MANCILLA FANTONE LLP v. LIU (2025)

Order, Supreme Court, New York County (Paul A. Goetz, J.), entered on or about January 8, 2025, which denied defendant's motion to dismiss the complaint, granted plaintiffs' motion for an order determining that defendant waived attorney-client privilege over matters discussed in the amended complaint, and denied defendant's cross-motion to strike the amended complaint and other filings alleged to contain privileged material, unanimously affirmed, with costs.

The motion court correctly determined that the complaint was properly amended as of right pursuant to CPLR 3025(a) (see CPLR 3211[f];  Roam Capital, Inc. v. Asia Alternatives Mgt. LLC, 194 A.D.3d 585, 585–586, 144 N.Y.S.3d 339 [1st Dept. 2021]).  Thus, the amended complaint was the operative one to which the pending motion to dismiss is properly applied (see Zaiger LLC v. Bucher Law PLLC, 238 A.D.3d 687, 687–88, 236 N.Y.S.3d 141 [1st Dept. 2025]).

The motion court also correctly determined that defendant waived attorney-client privilege with respect to the communications referenced in the amended complaint through disclosures in her moving affirmation and supporting documentation (see U.S. Bank N.A. v. Lightstone Holdings LLC, 196 A.D.3d 445, 447, 152 N.Y.S.3d 441 [1st Dept. 2021], lv denied 38 N.Y.3d 913, 2022 WL 4136892 [2022]).

Plaintiffs have demonstrated that the sole remaining substantive claim, for defamation per se, has a substantial basis in law sufficient to survive dismissal under New York's anti-SLAPP law (see CPLR 3211[g];  Black v. Ganieva, 236 A.D.3d 427, 428, 228 N.Y.S.3d 91 [1st Dept. 2025] [substantial basis standard];  see also Moonbeam Gateway Mar., LLC v. Tai Chan, 239 A.D.3d 965, 966–967, 238 N.Y.S.3d 440 [2d Dept. 2025];  Civil Rights Law 76–a[2]).

The alleged defamatory statements are not nonactionable statements of pure opinion (see generally Davis v. Boeheim, 24 N.Y.3d 262, 268–269, 998 N.Y.S.2d 131, 22 N.E.3d 999 [2014]).  Accusations that plaintiffs wrongfully kept defendant's retainer, authored fake positive online reviews, and refused to file any papers on defendant's behalf unless she doubled their retainer have clear, readily understood meanings and are capable of being proven true or false (see VIP Pet Grooming Studio, Inc. v. Sproule, 224 A.D.3d 78, 92, 203 N.Y.S.3d 681 [2d Dept. 2024]).  Moreover, unlike in many other cases involving online reviews, the defendants' statements (with one exception) were not made on a recognized third-party consumer review website but on separate websites with domain names modeled after plaintiffs' own names, leading to possible confusion about their authorship.  Defendant's reliance on the presence of disclaimers on these websites is misplaced, as it is undisputed that this language was not always present, although the parties disagree when it was added.

Plaintiffs submitted sufficient evidence that the subject statements were false, and that defendant made them with knowledge of their falsity or with reckless disregard thereof.  The amended complaint, which was verified by a person with personal knowledge of the facts and thus “may be utilized as an affidavit” (CPLR 105[u];  see Matter of Jaime v. City of New York, 41 N.Y.3d 531, 542, 213 N.Y.S.3d 730, 237 N.E.3d 796 [2024]), contains a detailed recitation of facts evidencing falsity and scienter, referencing concrete supporting documentation that may be produced in discovery.

Defendant's argument that the amended complaint should be dismissed for failure to allege the date and time of the alleged defamatory statements is not properly considered because it is raised for the first time on reply on appeal.

We have considered defendant's remaining arguments and find them unavailing.