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INDEX NO.

157989/2014

FILED: NEW YORK COUNTY CLERK 11/11/2014 03:30 PM


NYSCEF DOC. NO. 10

RECEIVED NYSCEF: 11/11/2014

SUPREME COURT OF THE STATE OF NEW YORK


COUNTY OF NEW YORK
---------------------------------------------------------------- X
:
DAMON DASH,
: Index No. 157989/2014
:
:
Plaintiff,
:
:
v.
:
:
LEE DANIELS, LEE DANIELS
:
ENTERTAINMENT LTD., SIMONE SHEFFIELD, :
CANYON ENTERTAINMENT,
:
:
Defendants.
:
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MEMORANDUM OF LAW IN SUPPORT OF SIMONE SHEFFIELD AND CANYON


ENTERTAINMENTS MOTION TO DISMISS THE VERIFIED COMPLAINT

STROOCK & STROOCK & LAVAN LLP


Counsel for Defendants Simone Sheffield
and Canyon Entertainment
180 Maiden Lane
New York, New York 10038
(212) 806-5400
and
Southeast Financial Center
200 South Biscayne Blvd., Suite 3100
Miami, Florida 33131
(305) 358-9900

TABLE OF CONTENTS
Page(s)

TABLE OF AUTHORITIES ............................................................................................. iii


I.

PRELIMINARY STATEMENT .............................................................................1

II.

LEGAL ARGUMENT .............................................................................................2


A.

The Court Lacks Personal Jurisdiction over the Sheffield Defendants


and Plaintiff Has Not Pled Any Facts to Support a Finding of
Jurisdiction over Them. .....................................................................................2

B.

The Complaint Fails to State a Cause of Action. ...............................................5


1.

C.

D.

Plaintiffs Defamation Claim is Insufficiently Pled.........................6


a.

The Complaint Fails to Set Forth the Allegedly


Defamatory Words. ..............................................................8

b.

The Complaint Fails to Plead Actual Malice ...................10

Documentary Evidence Mandates Dismissal of the Defamation Claim. .........11


1.

Documentary Evidence Vitiates the Allegations in


Plaintiffs Complaint. .....................................................................12

2.

The Documentary Evidence Establishes that the Alleged


Defamatory Statements are Substantially True and,
Therefore, Non-Actionable. ...........................................................14

3.

The Documentary Evidence Establishes that Dash Is A


Libel-Proof Plaintiff Whose Reputation Was Already
Tarnished........................................................................................15

Plaintiffs Claim for Tortious Interference with a Business


Relationship Must Be Dismissed .....................................................................17
1.

The Complaint Fails to State a Cause of Action for Tortious


Interference with a Business Relationship. ....................................17

2.

Plaintiff Fails to Allege Interference with a Third Party. ..............18

3.

Plaintiff Does Not Allege That The Sheffield Defendants


Acted Solely Out Of Malice Or Used Improper Or Illegal
Means That Amounted To A Crime Or Independent Tort. ...........19
i

4.

III.

Plaintiff Does Not Allege with Any Particularity How the


Sheffield Defendants Purported Interference Caused
Injury to any of Plaintiffs Relationships With Third
Parties. ............................................................................................21

CONCLUSION ......................................................................................................21

ii

TABLE OF AUTHORITIES
Page(s)
CASES
805 Third Ave. Co. v. M.W. Realty Associates,
58 N.Y.2d 447 (1983) (affirming dismissal of complaint where contract
attached to complaint contradicts plaintiffs claims) .................................................... Page | 11
AIM Intern. Trading, L.L.C. v. Valcucine S.p.A.,
2003 WL 21203503 (S.D.N.Y. May 22, 2003) ............................................................ Page | 18
Amaro v. Gani Realty Corp.,
60 A.D. 3d 491 (1st Dept 2009) .................................................................................... Page | 6
Biro v. Conde Nast,
883 F.Supp.2d 441 (S.D.N.Y. 2012)............................................................................. Page | 14
Bordoni v. New York Times Co., Inc.,
400 F. Supp. 1223 (S.D.N.Y. 1975)................................................................................ Page | 8
Carvel Corp. v. Noonan,
3 N.Y.3d 182 (2004) ..................................................................................................... Page | 20
Cerasani v. Sony Corp.,
991 F. Supp. 343 (S.D.N.Y. 1998)................................................................................ Page | 15
Darrow v. Deutschland,
119 A.D.3d 1142, 990 N.Y.S.2d 150 (3d Dept 2014) ................................................... Page | 4
Deer Consumer Prods., Inc. v. Little,
35 Misc.3d 374 (N.Y. Sup. 2012) ................................................................................... Page | 3
Deer Consumer Prods., Inc. v. Little Group,
2012 N.Y. Slip Op. 52157(U), (N.Y. Sup. 2012) ........................................................... Page | 4
Deer Consumer Prods., Inc. v. Little Group,
2012 N.Y. Slip Op. 52157(U) (N.Y. Sup. 2012) ............................................................ Page | 5
Discover Group, Inc. v. Lexmark Intern., Inc.,
333 F.Supp.2d 78 (E.D.N.Y. 2004) .............................................................................. Page | 17
Duane Jones Co. v. Burke,
306 N.Y. 172, 117 N.E.2d 237 (1954) .......................................................................... Page | 21
Empire One Telecommunications, Inc. v. Verizon New York, Inc.,
26 Misc. 3d 541 (N.Y. Sup. 2009) ................................................................................ Page | 18

iii

Fine v. Dudley D. Doemberg & Co.,


203 A.D.2d 419 (2d Dept 1994) .................................................................................. Page | 17
First Trust Nat. Ass'n v. Moses & Singer,
2000 WL 1093054 (S.D.N.Y. Aug. 4, 2000) ................................................................ Page | 19
Fontanetta v. Doe,
73 A.D.3d 78 (2d Dept 2010) ...................................................................................... Page | 11
Fordham v. Islip Union Free School Dist,
662 F.Supp.2d 261 (E.D.N.Y. 2009) .............................................................................. Page | 6
G.K.A. Beverage Corp v. Honickman,
55 F.3d 762 (2d Cir. 1995)............................................................................................ Page | 18
Gardner v. Alexander Rent-A-Car, Inc.,
28 A.D. 2d 667 (1st Dept 1967) .................................................................................... Page | 9
Garrison v. State of Louisiana,
379 U.S. 64 (1964) .......................................................................................................... Page | 7
Gertz v. Robert Welsh, Inc.,
418 U.S. 323 (1974) ........................................................................................................ Page | 7
Glazier v. Harris,
99 A.D.3d 403 (1st Dept 2012) ..................................................................................... Page | 9
Goshen v. Mutual Life Ins. Co. of New York,
98 N.Y.2d 314 (N.Y. 2002) .......................................................................................... Page | 11
Guccione v. Hustler Magazine, Inc.,
800 F.2d 298 (2d Cir. 1986).......................................................................................... Page | 14
Heins v. Board of Trustees of Incorporated Village of Greenport,
237 A.D. 2d 570 (2d Dept 1997) ................................................................................. Page | 14
Henneberry v. Sumitomo Corp. of Am.,
2005 WL 991772 (S.D.N.Y. Apr. 27, 2005)................................................................... Page | 8
Herbert v. Lando,
781 F.2d 298 (2d Cir. 1986), cert. denied, 476 U.S. 1182 (1986) ................................ Page | 15
I.S. Sahni, Inc. v. Scirocco Financial Group, Inc.,
2005 WL 2414762 (S.D.N.Y. Sept. 28, 2005) .............................................................. Page | 17
John R. Loftus, Inc. v. White,
150 A.D.2d 857, 540 N.Y.S.2d 610(3d Dept 1989) .................................................... Page | 20

iv

Kartiganer Associates, P.C. v. Town of New Windsor,


108 A.D.2d 898 (2d Dept. 1985) .................................................................................. Page | 18
Kforce Inc. v. Foote,
2011 WL 4444182 (N.Y. Sup. Sept. 21, 2011)............................................................... Page | 4
Knutt v. Metro Intern., S.A.,
91 A.D.3d 915 (2d Dept. 2012) .................................................... Page | 7, Page | 13, Page | 14
Kreutter v. McFadden Oil Corp.,
71 N.Y.2d 460, 527 N.Y.S.2d 195, 522 N.E.2d 40 (1988) ............................................. Page | 3
Laventure v. Galeno,
307 A.D. 2d 255 (2d Dept 2003) ................................................................................... Page | 6
Leder v. Spiegel,
31 A.D. 3d 266 (1st Dept 2006) .................................................................................... Page | 6
Lesesne v. Brimecome,
918 F.Supp.2d 221 (S.D.N.Y. 2013)............................................................................... Page | 6
Litman v. Massachusetts Mut. Life Ins. Co.,
739 F.2d 1549 (11th Cir. 1984) .................................................................................... Page | 13
M.J. & K. Co., Inc. v. Matthew Bender and Co., Inc.,
220 A.D.2d 488 (2d Dept 1995) .................................................................................. Page | 20
Marist Coll. v Brady,
84 A.D.3d 1322 (2d Dept 2011) .................................................................................... Page | 2
Mark Hampton, Inc. v. Bergreen,
173 A.D. 2d 220 (1st Dept 1991) ................................................................................ Page | 11
Murganti v. Weber,
248 A.D. 2d 208 (1st Dept 1998) .................................................................................. Page | 9
Nadel v. Play-By-Play Toys & Novelties, Inc.,
208 F.3d 368 (2d Cir. 2000).......................................................................................... Page | 17
New York Times Co. v. Sullivan,
376 U.S. 254 (1964) ....................................................................................... Page | 7, Page | 10
Newsday, Inc. v. Fantastic Mind, Inc.,
237 A.D.2d 497 (2d Dept 1997) .................................................................................. Page | 20
Piccoli A/S v. Calvin Klein Jeanswear Co.,
19 F. Supp. 2d 157 (S.D.N.Y. 1998)............................................................................. Page | 18

Porter v. Saar,
260 A.D.2d 165, 688 N.Y.S.2d 137 (1st Dept 1999) .................................................. Page | 21
Qosina Corp. v. C & N Packaging, Inc.,
96 A.D.3d 1032 (2012) ................................................................................................. Page | 17
Sino Clean Energy Inc. v. Little,
35 Misc. 3d 1226(A), 953 N.Y.S.2d 553 (Sup. Ct. 2012) .............................................. Page | 3
SNS Bank, N.V. v. Citibank, N.A.,
7 A.D.3d 352 (1st Dept 2004) ....................................................................................... Page | 4
Solow v. Stone,
994 F.Supp. 173 (S.D.N.Y. 1998)................................................................................. Page | 19
St. Amant v. Thompson,
390 U.S. 727 (1968) ........................................................................................................ Page | 7
Stepanov v. Dow Jones & Co.,
2014 WL 2208921 (1st Dept. May 29, 2014) ................................................................. Page | 8
Unity Sheet Metal Works v. Knappen,
279 A.D. 245 (1st Dept 1951), affd 304 N.Y. 639 (1952) ........................................... Page | 6
Weiner v. Doubleday & Co., Inc.,
74 N.Y.2d 586 (1989), cert. denied, 495 U.S. 930 (1990) ............................................. Page | 8
Wilmington Trust Co. v. Burger King Corp.,
2005 WL 3199301 (N.Y. Sup. 2005) ............................................................................ Page | 19
Wolf v. Nat'l Council of Young Israel,
264 A.D.2d 416 (1999) ................................................................................................. Page | 17
STATUTES
Civil Practice Law................................................................................................................. Page | 1
OTHER AUTHORITIES
CPLR 302(a)(2) and (3) ........................................................................................................ Page | 5
CPLR 302(a)(3) .................................................................................................................... Page | 5
CPLR 3211(a)(1) ................................................................................................................ Page | 11
CPLR 3211(a)(7) ................................................................................................................ Page | 10
CPLR 301........................................................................................................................... Page | 3
vi

CPLR 302........................................................................................................................... Page | 3


CPLR 302(a) ...................................................................................................................... Page | 5
CPLR 302(a)(1) .................................................................................................. Page | 3, Page | 4
CPLR 302(a)(2) .................................................................................................. Page | 3, Page | 4
CPLR 302(a)(3) .................................................................................................. Page | 3, Page | 4
CPLR 3016(a) .................................................................................................................... Page | 8
CPLR 3211(a)(1) ............................................................................................ Page | 14, Page | 16
CPLR 3211(a)(7) ................................................................................................ Page | 2, Page | 6
CPLR 3211(a)(8) ............................................................................................................... Page | 2
The New York Times ............................................................................................................. Page | 7
New York Times ................................................................................................... Page | 7, Page | 10
Restatement Second, Torts 583 (1977) ............................................................................ Page | 13

vii

Defendants, Simone Sheffield (Sheffield) and Canyon Entertainment (Canyon)


(collectively, the Sheffield Defendants), respectfully submit this Memorandum of Law in
Support of their Motion to Dismiss Damon Dashs (Plaintiff) Verified Complaint
(Complaint), pursuant to Civil Practice Law and Rules (CPLR) 3211(a)(1), 3211(a)(7)
and 3211(a)(8).
I.

PRELIMINARY STATEMENT

The Complaint is defective, frivolous, and inane.


Plaintiff failed to allege any facts to support this Courts jurisdiction because there are no
facts to support this Courts jurisdiction. Dismissal is warranted for this alone.
Plaintiffs defamation claim fails as a matter of law for five reasons: (1) Plaintiff, not the
Defendants, published the allegedly defamatory statement; (2) Plaintiff failed to allege what the
actual defamatory words were; (3) Plaintiff failed to plead that his admittedly public figure was
defamed with actual malice; (4) the allegedly defamatory statements were true; and (5) the
allegedly defamatory statements were already published on the Internets splashiest gossip sites
Defendants merely forwarded links to these gossip websites after Plaintiff requested such links:

Plaintiffs claim for tortious interference with business relations fails as a matter of law
for three reasons: (1) Plaintiff failed to allege the who - the identity of a third party with whom a
business relation was interfered; (2) Plaintiff failed to allege the how - the causal connection
between the alleged defamation and some unspecified injury to Plaintiff; and (3) Plaintiff failed
to allege the what - the unlawful or malicious means employed to realize the alleged
interference.
For all these reasons, Plaintiffs Complaint should be dismissed with prejudice, together
with an award of attorneys fees based on the Courts inherent authority.
II.

LEGAL ARGUMENT

The Sheffield Defendants are entitled to a complete dismissal of the causes of action for
tortious interference with business relations and defamation because: (A) this Court lacks
personal jurisdiction over the Sheffield Defendants pursuant to CPLR 3211(a)(8); (B) the
pleading fails to state a cause of action pursuant to CPLR 3211(a)(7); and (C) documentary
evidence vitiates Plaintiffs insufficiently pled claims.
A.

The Court Lacks Personal Jurisdiction over the Sheffield Defendants and
Plaintiff Has Not Pled Any Facts to Support a Finding of Jurisdiction over
Them.

As a preliminary matter, the Complaint is conspicuously silent as to the Courts authority


to exercise personal jurisdiction over the Sheffield Defendants, or the propriety of this venue in
connection with Plaintiffs claims against the Sheffield Defendants.1 Dismissal is warranted on
this basis alone.
The plaintiff bears the initial burden of establishing personal jurisdiction over the
defendant. See Marist Coll. v Brady, 84 A.D.3d 1322 (2d Dept 2011). This burden is satisfied
1

Unlike a traditional complaint, Plaintiffs Complaint lacks the standard, stand-alone jurisdictional and venue
provision.

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only by alleging specific facts that establish a prima facie showing of jurisdiction. Despite this
well-established standard, Plaintiff has failed to set forth any basis for this Courts exercise of
personal jurisdiction over the Sheffield Defendants. This omission is not an oversight, as
Plaintiff has not and cannot plead any facts that would support a finding of personal
jurisdiction over the Sheffield Defendants.
By way of example, Plaintiff has not alleged jurisdiction based on domicile. To the
contrary, Plaintiff readily admits the Sheffield Defendants are citizens of California. (See
Compl., at 6-8). Consequently, Plaintiff cannot establish that jurisdiction is proper pursuant
to CPLR 301. See Deer Consumer Prods., Inc. v. Little, 35 Misc.3d 374, 381 (N.Y. Sup. 2012)
(CPLR 301 codifies a courts power to exercise a territorial or presence jurisdiction over a
defendant based on his domicile on any cause of action regardless of where the claim arose)
(citing Vincent C. Alexander, Practice Commentaries, McKinneys Cons. Laws of NY, Book 7B,
CPLR 301 (2010)).
Nor does Plaintiff attempt to establish personal jurisdiction pursuant to CPLR 302, New
Yorks long-arm statute. Even under the most generous read, the Complaint fails to allege any
facts that would bring this action within the ambit of:

CPLR 302(a)(1), which requires that the plaintiff proffer facts sufficient to
establish that the defendant transacted business within the State of New York and
that plaintiffs action arises from that transaction of business. See Kreutter v.
McFadden Oil Corp., 71 N.Y.2d 460, 467, 527 N.Y.S.2d 195, 522 N.E.2d 40
(1988).

CPLR 302(a)(2), with necessitates a showing that the defendant committed a


tortious act within the State of New York, except as to a case of action for
defamation of character arising from the act, and that that lawsuit arises from the
tortious act. Sino Clean Energy Inc. v. Little, 35 Misc. 3d 1226(A), 953 N.Y.S.2d
553 (Sup. Ct. 2012).

CPLR 302(a)(3), under which the plaintiff must allege: (1) the commission of a
tortious act outside of New York, except as to a case of action for defamation of

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character arising from the act; (2) causing injury within the state; (3) defendants
reasonable expectation that its conduct would have consequences in New York; and
(4) that defendants derive substantial revenue from interstate commerce. Darrow
v. Deutschland, 119 A.D.3d 1142, 990 N.Y.S.2d 150, 151 (3d Dept 2014)
Under CPLR 302(a)(1), New York courts can exercise personal jurisdiction over any
non-domiciliary who transacts any business within the state, or contracts anywhere to supply
goods or services in the state, but only in connection with causes of action that arise from
such in-state activity. See Kforce Inc. v. Foote, 2011 WL 4444182, at *2 (N.Y. Sup. Sept. 21,
2011); Deer Consumer Prods., Inc. v. Little Group, 2012 N.Y. Slip Op. 52157(U), at *10 (N.Y.
Sup. 2012). The relationship between the claim and the in-state transaction must be direct. See
SNS Bank, N.V. v. Citibank, N.A., 7 A.D.3d 352, 353-54 (1st Dept 2004) (dismissing complaint
for lack of personal jurisdiction where there is no substantial nexus between the business
transacted [here] and the cause of action.). Here, no such direct relationship exists.
This is especially true in that New York courts construe the transactional requirement
more narrowly in defamation cases than they do in the context of other claims. Id. (New York
courts construe transacts any business within the state more narrowly in defamation cases than
they do in the context of other sorts of litigation.) (citing Best Van Lines, Inc. v. Walker, 490 F.
3d 239, 248 (2d Cir. 2007), Kim v. Dvorak, 230 A.D. 2d 286, 290 (3d Dept 1997), Legros v.
Irving, 38 A.D. 2d 53, 55-56 (1st Dept 1971)). Regardless, the Complaint does not meet the
less stringent standard, as it fails to: (a) allege that the Sheffield Defendants transacted any
business within New York state, much less that (b) there is a factual nexus between the
Sheffield Defendants New York activities and Plaintiffs claims for defamation and tortious
interference.
Further, both CPLR 302(a)(2) (non-domiciliary commits tortious act within the state)
and CPLR 302(a)(3) (non-domiciliary commits a tortious act without the state causing injury to

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person or property within the state), expressly disclaim that their reach does not extend to
cause[s] of action for defamation of character . See N.Y. CPLR 302(a)(2) and (3); Deer
Consumer Prods., Inc. v. Little Group, 2012 N.Y. Slip Op. 52157(U), 10 (N.Y. Sup. 2012).
Finally, while claims for tortious interference with business relations are not expressly
excluded by CPLR 302(a), personal jurisdiction over the Sheffield Defendants nonetheless
remains improper given that the sole, alleged wrongful act that forms the alleged underpinning of
the tortious interference claim is a supposed defamatory statement. Consequently, irrespective of
its label, the claim sounds in defamation and is, therefore, expressly excluded from CPLR
302(a)(3). See id. (citing Findlay v. Duthuit, 86 A.D. 2d 789, 790 (1st Dept 1982) (courts are
instructed to decline jurisdiction over claims that attempt to avoid the requirements of New
Yorks long-arm statute by merely restating a defamation claim under a different name).
Because Plaintiff failed to allege any other tortious act committed by the Sheffield Defendants
inside or outside the state of New York other than an alleged defamatory statement, personal
jurisdiction under the long-arm statute is not satisfied. Id.
Given Plaintiffs failure to establish personal jurisdiction over the Sheffield Defendants,
this Court should decline to exercise jurisdiction and dismiss Plaintiffs causes of action. Should
the Court continue its analysis, additional grounds demonstrate that the lack of personal
jurisdiction is just one of several material defects, which collectively warrant the dismissal of the
action with prejudice and without leave to amend.
B.

The Complaint Fails to State a Cause of Action.

Plaintiff not only failed to even attempt to plead a basis for jurisdiction, Plaintiff has also
failed to sufficiently plead causes of action for either defamation or (as discussed later) for
tortious interference. This is a second, independent basis for dismissal.

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In evaluating a motion to dismiss under CPLR 3211(a)(7), a court must accept wellpleaded factual allegations in a complaint as true. The court need not, however, accept as true
conclusions unsupported by the alleged facts, legal conclusions, bald assertions or unwarranted
inferences. To survive dismissal, a plaintiff must plead more than a sheer possibility that a
defendant has acted unlawfully. See Unity Sheet Metal Works v. Knappen, 279 A.D. 245, 246
(1st Dept 1951), affd 304 N.Y. 639 (1952) (dismissing an action for failure to state a claim
where the complaint failed to plead material facts as distinguished from general and conclusory
allegations of wrongdoing); Laventure v. Galeno, 307 A.D. 2d 255, 256 (2d Dept 2003)
(stating that the complaint must allege material facts giving rise to a cognizable claim).
Although well-pleaded facts are generally presumed to be true, Amaro v. Gani Realty Corp., 60
A.D. 3d 491, 492 (1st Dept 2009), factual allegations which fail to state a viable cause of
action, that consist of bare legal conclusions, or that are inherently incredible or unequivocally
contradicted by documentary evidence, are not entitled to such consideration. Leder v. Spiegel,
31 A.D. 3d 266, 267 (1st Dept 2006) (citations omitted).
Here, Plaintiff fails to meet its burden to show that he is entitled to any relief against the
Sheffield Defendants because Plaintiff failed to plead all of the elements of defamation and the
allegations pled are refuted by clear and unequivocal documentary evidence.
1.

Plaintiffs Defamation Claim is Insufficiently Pled.

Defamation is an injury to a persons reputation, either by written (libel) or oral


expression (slander). See Lesesne v. Brimecome, 918 F.Supp.2d 221, 224 (S.D.N.Y. 2013).
More specifically, a defamatory statement is a statement of fact that 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 people to deprive him of their friendly intercourse in society. Fordham v. Islip
Union Free School Dist, 662 F.Supp.2d 261, 274 (E.D.N.Y. 2009) (quoting Rinaldi v. Holt,
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Rinehart & Winston, Inc., 42 N.Y.2d 369, 379 (1977). In order to properly plead a cause of
action for defamation under New York law, a plaintiff must establish the following elements: (1)
a false statement; (2) published to a third party without privilege or authorization; (3) with fault
amounting to at least negligence; and (4) plaintiff suffered damages as a result of the publication;
special harm or defamation per se. See Knutt v. Metro Intern., S.A., 91 A.D.3d 915, 916 (2d
Dept. 2012).
Public figures, such as Plaintiff, must also establish with convincing clarity a fifth
element established by the United States Supreme Court that the defendant acted with actual
malice. New York Times Co. v. Sullivan, 376 U.S. 254, 279-80 (1964). In other words, Plaintiff
must allege that the Sheffield Defendants made the alleged defamatory statements with
knowledge that the statement was false or with reckless disregard as to whether or not it was
true. Gertz v. Robert Welsh, Inc., 418 U.S. 323, 345 (1974).2 Plaintiff has to establish with
convincing clarity that the Sheffield Defendants made the statement with a high degree of
awareness ofprobable falsity, Garrison v. State of Louisiana, 379 U.S. 64, 74 (1964), or in
fact, entertained serious doubts as to the truth of his publication. St. Amant v. Thompson, 390
U.S. 727, 731 (1968). Actual malice focuses on the defendants attitude towards the truth or
falsity of the material published, and has nothing to do with bad motive, ill will, or malice in
the ordinary sense of the word. St. Amant, 390 U.S. at 730-31 (Actual malice under the New
York Times standard should not be confused with the concept of malice as an evil intent or the
motive arising from spite or ill will.).

The purpose of The New York Times actual malice standard is too provide sufficient breathing room to ensure
uninhibited and robust dialogue on public issues, undeterred by the threat of liability except in the most egregious of
situations. As expressed by the United States Supreme Court, [the] punishment of errors runs the risk of inducing a
cautious and restrictive exercise of the constitutionally guaranteed freedoms of speech and press. Gertz, 418 U.S.
at 341.

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a. The Complaint Fails to Set Forth the Allegedly Defamatory Words.


In determining whether a statement is defamatory, the legal question for the court on a
motion to dismiss is whether the contested statements are reasonably susceptible of a defamatory
connotation. See Henneberry v. Sumitomo Corp. of Am., 2005 WL 991772, at *15 (S.D.N.Y.
Apr. 27, 2005) (citations omitted). In making this determination, the court must evaluate both
the content and context of the statement, giving the disputed language a fair reading in the
context of the publication as a whole. Stepanov v. Dow Jones & Co., 2014 WL 2208921, at *2
(1st Dept. May 29, 2014) (On a motion to dismiss a defamation claim, the court must decide
whether the statements, considered in the context of the entire publication, are reasonably
susceptible of a defamatory connotation, such that the issue is worthy of submission to a jury).
The court is to look at what was explicitly stated, as well as what insinuation and
implication can reasonably be drawn from the communication. In considering the statement, the
courts will not go to extremes, but will instead construed the language as the average person or
the common mind would naturally understand it. See Weiner v. Doubleday & Co., Inc., 74
N.Y.2d 586, 596 (1989), cert. denied, 495 U.S. 930 (1990) (In analyzing the [published] words
in order to make that threshold decision, the court must ... consider them in context, ... give the
language a natural reading and test[ ] [them] against the understanding of the average reader.)
(citing Aronson v. Wiersma, 65 N.Y.2d 592, 594 (1985)); see also, Bordoni v. New York Times
Co., Inc., 400 F. Supp. 1223, 1227 (S.D.N.Y. 1975) (the words are be viewed in context and
given their ordinary and usual meaning, as they would be read and understood by the public to
which they are addressed.).
In order to enable the court to make this determination, CPLR 3016(a) specifically
requires that the particular words complained of shall be set forth in the complaint (emphasis
added). This requirement is strictly enforced and the exact words must be set forth. Any
Page | 8

qualification in the pleading thereof by use of the words to the effect, substantially, or words
of similar import generally renders the complaint defective. Gardner v. Alexander Rent-A-Car,
Inc., 28 A.D. 2d 667, 667 (1st Dept 1967); Glazier v. Harris, 99 A.D.3d 403, 404 (1st Dept
2012) (dismissing a defamation claim where the complaint does not set forth the particular
defamatory words); Murganti v. Weber, 248 A.D. 2d 208, 208-09 (1st Dept 1998) (dismissing
defamation cause of action where the actual defamatory words were not pleaded with
particularity, but were only paraphrased in a manner such that the actual words were not evident
from the face of the complaint).
Plaintiff has alleged nothing more than a general and imprecise allegation: that Ms.
Sheffield accused Damon of going to jail (Compl, 73) (no quotations in original). From
there, the allegations become even less precise (and more deficient):

[Ms. Sheffield] made additional false, defamatory statements about Damon. (Id.
at 75.)

[Ms.] Sheffield left [Plaintiffs] attorney a disturbing voice mail (which he


saved), which was arguably libelous and defamatory with respect to [Plaintiffs]
personal and business reputation. (Id. at 74) (emphasis added);

[Ms. Sheffield] individually, and as President of Canyon Entertainment, has


published and continues to publish, numerous false and defamatory statements
about [Plaintiff], including the statements that [Plaintiff] has not paid his taxes
and that he is going to jail (id. at 131).

The precise words that Ms. Sheffield purportedly used are never identified a failing which is
particularly egregious given Plaintiffs claim of possessing both an email and a saved voicemail
message. (Id. at 73-74). To the extent that the email is the January 10, 2014 email discussed
in detail below, this failure is understandable: the email reveals the frivolity of this action.
As pled, the allegations fall woefully short of New Yorks pleading requirement. In order
to survive dismissal, Plaintiff needs to identify the exact statements purportedly made by Ms.

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Sheffield. Until the alleged defamatory statements are set forth verbatim, Plaintiffs defamation
claim fails as a matter of law. Accordingly, this Court should dismiss the cause of action for
failure to state a claim pursuant to CPLR 3211(a)(7).3
b. The Complaint Fails to Plead Actual Malice
Plaintiff is a public figure, a once prominent member of the entertainment industry, who
as evidenced the media coverage of both his tax woes and this litigation the press believes
stills merits news coverage. Plaintiff concedes hes a public-figure. The Complaint is littered
with references to Plaintiffs past success and industry connections:

[Plaintiff] is a successful entrepreneur whose businesses included household


names in the music industry (i.e., Roca-Fella Records), fashion industry (i.e.,
Rocawear) and art/film industries (i.e., Poppington Gallery and Dash Films),
among others. (See Compl., 10);

Roc-A-Fella Records is a record label founded by Plaintiff and Shawn Jay-Z


Carter, and Kareem Biggs Burke. (Id. at p. 4, n.3)

Alleging that Daniels valued Dashs connections within the industry. (Id. at
17)

Touting his connections to famous celebrities like Kanye West (id. at 26) and
music superstar, Mariah Carey (id. at 52).

Despite conceding his public figure status, Plaintiffs Complaint neglects to plead that the
alleged defamatory statement was made with actual malice as required by New York Times Co.
v. Sullivan. The Complaint alleges that Ms. Sheffield acted without any actual knowledge of
the truth of the accusations she was making with respect to the statement that Dash was going to
jail. (Compl., 73). A lack of actual knowledge of the truth does not equate to the relevant
legal standard: knowledge of the falsity of the statement or a reckless disregard for its truth.

If this Court grants the Sheffield Defendants Motion to Dismiss on these grounds, Plaintiff should not be afforded
the opportunity to re-plead his defamation claim in light of the documentary evidence discussed here, which
unequivocally contradicts Plaintiffs factual allegations.

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Further, when as the law requires the statement is properly viewed in context, it becomes
decisively clear that Ms. Sheffield did not make the alleged statement at all, much less with the
requisite high degree of probable falsity.
C.

Documentary Evidence Mandates Dismissal of the Defamation Claim.

Even if Plaintiff could overcome these pleading deficiencies, his defamation claim
nonetheless remains subject to dismissal pursuant to CPLR 3211(a)(1) in light of conclusive
documentary evidence conveniently omitted from the Complaint. See Goshen v. Mutual Life Ins.
Co. of New York, 98 N.Y.2d 314, 326 (N.Y. 2002). In order to survive dismissal, the factual
allegations must withstand a review of the accompanying exhibits, as well as documents that
either should have been attached as exhibits, or which are central to the plaintiffs claim. 805
Third Ave. Co. v. M.W. Realty Associates, 58 N.Y.2d 447 (1983) (affirming dismissal of
complaint where contract attached to complaint contradicts plaintiffs claims); see also, Mark
Hampton, Inc. v. Bergreen, 173 A.D. 2d 220, 221 (1st Dept 1991) (factual allegations which are
unequivocally contradicted by documentary evidence are not afforded the customary
presumption of truth or favorable inferences normally extended on a motion to dismiss).4
Here, the documentary evidence attached to the Affidavit of Simone Sheffield in
Support of Sheffield Defendants Motion to Dismiss (Sheffield Aff.) and the Affirmation of
James G. Sammataro in Support Of Sheffield Defendants Motion to Dismiss (Sammataro
Aff.) indisputably establishes that the Plaintiff cannot as a matter of law maintain a
defamation claim.

Documentary evidence may be considered if it is unambiguous and of undisputed authenticity. Fontanetta v. Doe,
73 A.D.3d 78, 86 (2d Dept 2010) (citing Siegel, Practice Commentaries, McKinney's Cons. Laws of N.Y., Book
7B, CPLR C3211:10, at 2122).

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1.

Documentary Evidence Vitiates the Allegations in Plaintiffs Complaint.

The sole, alleged defamatory statement articulated with any level of detail in the
Complaint is a referenced email from Ms. Sheffield to Damon with several other members of
the film and/or television community i.e., [Daniels], Dave Robinson of Elephant Eye Films,
etc., ccd on the email in which Sheffield without any actual knowledge of the truth of the
accusations she was making, accused [Dash] of going to jail in an attempt to further cause
economic harm to Damons personal and business reputation. (Compl., 73).5 Despite being
the very crux of Plaintiffs defamation claim, Plaintiff conspicuously fails to attach the email. An
actual review of the email reveals why. Ms. Sheffield did not make the alleged defamatory
statement. Instead, incredibly, the statement was made by Plaintiff. Specifically, in an email
dated January 10, 2014, Plaintiff writes in pertinent part:
I just got a call from I guess [Lees] manager Simone to tell me about the tv [sic] project
we were speaking about she then asked me if I was going to jail I found that to be
offensive because Ive never in my life read anything implying that I was going to jail
because of a tax debt when I did try to explain exactly what was going on with my tax
situation because based on her comment she had to be told that and could never had read
that and I wanted to make sure if she was so concerned she had the right story
and if there is anything in these gossip columns that says this [that Plaintiff faces
possible jail time], please show me so that I can deal with it legally .
(See Sheffield Aff., Ex. A) (emphasis added).
In response to Plaintiffs email, Ms. Sheffield responded: get over yourself, but
complied with Plaintiffs express request by forwarding six links, each of which indicated that
Plaintiff faced potential incarceration for his outstanding tax liability. (Id.).
5

Plaintiff also alleges that arguably libelous and defamatory statements were made by Sheffield in a voicemail
message for Damons attorney (see Compl., 74). However, as discussed herein, even if such statements were
made, they do not constitute actionable defamation, as a statement to a partys admitted agent does not qualify as
publication to third parties. Plaintiff further makes the general and conclusory allegation that upon information and
belief, [Sheffield] made additional false, defamatory statements about Damon to said third parties (id. at 75).
This general allegation fails as a matter of law, as it does not contain the requisite specificity necessary to properly
plead a cause of action for defamation.

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This email exchange annihilates Plaintiffs defamation claim in two different ways.
First, Plaintiffs email identifies Plaintiff not the Sheffield Defendants as the
publisher of the allegedly defamatory words! Plaintiff had a private (no third party) phone
conversation with Ms. Sheffield; thereafter, Plaintiff sent an email to Ms. Sheffield and third
parties of his choosing and in that subsequent public email published the alleged defamatory
concept and attributed it as something Ms. Sheffield that purportedly said to him in the prior,
private phone conversation. If Defendant thinks it defamatory to question whether he was facing
jail for tax evasion, he should not have restated the question. Consequently, Plaintiffs
defamation claim fails on the second legal element because it was not Defendants who
published to a third party without privilege or authorization; and it must fail on the related
third element because it was not Defendants who published with fault amounting to at least
negligence.6 See Knutt v. Metro Intern., S.A., 91 A.D.3d at 916.
Second, Ms. Sheffields public forwarding of the unfavorable media reports notably,
none of whom Plaintiff has sued was made in response to Plaintiffs direct demand to please
show [him] the unfavorable media reports. This is consent, an absolute defense to defamation.7
If Plaintiff thinks it is defamatory to forward links of public articles stating that he was facing jail
for tax evasion, then Plaintiff should not have demanded that Ms. Sheffield forward the links.
Thus, Plaintiffs defamation claim must fail on the second element because Ms. Sheffield
forwarded the links with privilege or authorization granted by Plaintiff himself; and it must fail

Plaintiffs defamation claim also fails in that Ms. Sheffield did not make a false statement. In fact, she did not
make any statement. Instead, she raised a question.
7

Consent is an absolute defense to defamation, as a plaintiff cannot lay the foundation of a lawsuit for his own
pecuniary gain. As held in Litman v. Massachusetts Mut. Life Ins. Co., 739 F.2d 1549, 1560 (11th Cir. 1984) ([i]t is
axiomatic that invited defamation, or the issuance of a defamatory statement wherein the injured party precipitated
the statements release is not actionable.). The Restatement Second on Torts states the principal as follows: the
consent of another to the publication of defamatory matter concerning him is a complete defense to his action for
defamation. See Restatement Second, Torts 583 (1977).

Page | 13

on the third element because, having expressly demanded that Ms. Sheffield show him the press
coverage, Plaintiff cannot now cry that Ms. Sheffield acted with fault amounting to at least
negligence. See Id.
It is preposterous for Plaintiff to omit the email exchange from the Complaint. The emails
at the heart of the lawsuit fatally undermine the lawsuit. The woefully insufficient defamation
claim is frivolous and must be dismissed pursuant to CPLR 3211(a)(1).
2.

The Documentary Evidence Establishes that the Alleged Defamatory


Statements are Substantially True and, Therefore, Non-Actionable.

Even if the language of the allegedly defamatory email did not, by its own terms, negate
extinguish Plaintiffs defamation claim, other documentary evidence does.
Under New York law, truth is an absolute defense to defamation. See Guccione v. Hustler
Magazine, Inc., 800 F.2d 298, 301 (2d Cir. 1986) ([it is] fundamental that truth is an absolute,
unqualified defense to a civil defamation action). In the context of defamation, truth is defined
as substantial truth, as the law overlooks minor inaccuracies and concentrates on the core
matter. The defense of substantial truth absolves a defendant even if he cannot justify each and
every word of the alleged defamatory statement. Biro v. Conde Nast, 883 F.Supp.2d 441, 458
(S.D.N.Y. 2012) (holding that, under New York law, it is only necessary that the gist or
substance of the challenged statements be true and a defendant need not establish complete
accuracy). It is sufficient if the substance of the charge is proved true irrespective of any
inaccuracy in the details.
In short, if an allegedly defamatory statement is substantially true, a claim of defamation
is legally insufficient and subject to dismissal. See also Heins v. Board of Trustees of
Incorporated Village of Greenport, 237 A.D. 2d 570, 570-71 (2d Dept 1997) (granting motion

Page | 14

to dismiss defamation cause of action pursuant to CPLR 3211(a)(1) where documentary


evidence established truth of alleged defamatory statements).
Here, the documentary evidence establishes that even if Ms. Sheffield made any
statements regarding Plaintiffs failure to pay his taxes (see Compl., 130) and this failure may
result in him going to jail (id. at 73), the gist of the statement is true. Public records
conclusively demonstrate that the State of New York has filed six tax liens against Plaintiff in his
individual capacity, and an additional lien against Damon Dash Enterprises. (See Sammataro
Aff., Ex. A). The first lien, dated April 6, 2007, is $2,093,618.26. (Id.). It also true as
evidenced by the incarceration of the other celebrities for failing to satisfy their obligations,
including Martha Stewart, Wesley Snipes and Heidi Fleiss that the failure to pay taxes can
result in incarceration. Consequently, even if they were made, Ms. Sheffield purported statement
is

immunized by the substantial truth defense.

Further, given the context of the alleged

statement e.g., an email exchange in which six news articles documented Plaintiffs tax
obligations to the State of New York the documentary evidence forecloses any possibility that
Ms. Sheffields statement was made with knowledge of the falsity of the statement.
3.

The Documentary Evidence Establishes that Dash Is A Libel-Proof Plaintiff


Whose Reputation Was Already Tarnished.

In certain circumstances, a plaintiffs reputation with respect to a specific subject may


be so badly tarnished that he cannot be further injured by allegedly false statements on the
subject. Cerasani v. Sony Corp., 991 F. Supp. 343, 352 (S.D.N.Y. 1998) (citing Guccione v.
Hustler Magazine, Inc., 800 F.2d 298, 303 (2d Cir. 1986)). Under the libel-proof plaintiff
doctrine, if there is little or no harm to a plaintiffs already low reputation, then the statements
are not actionable. Cerasani, 991 F. Supp. at 352. The underlying principle of this doctrine is
that even if the statements pertaining to the plaintiff were defamatory, the plaintiffs reputation

Page | 15

with respect to the topic in question was already so badly tarnished that he cannot, as a matter of
law, suffer any new damages. See Herbert v. Lando, 781 F.2d 298, 311 (2d Cir. 1986), cert.
denied, 476 U.S. 1182 (1986). The Second Circuit has provided that in such cases, even
nominal damages are not to be awarded. Rather, the claim should be dismissed so that the
costs of defending against the claim of libel, which can themselves impair vigorous freedom of
expression, will be avoided.
Here, at the time of Ms. Sheffields alleged defamatory statement, headlines of Plaintiffs
tax issues and potential criminal liability had already been splashed across the Internet by some
of the most widely-read sites, including: TMZ, Perez Hilton, BET and MediaTakeOut.com, with
eye-catching headlines:

BROKE and Facing JAIL TIME, Damon Dash Goes to Jay Z for a LOAN.

Dash owes more than $2 million in taxes to the state of New York and could
receive jail time if doesnt find a way to pay.

Damon Dash: Jay-Zs Ex-Biz Partner ROC-A-TAX LIEN.

(Sheffield Aff., Ex. B; Sammataro Aff., Ex. B.).


Thus, even if not substantially true and made with actual malice (neither of which is the
case), Ms. Sheffields purported statement that Plaintiff may be going to prison as a result of
owing millions in back taxes cannot be defamatory as a matter of law, in that at time they were
allegedly made, the topic has already been widely disseminated in the news and on the internet.
Whatever few listeners may have been privy to Ms. Sheffields alleged statements pales in
comparison to the millions of readers of TMZ, Perez Hilton, MediaTakeOut.com and the
countless other media outlets that covered the story.
The pre-existing negative publicity regarding Plaintiffs failure to pay taxes has so
tarnished his reputation on this topic, that he is barred, as a matter of law, from prevailing on a

Page | 16

defamation claim relating to the same subject matter. Accordingly, as with the substantial truth
defense, here too, dismissal is warranted pursuant to CPLR 3211(a)(1).
D.
1.

Plaintiffs Claim for Tortious Interference with a Business Relationship Must


Be Dismissed
The Complaint Fails to State a Cause of Action for Tortious Interference
with a Business Relationship.

Plaintiff has failed to state a claim for tortious interference with a business relationship.
This claim is subject to a heightened pleading requirement. Fine v. Dudley D. Doemberg & Co.,
203 A.D.2d 419 (2d Dept 1994). In order to prevail on a claim for tortious interference with
business relations,8 the Plaintiff most prove: (1) business relations with a third party; (2) the
defendants interference with those business relations; (3) that the defendant acted with the sole
purpose of harming the plaintiff or used dishonest, unfair or improper means; and (4) injury to
the business relationship. See I.S. Sahni, Inc. v. Scirocco Financial Group, Inc., 2005 WL
2414762, at *5 (S.D.N.Y. Sept. 28, 2005) (quoting Excellus Health Plan, Inv. v. Tran, 287
F.Supp.2d 167, 177 (W.D.N.Y. Aug. 29, 2003); Nadel v. Play-By-Play Toys & Novelties, Inc.,
208 F.3d 368, 382 (2d Cir. 2000). The plaintiff must further demonstrate that the defendant
interfered with his or her business relationships either with the sole purpose of harming the
plaintiff or by means that were unlawful or improper or that the interference was effected by
unlawful means or, under the theory of prima facie tort, by lawful means without justification.
See Qosina Corp. v. C & N Packaging, Inc., 96 A.D.3d 1032, 1034 (2012); Wolf v. Nat'l Council
of Young Israel, 264 A.D.2d 416, 417 (1999).
Even under the most favorable read, the Complaint falls well short of stating a cognizable
cause of action for tortious interference with business relations.
8

Tortious interference with business relations is also called tortious interference with business advantage, business
relations, economic relations, and prospective economic advantage. The elements of each are the same. Discover
Group, Inc. v. Lexmark Intern., Inc., 333 F.Supp.2d 78, 86 (E.D.N.Y. 2004)

Page | 17

2.

Plaintiff Fails to Allege Interference with a Third Party.

In order to properly plead a claim for tortious interference with business relations, the
plaintiff must allege that the defendant directed his activities towards a third party and convinced
the third party not to enter into or continue a business relationship with the plaintiff. G.K.A.
Beverage Corp v. Honickman, 55 F.3d 762, 768 (2d Cir. 1995). Conduct constituting tortious
interference with business relations is, by definition, conduct directed towards a third party with
which the plaintiff either has or seeks to have a relationship. See Empire One
Telecommunications, Inc. v. Verizon New York, Inc., 26 Misc. 3d 541, 558 (N.Y. Sup. 2009)
(citing Carvel Corp. v. Noonan, 3 N.Y.3d 182, 192 (2004)). It is insufficient to allege that
defendants actions interfered with plaintiff; rather, the actions must be directed at a third party.
Id. at 192; Piccoli A/S v. Calvin Klein Jeanswear Co., 19 F. Supp. 2d 157, 167-68 (S.D.N.Y.
1998) (rejecting plaintiffs claim for tortious interference where the alleged conduct by
defendants was not directed towards any third party with whom plaintiff had an existing or
prospective business relationship).
Here, the Complaint, and rightfully so, alleges that Ms. Sheffield is Lee [Daniels]
manager, and that the Sheffield Defendants have a long-term relationship with co-defendants,
Lee Daniels and Lee Daniels Entertainment, Ltd. (collectively, Daniels). (See Compl., 5764). Given Ms. Sheffields role as Daniels manager, neither she nor the Sheffield Defendants
are properly considered as third parties with respect to the Dash-Daniels relationship.
An agent cannot be held liable in tort for inducing his principal to breach a contract with
a third party when he is acting on behalf of his principal and within the scope of his authority.9
AIM Intern. Trading, L.L.C. v. Valcucine S.p.A., 2003 WL 21203503, at *10 (S.D.N.Y. May 22,
9

Plaintiff has not, and cannot, allege that the Sheffield Defendants ever acted other than in their role as Daniels
manager.

Page | 18

2003); Kartiganer Associates, P.C. v. Town of New Windsor, 108 A.D.2d 898, 899 (2d Dept.
1985); Solow v. Stone, 994 F.Supp. 173, 181 (S.D.N.Y. 1998) (These rules are consistent with
the principle that a defendant cannot tortiously interfere with a contract if he is not a third
part[y] unrelated to the contract); First Trust Nat. Ass'n v. Moses & Singer, 2000 WL 1093054,
at *7 (S.D.N.Y. Aug. 4, 2000) (It is well settled in New York that only a stranger to a contract,
such as a third party, can be liable for tortious interference with a contract.). Indeed, elsewhere
under the law of agency, principals and agents are treated as the same party with respect to
tortious interference claims. See Wilmington Trust Co. v. Burger King Corp., 2005 WL 3199301,
at *8 (N.Y. Sup. 2005) (citing the Restatement (Second) of Agency 248 (1957) for the
proposition that a principal can be liable if his or her agent tortiously interferes with the business
relations of a third party).
The gravamen of Plaintiffs claim for tortious interference is based on an alleged
interference by the Sheffield Defendants in Plaintiffs relationship with Daniels, not with a third
party:
Plaintiff has a longstanding business relationship with Defendants Lee and Lee Daniels
Entertainment. . . [the Sheffield Defendants] knew of the parties business relationship
and intentionally interfered with it. . .these actions caused irreparable injury to the
relationship between Damon and Lee.
(Compl., 125-127).
Yet, even if true, this does not constitute tortious interference as a matter of law.
Consequently, Plaintiffs claim for tortious interference should be dismissed.
3.

Plaintiff Does Not Allege That The Sheffield Defendants Acted Solely Out Of
Malice Or Used Improper Or Illegal Means That Amounted To A Crime Or
Independent Tort.

Plaintiffs Complaint is further deficient in that where, as is the case here, a plaintiff
asserts tortious interference with business relations in general and not with a specific contract,

Page | 19

the plaintiff has the burden of proving that: (a) the defendant used unlawful means to interfere
with any relationship the Plaintiff had with third parties, or (b) that the alleged acts of
interference, though lawful, were prompted solely by malice or ill will. See Newsday, Inc. v.
Fantastic Mind, Inc., 237 A.D.2d 497 (2d Dept 1997); M.J. & K. Co., Inc. v. Matthew Bender
and Co., Inc., 220 A.D.2d 488, 490 (2d Dept 1995) (tortious interference with business relations
applies to those situations where the third party would have entered into or extended a
contractual relationship with plaintiff but for the intentional and wrongful acts of the
defendant); Carvel Corp. v. Noonan, 3 N.Y.3d 182, 19091 (N.Y. 2004) (conduct that is not
criminal or tortious will generally be lawful and, thus, insufficiently culpable to create liability
for interference with prospective contracts or other nonbinding economic relations). The
Complaints failure to plead either unlawful means or alleged acts of interference fueled solely
by ill will is fatal to the claim.
The Complaint baldly alleges that: [i]n making these remarks and spreading these
unfounded rumors, Defendants Simone and Canyon Entertainment acted solely out of malice and
these actions caused irreparable injury to the relationship between Damon and Lee. (Compl.,
127). These statements amount to no more than bare conclusory allegations. John R. Loftus,
Inc. v. White, 150 A.D.2d 857, 860, 540 N.Y.S.2d 610(3d Dept 1989) (finding a cause of action
for tortious interference defective because conclusory allegations without factual support are
insufficient to state a cause of action). Notably, Plaintiff does not (and cannot) allege that the
Sheffield Defendants engaged in any crime or independent tort and Plaintiff has not alleged any
facts suggesting that the Sheffield Defendants violated the law or undertook actions with the sole
purpose of harming him. As a result, Plaintiff fails to adequately plead a cause of action for
tortious interference with business relations.

Page | 20

4.

Plaintiff Does Not Allege with Any Particularity How the Sheffield
Defendants Purported Interference Caused Injury to any of Plaintiffs
Relationships With Third Parties.

The measure of damages for interference with business relations is the loss suffered by
the plaintiff, including the opportunities for profits on business diverted from it. See Duane
Jones Co. v. Burke, 306 N.Y. 172, 117 N.E.2d 237 (1954). However, the losses cannot be too
speculative, or a claim for tortious interference with business relations will not lie. See Porter v.
Saar, 260 A.D.2d 165, 688 N.Y.S.2d 137 (1st Dept 1999).
Here, the losses Plaintiff may have suffered as a result of the alleged interference by the
Sheffield Defendants are beyond too speculative. Plaintiff merely makes the conclusory
statement that the Sheffield Defendants actions caused irreparable injury to the relationship
between [Dash] and [Daniels]. (Compl., 127). Putting aside for the moment the fact that this
statement of alleged injury does not adequately identify which business relationships with what
third parties were harmed to what extent, the more glaring deficiency is that the alleged injury
complained of is to the relationship between Plaintiff and co-defendant Daniels and not with
any third parties. Thus, Plaintiffs Complaint falls far short of satisfying the standard for
adequately pleading a cause of action for tortious interference with business relations and this
claim too should be dismissed.
III.

CONCLUSION

For the reasons set forth herein, this Court should grant the Sheffield Defendants Motion
to Dismiss and should issue an order dismissing the sixth and seventh causes of action from the
Complaint with prejudice, together with an award of attorneys fees based on the Courts
inherent authority.

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Dated:

Miami, Florida
November 11, 2014
STROOCK & STROOCK & LAVAN LLP
Counsel for Defendants Simone Sheffield and
Canyon Entertainment
By:

s/ James G. Sammataro
James G. Sammataro, Esq.
180 Maiden Lane
New York, NY 10038-4982
(212) 806-5400
and
Southeast Financial Center
200 South Biscayne Blvd., Suite 3100
Miami, Florida 33131
(305) 358-9900

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