RESORB NETWORKS INC v. YOUNOW COM (2018)

Plaintiffs, a corporation and its CEO, seek relief against defendants, corporate entities operating a live streaming video platform and their CEO, following defendants' termination of plaintiffs' participation as a partner/broadcaster for allegedly violating partner/broadcaster guidelines regarding terms of use. The stated basis for defendants' termination of plaintiffs' account was plaintiffs' alleged display of physical and verbal abuse to a woman during a broadcast on defendants' livestreaming video platform—and was delivered to the individual plaintiff by email. Plaintiffs also assert that, following the account deactivation, defendants disabled broadcasts using hashtags associated with plaintiffs' trademarks. The complaint asserts causes of action for defamation, commercial disparagement, trade libel and breach of contract. Defendants move to dismiss the complaint pursuant to CPLR 3211 (a)(1), 3211 (a)(7), and 3016 (a).

Plaintiffs' defamation, commercial disparagement and trade libel causes are all deficient in that they fail to identify the specific words that are alleged to be false and defamatory, when such words were communicated, that such words were communicated to any third party other than defendants' employees (who were privileged to receive such communications), and, if so, specifically to whom (see Patterson v. Wilhelmina Intl., Ltd., 2014 NY Misc. LEXIS 1970; Pasternack v. Lab. Corp. of Am., 2014 U.S. Dist. LEXIS 137671; Project Gamma Acquisition Corp. v. PPG Industries, Inc., 2009 NY Misc. LEXIS 5849). In addition, the commercial disparagement and trade libel causes of action are both deficient in that they fail to identify with any level of specificity anything that would qualify as special damages (Pasternack, supra; Project Gamma, supra ).

The parties' contract is affixed to the complaint. The plain language of that contract identifies it as one that was terminable at will. That being the case, to the extent plaintiffs seek relief merely because defendants exercised their contractual right to terminate plaintiffs, the breach of contract cause of action must also fail (see Shapiro v. Prudential Ins. Co., 81 AD2d 661, 662 (“Surely where no reason need be given under the law for exercising a termination clause, no obligation ought to be imposed upon a party to prove the validity of its reasons for ending the contractual relationship[;] [t]herefore, as a matter of law, the [breach of contract] cause of action must fall.”).

Accordingly, it is hereby

ORDERED that defendants' motion to dismiss the complaint in its entirety, pursuant to CPLR 3211 (a)(1), 3211 (a)(7), and 3016 (a), is granted, and, therefore, it is

ORDERED that the complaint be and is hereby dismissed in its entirety.

Reed, J.