FILED: NEW YORK COUNTY CLERK 03/18/2014

NYSCEF DOC. NO. 10

INDEX NO. 152439/2014 RECEIVED NYSCEF: 03/18/2014

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK -----------------------------------------------------------------X ADAM R. ROSE, Index No. Petitioner, -against-

YAHOO! INC. and its wholly-owned subsidiary, TUMBLR, INC., AUTOMATTIC, INC., and TWITTER, INC., Respondents. -----------------------------------------------------------------X

MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR PRE-ACTION DISCLOSURE

GUZOV, LLC Debra J. Guzov, Esq. Stephanie A. Prince, Esq. 900 Third Ave., 5th Floor New York, New York 10022 Tel: 212-371-8008 Attorneys for Petitioner Adam R. Rose

Petitioner Adam R. Rose, by and through his undersigned counsel, respectfully submits this Memorandum of Law in Support of the Order to Show Cause Compelling Disclosure of Identity pursuant to CPLR § 3102(c), compelling Yahoo! Inc. and/or its wholly-owned subsidiary Tumblr.com (collectively referred to as “Tumblr”), Automattic, Inc., (“Automattic”) and Twitter, Inc. (“Twitter”) to disclose identifying information associated with the person or persons (hereinafter “Bloggers”) who posted several weblogs, which contained actionable, defamatory statements about Mr. Rose on websites under the operation and control of Tumblr, Automattic, and Twitter. In light of the fact that (1) Mr. Rose has demonstrably meritorious claims for defamation against the anonymous blogger[s] and (2) the identifying information is material and necessary to the framing of his complaint, Petitioner respectfully requests that this Court issue the requested order. No previous application for an order to show cause has been made in this or any other court. Affirmation of Debra Guzov, (“Guzov Aff.”) ¶ 6. STATEMENT OF FACTS In or about January of 2013, Mr. Rose heard from an industry colleague that a blog that had historically contained long, somewhat incomprehensible posts accusing dozens of people and entities connected to the sale of the Stuyvesant Town-Peter Cooper Village (“Stuy Town Property”) with all sorts of wrongdoing, now contained some vicious, patently false and defamatory statements about him, personally. See Affidavit of Adam R. Rose in Support of Order to Show Cause Compelling Disclosure of Identity (“Rose Aff."') ¶ 3. Mr. Rose has discovered four (4) entries within the last six (6) months, dated on or about March 11, 2014, March 2, 2014, February 3, 2014 and January

7, 2014 on a weblog entitled “Tishman Speyer Stuyvesant Town (NYC) Fraud” located at the website: http://tishmanspeyerfraud.tumblr.com (“the Tumblr Blog”). Rose Aff. ¶ 4. Based on the context and subject matter of the postings, as well as fact that his full name and the name of his company, Rose Associates, are published on the Tumblr Blog, he can confirm that the contents are about him. Id. Mr. Rose was alarmed to see that the Tumblr Blog entries and the related commentary were used to falsely describe him as a “corrupt white collar criminal,” to accuse him of participating in illegal, criminal activity, including an “illegal tax fraud scheme,” to falsely accuse him of being under criminal investigation by the federal authorities, and, perhaps the worst, of having a “connection to child pornography.” Rose Aff. ¶ 5. The individual entries on the Tumblr Blog speak for themselves. They are so clearly aimed at casting him as a criminal racketeer (even claiming Mr. Rose was under “indictment”) accusing him of tax fraud and of concealing child pornography and are unwarranted, hurtful, embarrassing, potentially damaging to his reputation in the real estate industry and, most significantly, they are flatly untrue. Rose Aff. ¶ 7. Mr. Rose has never been investigated, arrested, arraigned, indicted or charged with any criminal activity. Id. On or about August 1, 2013, Mr. Rose discovered another website, http://tishmanspeyerfraud.wordpress.com, (the “Wordpress Blog”) with one (1) entry dated July 3, 2013, which is the corresponding date that the blog entry was published in permanent form on the Internet. Rose Aff ¶ 8. Based on the fact that his full name and the name of his business are both used on this blog, Mr. Rose knows the contents are about him. Id. The Wordpress Blog entry and the other posted commentary were used to

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describe him as a “Criminal Mischief Defendant[],” and to accuse him of illegal, criminal activity, including “felony criminal mischief,” and “felony destruction” of someone’s property, “real estate fraud and tax fraud” and corruption. Rose Aff. ¶ 9. The statements and suggestions made on the Wordpress Blog entry are malicious and untrue. 1 Id. In addition, at the web address https://twitter.com/StuyTownFraud/, Mr. Rose discovered a Twitter account entitled TishmanSpeyerFraud, (the “Twitter Account”) using the name “@StuyTownFraud” where Mr. Rose saw three (3) entries, dated February 3, 2014, July 4, 2013 and September 2, 2013, which are the corresponding dates that the entries were published in a permanent form on the internet. Rose Aff. ¶ 11. Based on the subject matter and fact that his full name is published on this Twitter Account, Mr. Rose can confirm that the contents are about him. Id. The headline featured prominently in one posting is particularly galling and reveals the true malice of the author: BREAKING NEWS: What do Racketeering Defendant Adam Rose, Child Pornography and Disney all have in common? Rose Aff. ¶ 11. Like the two blogs, the Twitter Account posts and related comments repeat and rehash the same patently false claims of Mr. Rose’s illegal, criminal activity, including having a connection to child pornography, being a “violent criminal,” a racketeer, of “hate crimes,” and alluding to his having served “prison sentences.” Rose Aff. ¶ 12. The statements and suggestions made on the Twitter Account posts are malicious and untrue. Id.

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The entry on the Wordpress Blog is obviously written by the same person who wrote the Tumblr Blog and is also clearly aimed at casting Mr. Rose as a criminal, accusing him of various felonies, fraud and corruption and is unwarranted, hurtful, embarrassing, potentially damaging to his reputation in the real estate industry and, significantly, flatly untrue. Rose Aff. ¶ 10.

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Every single one of the statements discussed above is an outright lie. The real estate industry is very much dependent on community standing, business and personal reputations. Rose Aff. ¶ 14. The Tumblr Blog, Wordpress Blog, and Twitter Account are malicious, untrue and extremely damaging to Mr. Rose’s professional reputation. Rose Aff. ¶ 6. For thirty (30) years, Mr. Rose has been involved in all aspects of the real estate industry, including development, design, leasing, sales and management of highrise apartment buildings. Id. Statements falsely accusing him of such abhorrent criminal activity affect his reputation and desirability as a property developer and/or manager. Id. This defamatory content goes far beyond the sphere of protected free speech. These are malicious, actionable lies whose falsity can easily be proven. However, in order to proceed with a defamation claim against the author of these posts, it is necessary that Mr. Rose obtain this identifying information. Respondents herein require a court order before they will turn over identifying information of anonymous bloggers/tweeters. Guzov Aff. ¶ 3-6. Therefore, Mr. Rose respectfully requests that an order be issued compelling Tumblr, Automattic, and Twitter to identify the Blogger[s] who created the defamatory weblogs and tweets described herein.

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ARGUMENT In the Guzov Affirmation and the accompanying Rose Affidavit, Petitioner has set forth facts sufficient for this Court to compel Tumblr, Automattic, and Twitter to disclose the identity(ies) of the anonymous Blogger(s) who has been publishing the aforementioned defamatory statements. It is respectfully submitted and will be demonstrated below that this application should be granted in all respects and result in orders requiring defendants to produce forthwith the Blogger's name(s), address(es), email address(es), phone number(s), IP address(es) and IP account history and any other information that the defendants may possess that would assist in ascertaining the Blogger’s identity(ies). I. STANDARD OF REVIEW New York's CPLR §3102(c) allows a potential plaintiff to seek discovery of certain information prior to commencement of an action as follows: "Before an action is commenced, disclosure to aid in bringing an action, to preserve information or to aid in arbitration may be obtained but only by court order." CPLR §3102(c) [McKinney 2007]; see also Cohen v. Google, 25 Misc. 3d 945, 952, 887 N.Y.S.2d 424 (2009). A request for pre-action disclosure is most properly sought by the commencement of a special proceeding (see CPLR §3102(c), Commentary C3102:6 (2007); see also Daly v. 26-28 Market St., Inc., 21 A.D.3d 853, 801 N.Y.S.2d 596 (lst Dep't 2005). New York courts routinely grant pre-action disclosure under CPLR § 3102(c) for the purpose of ascertaining the identities of defendants as necessary to bring an action (see, e.g., Alexander v. Spanierman Gallery, LLC, 33 A.D.3d 411, 822 N.Y.S.2d 506 (1st Dep’t 2006); Toal v. Staten Island University Hospital, 300 A.D.2d 592, 752 N.Y.S.2d 372 (2d

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Dep't 2002); Perez v. New York City Health and Hosps. Corp., 84 A.D.2d 789, 44 N.Y.S.2d 23 (2d Dep’t 1981)). In order to be entitled to the relief described in CPLR §3102(c), however, the movant must first show that it has a meritorious cause of action and that the information being sought is material and necessary to the actionable wrong." Liberty Imports, Inc. v. Borguet, et. al., 146 A.D.2d 535, 536, 536 N.Y.S.2d 784 (1st Dep't 1989). With respect to using a CPLR §3102(c) petition to unmask persons who anonymously defame others via the Internet, New York Courts have held that it is appropriate for the respondent to "provide [the] petitioner with information as to the identity of the [persons], specifically that person's or persons' name(s), address(es), email address(es), IP address(es), telephone number(s), and all other information that would assist in ascertaining the identity of that person or persons." Cohen, 25 Misc. 3d at 952. II. PETITIONER IS ABLE TO ESTABLISH A LIKELIHOOD OF SUCCESS ON THE MERITS BASED ON THE ANONYMOUS BLOGGER’S DEFAMATORY STATEMENTS WHICH CONSTITUTE LIBEL PER SE A CPLR §3102( c) "petitioner is entitled to pre-action disclosure of information as to the identity of an anonymous blogger, where, like here, he has “sufficiently established the merits of [his] proposed cause of action for defamation against that person or persons, and the information sought is material and necessary to identify the potential defendants." Cohen, 25 Misc. 3d at 949, (citing Matter of Uddin v. New York City Transit Authority, 27 A.D.3d 265, 810 N.Y.S.2d 198 (1st Dep't 2006) and Matter of Stewart v. New York City Transit Authority, 112 A.D.2d 939, 492 N.Y.S.2d 459 (2d Dep't 1985)). Defamation is defined as the “making of a false statement of fact ‘which tends to 6

expose the plaintiff to public contempt, ridicule, aversion or disgrace’.” Sandals Resorts Int’l Ltd. v. Google, Inc., 86 A.D.3d 32, 38 925 N.Y.S.2d 407, 412 (1st Dep’t. 2011) (internal citations omitted). The elements of a cause of action for defamation consist of "a false statement, published without privilege or authorization to a third-party, constituting fault as judged by, at a minimum, a negligence standard, and it must either cause special harm or constitute defamation per se." Dillon v. City of New York, 261 A.D.2d 34, 38, 704 N.Y.S.2d 1, 6 (1st Dep't 1999). Additionally, New York courts have recognized that in finding a cause of action for libel, the statements at issue must have been statements of fact, as opposed to statements of opinion. See, e.g., Penn Warranty Corp. v. Di Giovanni, 10 Misc.3d 998, 1002 (N.Y. Sup.Ct. 2005). A. Factual Nature of the Defamatory Statements

When determining whether a given statement is an expression of opinion or an assertion of fact, the determination is to be made “on the basis of what the average person hearing or reading the communication would take it to mean.'' Steinhilber v. Alphonse, 68 N.Y.2d. 283, 290, 501 N.E.2d 550, 508 N.Y.S.2d 901 (N.Y. 1986). Furthermore, in reaching such a determination, the factors to be considered are: (1) whether the specific language in issue has a precise meaning which is readily understood; (2) whether the statements are capable of being proven true or false; and (3) whether either the full context of the communication in which the statement appears or the broader social context and surrounding circumstances are such as to ‘signal ... readers or listeners that what is being read or heard is likely to be opinion, not fact.’ Grossi v. New York Times Co., 82 N.Y.2d. 146, 153, 623 N.E.2d 1163, 603 N.Y.S.2d 813 (1993) (internal citations omitted). The numerous egregious statements at issue in this case were clearly asserted not

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as mere opinions, but rather as facts, which were specifically designed to command the attention and immediate response of their intended readers. Statements are considered defamatory, in that they are statements of fact and not opinions where their tone is “straightforward and declaratory, and does not appear to be intended as a juvenile attempt to achieve humor.'' Suarez v. Angelet, 90 A.D.3d 906, 935 N.Y.S.2d 599 (2d Dep't 2011). Statements such as those alleging that Petitioner Rose is being “criminally investigated" or that he is connected to child pornography constitute such straightforward, factual indictments. B. Publication of the Statements

By posting the writings on the two blogs and Twitter, the Blogger broadcasted the libelous statements on the Internet and clearly published and broadcasted the statements to many more people than just the Petitioner. The Blogger was broadcasting to anyone who could find the page or who was searching for information on Adam Rose or his company, Rose Associates. The blog posts were published with the specific intention of harming the Petitioner personally and professionally. C. False and Defamatory Nature of the Statements

The Court need only examine the specific statements made in the posts and consider the manners and contexts in which they were published in order to determine that the postings and e-mails were defamatory. Petitioners will proceed under a theory that both the blog postings and each of the e-mails was libelous per se. The definition of libel per se is “any written or printed article ... [which] tends to expose the plaintiff to public contempt, ridicule, aversion or disgrace or induce an evil opinion of him in the minds of right-thinking persons, and to deprive him of their friendly intercourse in

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society.'' Rinaldi v. Holt, Rinehart & Winston, Inc., 42 N.Y.2d 369, 379, 366 N.E.2d 1299, 397 N.Y.S.2d 943 (N.Y. 1977). Four categories are considered libelous per se. They are statements that “(1) charge plaintiff with a serious crime[] (2) tend to injure plaintiff in its business, trade or profession, (3) plaintiff has some loathsome disease, or 4) impute unchastity.” Floyd Harbor Animal Hosp., v. Doran, 2009 N.Y. Misc. LEXIS 5610, 19 - 20, 2009 N.Y. Slip Op 32868(U) (N.Y. Sup.Ct. 2005). Where statements are libelous per se, damages are presumed and need not be separately proved. Id. The published statements complained of herein are libelous per se because each tends to injure the Petitioner in his business, trade or profession, as they are aimed at Petitioner’s real estate business and many also charge Petitioner with serious crimes, including fraud, a connection to and concealment of child pornography, racketeering and being under criminal investigation by federal authorities. Rose Aff. ¶¶ 4-12. D. Injury to the Petitioner

As noted by the Court in Dillon v. City of New York, where a plaintiff is able to prove defamation per se, injuries flowing from the defamation need not be proven. 261 A.D.2d at 38. As a result, "the law presumes damage to the [libeled] individual's reputation so that the cause is actionable without proof of special damages.'' Vian v. Kossman, 161 A.D.2d 574, 575, 555 N.Y.S.2d 152, 154 (2d Dep't 1990). Therefore, Petitioner “need not establish damages as an element of [his] defamation cause of action, and ... failure to do so [would] not require [dismissal]." Id. at 576. Although no proof of damages is necessary in this case, Petitioner has still demonstrated such damages in the Rose Affidavit, including damage to his professional reputation and his business. Rose Aff. ¶ 6, 14.

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