was required before the court could hear and rule on Plaintiff's motion for a preliminary injunction. Accordingly, the court entered an interim order denying the request for a TRO only (see Hearing Transcript 10/4/18, p.3, ln.07-09, p.13, ln.18-19), scheduling a preliminary conference for November 27, 2018, and extending Plaintiff's time to respond to Defendant's counterclaims to November 9, 2018 (NYSCEF Doc. No. 63). To be clear, and as stated on the record, the court's interim October 4, 2018 order denied only Plaintiff's application for a TRO and held in abeyance Plaintiff's motion for a preliminary injunction to permit discovery to proceed so the parties could schedule a future hearing on Plaintiff's motion for a preliminary injunction (see Hearing Transcript 10/4/18, p.15, ln.11-19).
On November 9, 2018, Defendant filed an amended Answer containing additional factual allegations, affirmative defenses, and ten counterclaims (eight against the Plaintiff). Plaintiff's Facebook Post, which Defendant alleges is defamatory, is the principle support for many of Defendant's counterclaims. In sum, Defendant argues that Plaintiff exploited the information he obtained as Defendant's psychiatrist to publish knowingly false and defamatory statements regarding Defendant (in the Facebook Post and in court filings) that Plaintiff knew would be particularly harmful to Defendant's professional reputation and mental well-being.
Also on November 9, 2018, Defendant filed a motion to dismiss Plaintiff's sole cause of action in the Complaint for defamation per se. Defendant argues that dismissal is warranted because: (1) documentary evidence proves the defamatory statements alleged in the Complaint are true; (2) this court lacks jurisdiction over Defendant because he is a resident of Florida; (3) this action is duplicative of another action between the parties, entitled Ari Teman v. Eric Braverman, M.D., Richard Smayda, D.O., Sandip Buch, M.D., et al. , which is currently pending before the Supreme Court of the State of New York, in New York County, under Index No. 805410/2014; (4) Plaintiff failed to join a necessary party (the current owner of the Domain); and (5) Defendant, as an officer of JCorps International Inc., a volunteer network in the USA, Canada and Israel, is afforded qualified immunity from this litigation under the Not-For-Profit Corporation Law. Plaintiff opposes the motion.
On November 27, 2018, the parties appeared for a preliminary conference in accordance with this court's interim order on October 4, 2018. At the conference, the court participated in a long and detailed discussion with the parties regarding, inter alia , the status of the case, whether discovery should be stayed as a result of Defendant's motion to dismiss, and whether Defendant was required to submit to a deposition on December 14, 2018. After giving the parties a full and fair opportunity to be heard, the court expressly directed (as reflected in the Preliminary Conference Order [NYSCEF Doc. No. 71] ), that the parties proceed with discovery, including Defendant's deposition, and continue gathering the evidence regarding Defendant's ownership of the Domain so the court could hear and rule on Plaintiff's motion for a preliminary injunction. While the court suggested, for purposes of economy and convenience, that the parties attempt to coordinate for Defendant's deposition to be conducted remotely, it did not issue any order limiting Plaintiff's ability to require Defendant to appear for his deposition in person, if the parties were unable to do so. In the absence of such an agreement, Defendant's deposition was to take place as noticed (see NYSCEF Doc. No. 71, ¶ 5), at the offices of The Engel Law Group, PLLC, 280 Madison Avenue, Suite 705, New York, NY 10016 at 11:00 a.m. on December 14, 2018 (see NYSCEF Doc. No. 68).
Rather than commence good faith negotiations with Plaintiff regarding discovery, Defendant continued his efforts to stonewall Plaintiff. First, on December 6, 2018, Defendant emailed Plaintiff stating that he intended to respond to every question at his deposition with the phrase "I'm not going to answer questions without an attorney which I have not been able to retain" and suggesting that the parties just skip the deposition instead of wasting their time and money (NYSCEF Doc. No. 90,...
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