NYC FERMATA HEALTH CARLENE MACMILLAN OWEN MUIR v. JOHN DOES 10 (2026)

The following e-filed papers read herein: NYSCEF Doc. Nos.

Notice of Motion/Order to Show Cause/

Petition/Cross Motion and

Affidavits (Affirmations) Annexed

Opposing Affidavits (Affirmations)

Reply Affidavits (Affirmations)

FACTUAL AND PROCEDURAL BACKGROUND

In April 2023, plaintiffs NYC Psychiatrist Services, P.C. d/b/a Fermata Health ("Fermata"), Carlene Macmillan, M.D. ("Macmillan"), and Owen Muir, M.D. ("Muir"), commenced this action against defendant Esther Haddad ("Haddad") and other as-yet-to-be-determined anonymous individuals ("John Does"), alleging causes of action for libel per se, defamation by implication, intentional interference with business relationships, and intentional infliction of emotional distress.

Plaintiffs allege that the defendants published a slew of defamatory statements about them on various websites and social media platforms  ¹ , sometimes under the shroud of anonymity, which plaintiffs allege impugned Macmillan and Muir's competency as psychiatrists. They also allege that defendants accused them of a litany of grievous sexual and financial crimes in connection with their management of Fermata and their past care of Haddad's daughter ("Mona"), who took her own life in September 2016 while under plaintiffs' treatment. On July 11, 2023, defendant Haddad moved to dismiss the plaintiffs' Original Summons and Complaint (Mot. Seq. 1). Plaintiffs opposed dismissal of the defamation and libel claims, but they failed to address defendant's arguments for dismissal on the claims for tortious interference with business relationships or intentional infliction of emotional distress. Due to plaintiffs' decision not to oppose dismissal of these latter two claims, they are deemed dismissed.

On January 26, 2024, due to additional statements defendant had made regarding plaintiffs following the commencement of this action, plaintiffs moved for an order permitting service of an amended and supplemental complaint ("Amended Complaint") (Mot. Seq. 3). On October 3, 2024, owing to yet additional public statements by defendants following plaintiffs' filing of Motion Sequence 3, plaintiffs moved for an order imposing a temporary restraining order and a preliminary injunction against defendants publishing additional statements similar to the statements which gave rise to the first summons and complaint.

Following oral argument on all three pending motions, the court ruled the following: (1) the court reserved decision on defendants' motion to dismiss; (2) the court granted plaintiffs' motion to file an amended and supplemental complaint; and (3) the court granted plaintiffs' application for an order restraining defendants from continuing to publish certain categories of statements related to the underlying claims in the instant action. Subsequently, plaintiffs filed their Amended Complaint on March 25, 2026.

This order resolves the remaining branches of defendant Haddad's motion to dismiss plaintiff's complaint. Here, Haddad moves for dismissal of the remaining claims pursuant to CPLR 3211(a)(1)(7) for failure to state a claim upon which relief can be granted and pursuant to CPLR 3211(g)(1) and NY Civil Rights Law § 76-a, arguing that plaintiffs' defamation-related causes of action are precluded by New York's anti-SLAPP statutes. The motion is opposed in its entirety. For the following reasons, defendant's motion to dismiss the complaint is denied.

DISCUSSION

Defamation, consisting of the twin trots of libel and slander, is the invasion of one's interest in a reputation and good name." Albert v. Loksein, 239 F. 3d 256. 265 (2d Cir. 2001) quoting Hogan v. Herald Co. 84 AD2d 470, 474 (4th Dept. 1982). See, Margolies v. Rudolph, 2022 U.S. Dist. LEXIS 103369 (E.D.NY 2022). A defamation requires a false statement of fact and is judged from the perspective of an average, reasonable reader. Talbert v. Tynes, 2026 NY App. Div. LEXIS 157 (1st Dept. 2026). See, Davis v Boeheim, 24 NY3d 262, 270 (2014); Sandals Resorts Intern. Ltd. v Google, Inc., 86 AD3d 32, 38 (1st Dept 2011]) Id. At 20. Grifols, S.A. v. Daniel Yu, 2025 U.S. Dist. LEXIS 101918 at at 49 n.20 (S.D.NY 2025). Because falsity is a necessary element of a defamation claim, "and only facts are capable of being proven false," it necessarily follows that a statement must consist of "falsifiable facts in order to be actionable." Coleman v. Grand, 523 F. Supp. 3d 244, 261 (E.D.NY 2021) citing Gross v. NY Times Co. 82 NY2d 146, 153 (1993); Moonbeam Gateway Mar., LLC v. Tai Chan, 239 AD3d 965, 967 (2d Dep't 2025). Only statements that allege facts may be the subject of defamation suits. 600 W. 115th St. Corp. v. Von Gutfeld, 80 NY2d 130, 139 (1992); Moonbeam Gateway, supra, at 967. It is axiomatic that a factually true statement is completely non-actionable, "regardless of the harm done by the statement." Love v. William Morrow & Co., 193 AD2d 586, 587 (2d Dep't 1993).

The elements of defamation are: "(a) a false statement that tends to expose a person to public contempt, hatred, ridicule, aversion, or disgrace, (b) published without privilege or authorization to a third party, (c) amounting to fault as judged by, at a minimum, a negligence standard, and (d) either causing special harm or constituting defamation per se." Moonbeam Gateway, supra, at 966-67 (citing Bowen v. Van Bramer, 205 AD3d 674-75 [(2d Dep't 2022); Greenberg v. Spitzer, 155 AD3d 27, 41 (2d Dep't 2017).

For causes of action alleging defamation per se, damages are presumed and therefore do not need to be alleged nor proven. VIP Pet Grooming Studio, Inc. v. Sproute, 224 AD3d 78, 80 (2d Dep't 2024); Laguerre v. Maurice, 192 AD3d 44, 50 (2d Dep't 2020); Gatz v. Otis Ford, Inc., 274 AD2d 449, 450 (2d Dep't 2000). A statement is defamatory per se when it falsely, "charges another with a serious crime or tends to injure another in his or her trade, business, or profession." Geraci v. Probst, 61 AD3d 717, 718 (2d Dep't 2009); see also, VIP Pet Grooming Studio, supra, at 80; Kasavana v. Vela, 172 AD3d 1042, 1044 (2d Dep't 2019).

A statement expressing an opinion may not be the basis for a defamation suit, "no matter how vituperative or unreasonable it may be." Steinhilber v. Alphonse, 68 NY2d 283, 289 (1989); Gross, supra at 153; Davis v. Boeheim, 24 NY3d 262, 269 (2014). Whether a particular statement constitutes an opinion or an objective fact is a question of law. Mann v Abel, 10 NY3d 271, 276 (2008); Stolatis v. Hernandez, 161 AD3d 1207, 1210 (2d Dep't 2018). Expressions of opinion, as opposed to assertions of fact, are deemed privileged and, no matter how offensive, cannot be the subject of an action for defamation. See Mann, supra, at 276; Crescendo Designs, Ltd. v. Reses, 151 AD3d 1015 (2d Dep't 2017). A pure opinion takes one of two forms: it is either a statement of opinion by a recitation of facts upon which it is based or an opinion not accompanied by such a factual recitation so long as " it does not imply that it is based upon undisclosed facts. Davis v Boeheim, supra, 24 NY3d at 269.

In analyzing whether a statement is an opinion or a fact, "it is necessary to consider the [statement] as a whole, including its tone and apparent purpose, as well as the overall context of the publication, to determine whether the reasonable [listener] would have believed that the challenged statements were conveying facts about the plaintiff." Udell v. NYP Holdings, Inc., 169 AD3d 954, 956 (2d Dep't 2019); see Stolatis, supra, at 1210 (defendant's statements, which referred to the plaintiff's actions in causing the demolition of the building as a "crime" and referred to plaintiff as a "vampire," constituted nonactionable opinion or rhetorical hyperbole. Given the context in which the statements were made, the content of the post as a whole, as well as the content of the other contemporaneous posts on the same Facebook pages, a reasonable reader would have believed that the defendant was communicating his opinion as to whether plaintiff and his company intended from the outset to preserve or replace the building).

In distinguishing between facts and opinion, the court must consider (1) whether the specific language has a precise meaning that is readily understood, (2) whether the statements are capable of being proven true or false, and (3) whether the context in which the statement appears signals to readers that the statement is likely to be opinion, not fact." Stiloski v. Wingate, 241 AD3d 958, 962 (2d Dep't 2025); Silverman v. Daily News, 129 AD3d 1054, 1055 (2d Dep't 2015). The courts have adopted a "holistic approach" to the third factor. "Rather than sifting through a communication for the purpose of isolating and identifying assertions of fact, the court should look to the over-all context in which the assertions were made and determine on that basis 'whether the reasonable reader would have believed that the challenged statements were conveying facts about the . . . plaintiff' " Davis, supra, 24 NY3d at 270 citing to Brian v. Richardson, 87 NY2d 46, 51 (1995). See , Kerns v. Ishida, 208 AD3d 1102 (1st Dept. 2022) ( challenged defamatory statements are expressions of opinion and are therefore not actionable as many of them were prefaced by language stating that they were opinions, such as "in my honest opinion" or "I don't think." Moreover, although the reviews do mix fact and opinion, the allegedly defamatory statements have a "[l]oose, figurative[,] or hyperbolic" tone "... defendants stated that plaintiff "acts like a psychotic nutcase" and that the office "is run amok."(citations omitted). When read in the context of the entire review, the statements are clearly grounded in opinion, and communicate to a reasonable reader that defendants were dissatisfied customers expressing opinions based on their negative experience with plaintiff's business. Id citing Torati v Hodak, 147 AD3d 502, 503 (1st Dept 2017).

While an expression of pure opinion is not actionable, "a statement of opinion [that] implies that is based upon facts which justify the opinion but are unaware to those reading or hearing it, ....is a 'mixed opinion' and is 'actionable." Stega v. NY Downtown Hosp., 31 NY3d 661, 675 (2018) citing to Steinhilber v. Alphonse, 68 NY2d 283, 289 (1986). See, Davis v. Boeheim, 24 NY3d 262, 269 (2014); VIP Pet Grooming Studio, supra, at 91-92. "The actionable element of a 'mixed opinion' is not the false opinion itself -- it is the implication that the speaker knows certain facts, unknown to his audience, which support his opinion and are detrimental to the person about whom he is speaking." Steinhilber, supra, at 290; Moonbeam Gateway, supra, at 967 (defendant's description of the plaintiff as a "shady company" amounted to no more than "nonactionable opinion or rhetorical hyperbole but statement that plaintiff "is engaged in money laundering" did not constitute pure nonactionable opinion") ). See, Stiloski v. Wingate, 241 AD3d 958, 962 (plaintiffs established that causes of action alleging defamation had substantial basis in law and defendants statements on Linked in port did not constitute non actionable pure opinion. Defendant did not call stilski a "neo-Nazi" which could arguably be pure opinion but rather in a "nuanced" statement" said that plaintiff was a "Tarrytown extremeist who supports neo-nazi casues" which could be readily proven true and falseSince defendant held himself out as a non profit leader and claimed he was a well know community activities - it signaled to the average reader that he was conveying facts about defendant. Alternatively, the statements were of mixed opinion and actionable as reasonable reader would have inferred that the poster had knowledge of facts, unknown to audience, supporting assertions made ).

Background on New York's "Anti-SLAPP" Law

In 1992, the New York State Legislature enacted a statute intended to deter Strategic Lawsuits Against Public Participation. Gottwald v. Sebert, 40 NY3d 240, 250 (2023). These lawsuits, often referred to by their acronym "SLAPP," are "characterized as having little legal merit but are filed nonetheless to burden opponents with legal defense costs and the threat of liability and to discourage those who might wish to speak out in the future" and are strategically utilized to "intimidate or silence those who speak out." 600 W. 115th St. Corp, supra, at 145 n.1. The statute is commonly referred to as New York's "Anti-SLAPP" law.

The initial iteration of the law, however, proved to be too narrow, only applying to "cases initiated by persons or business entities [ ] embroiled in controversies over a public application or permit, usually in a real estate development situation." Aristocrat Plastic Surgery, P.C. v. Silva, 206 AD3d 26, 28 (1st Dep't 2022) (citing 2019 Legis. Bill Hist. NY S.B. 1458). In response, in 2020 the legislature amended New York's Anti-SLAPP law ("2020 Amendment") to broaden its scope and "afford greater protections to citizens facing litigation from their public petition and participation" than the original 1992 law provided. Civil Rights Law § 76-a; Mable Assets v. Rachmanov, 192 AD3d 998, 1000 (2d Dep't 2021). The 2020 Amendment serves to combat and deter lawsuits that are brought for the purpose of "chilling speakers' public participation." Coleman, supra, at 261. "

The amendments broaden the definition of a SLAPP suit to include "(1) any communication in a place open to the public or a public forum in connection with an issue of public interest; or (2) any other lawful conduct in furtherance of the exercise of the constitutional right of free speech in connection with an issue of public interest, or in furtherance of the exercise of the constitutional right of petition' " Tcharnyi v Mendez, 221 AD3d 930, 931 ( 2d Dept 2023) quoting Civil Rights Law § 76-a [1] [a] [1], [2]). See Moonbeam Gateway, supra, 239 AD3d at 966. The statute provides that the term "public interest" "shall be construed broadly, and shall mean any subject other than a purely private matter" [*966] (Civil Rights Law § 76-a [1] [d]; see Gottwald v Sebert, 40 NY3d 240, 257 (2023); Tsamasiros v Jones, 232 AD3d 816, (2d Dept 2024). Nelson v. Ardrey, 231 AD3d 179, 184 (2d Dep't 2024); VIP Pet Grooming Studio, supra, at 83. Simply put," the 2020 amendment expanded anti SLAPP protections to voer all "public communications on any private matter". Reeves v. Assos. Newspapers, Ltd., 232 AD3d 10, 18 (1st Dept. 2024).

The 2020 Amendment reads that, "[i]n an action involving public petition and participation, damages may only be recovered if the plaintiff, in addition to all other necessary elements, shall have established by clear and convincing evidence that any communication which gives rise to the action was made with knowledge of its falsity or with reckless disregard of whether it was false where the truth or falsity of such communication is material to the cause of action at issue." Civil Right Law § 76-a (2). While the statute itself does not use the term "actual malice," the definition used in the statute (i.e., "knowledge of [a statement's] falsity or with reckless disregard of whether it was false") has been consistently used to define "actual malice" by both federal and state courts and in cases applying the anti-SLAPP law. New York Times Co. v. Sullivan, 376 U.S. 254, 280 (1964); Gottwald, supra, at 251; InkMango, Inc. v. Warren, 243 AD3d 476 (1st Dep't 2025) (acknowledging the language in Section 76-a as the definition of "actual malice").²

Actual Malice

Actual malice requires showing that the statements were "made with knowledge that [they were] false or with reckless disregard of whether [they were] false or not." Palin v. New York Times Co. 940 F.3d 804 , 810 (2d Cir. 2019). See also, New York Times v. Sullivan, 376 U.S. 254, 280, 11 L. Ed. 2d 686 (1964). New York's anti SLAPP statute defines actual malice in the same way. Civil Rights Law § 76-a (2). This means that Plaintiff cannot merely allege that the publisher failed to fully investigate or failed to uncover falsity. See Harte-Hanks Commc'ns, Inc. v. Connaughton, 491 U.S. 657, 688, L. Ed. 2d 562 (1989). The New York State Court of Appeals has adopted the Sullivan court's definition of the term. Huggins v. Moore, 94 NY2d 296, 301 (1999).

In analyzing whether a statement was made with actual malice, "there is a critical difference between not knowing whether something is true and being highly aware that it is probably false;" solely the latter establishes actual malice. Liberman v. Gelstein, 80 NY2d 429, 438 (1992). "[O]nly those false statements made with the high degree of awareness of their probable falsity" constitute statements made with actual malice. Garrison v. La., 379 U.S. 64, 74 (1964). "Where the question of truth or falsity is a close one, a court should err on the side of non-actionability" to promote free speech and avoid any potential chilling effects. Celle v. Filipino Reporter Enters., 209 F.3d 163, 188 (2d Cir., 2000) (quoting Liberty Lobby, Inc. v. Dow Jones & Co., 838 F.2d 1287, 1292 [D.C., 1988]).

"[A]ctual malice cannot be established merely because reliance on a source's information is negligent the mere failure to conduct further investigation is insufficient to establish actual malice." Suozzi v. Parente, 202 AD2d 94, 101-102 (1st Dep't 1994). While evidence of ill will may support a finding of actual malice, ill will alone is not sufficient to establish actual malice. Di Lorenzo v. New York News, Inc., 78 AD2d 669, 672 (2d Dep't 1980); see also Masson v. New Yorker Magazine, 501 U.S. 496, 510 (1991).

"The [actual malice] inquiry is [ ] a subjective one, "the critical question being the state of mind of the publisher of the allegedly [defamatory] statements at the time of publication." Kipper v. NYP Holdings Co., 12 NY3d 348, 354 (2009) (citing Bose Corp. v. Consumers Union, 466 U.S. 485, 511 n.30 [1984]). See, Palin v. NY Times, supra, 940 F. 3d at This subjective inquiry, however, is typically inferred from objective facts, as "it would be rare for a defendant to admit" that they made the statement[s] at issue with actual malice. Bose Corp. v. Consumers Union of United States, Inc., 692 F.2d 189, 196 (1st Cir., 1982), affd 466 U.S. 485. Further, "[a] plaintiff is entitled to prove the defendant's state of mind through circumstantial evidence." Harte-Hanks Communications v. Connaughton, 491 U.S. 657, 668 (1989). This evidence may include, among other things, "the defendant's own actions or statements, the dubious nature of his sources, [and] the inherent improbability of the story." Celle, supra, at 183.

Actions Involving Public Petition and Participation and Issues of Public Interest

In analyzing the breadth of New York's anti-SLAPP statute, courts have noted that "[m]atters of public concern include matters of political, social, or other concern to the community, even those that do not affect the general population." Aristocrat Plastic Surgery, P.C., supra, at 29 (quoting Kesner v. Buhl, 590 F. Supp. 3d 680 (S.D.N.Y, 2022). Further, "public interest" has been defined in the "most liberal and far-reaching terms" and includes "all types of factual, educational, and historical data, or even entertainment and amusements, concerning interesting phases of human activity in general." Carey v. Carey, 2022 NY Misc. LEXIS 675 (Sup. Ct, NY Co. 2022) citing De Gregorio v. CBS, Inc., 123 Misc 2d 491, 493 (Sup. Ct, NY Co.1984). Given the "extremely broad" interpretation of the term public interest, cases in which the subject matter at issue was not a matter of public interest are "extremely rare." Lindberg v. Dow Jones & Co., 2021 U.S. Dist. LEXIS 151397 (S.D.N.Y, 2021) (quoting Albert v. Loksen, 239 F.3d 256, 269 [2d Cir., 2001]).

In contrast, the small percentage of statements and subjects that are categorized as "purely private matter[s]" that do not receive the protection of New York's anti-SLAPP statute are those that fall "into the realm of mere gossip and prurient interest." Tsamasiros v. Jones, 232 AD3d 816 (2d Dep't 2024) (quoting Huggins v. Moore, 94 NY2d 296, 303 (1999); Aristocrat Plastic Surgery, P.C., supra, at 30. Additionally, statements are not of public interest when they are directed, "only to a limited, private audience." Nelson v. Ardrey, 231 AD3d 179 (2d Dep't 2024) (limited personal Facebook post concerning birthday of plaintiff's daughter and not on a forum devoted to a broader scope ) See, Tsamasiros , supra ( letter distributed to Club members concerned purely private matters - defendants response to plaintiffs allegations of wrongdoing against defendant, his parents and club's leadership).

Motions to Dismiss Under the Anti-SLAPP Statute: CPLR 3211 (g)

The 2020 amendment also "simplified a defendant's burden of showing under a CPLR 3211(7) motion that the action was a claim under SLAPP/ Reeves, supra 232 AD3d at 18-19.Once a defendant establishes that the action involves public petition and participation, the plaintiff is "obligated to demonstrate that the causes of action alleged have a 'substantial basis in law' " Mable Assets, LLC v Rachmanov, 192 AD3d 998, 1000 (2d Dept.2021) quoting CPLR 3211 [g]). See, Moonbeam Gateway, supra, 239 AD3d at 966. If a defendant (the publisher of the statement) cannot establish that the alleged defamatory statement involves an issue of public interest, then the anti-SLAPP statute does not apply, and the motion to dismiss proceeds under the ordinary CPLR 3211 (a) (7) standard. See Miller v. Appadurai, 214 AD3d 455, 456 (1st Dep't 2023). See also Ziger LLC v. Bucher Law PLLC, 238 AD3d 687 (1st Dept, 2025). If a defendant can show that a statement involves an issue of public interest, then the anti-SLAPP statute does apply, and the standard for a motion to dismiss is then governed by CPLR 3211 (g), which is "an accelerated summary dismissal procedure. Reeves v. Associated Newspapers, Ltd., 232 AD3d 10, 12 (1st Dep't 2024), lv to appeal dismissed, 44 NY3d 990 (2025). See also Kohler v. West End 84 Units LLC, 241 AD3d 1123, 1125 (1st Dep't 2025).

Once a defendant establishes that a statement regarding a public interest is at issue, a motion to dismiss "shall be granted unless the party responding to the motion (i.e. the person who brought the defamation suit - plaintiff -) demonstrates that the cause of action has a substantial basis in law or is supported by a substantial argument for an extension, modification or reversal of existing law." CPLR 3211 (g) (1). Importantly, and in contrast to an ordinary CPLR 3211 (a) (7) motion to dismiss, under CPLR 3211 (g)(2), "the court shall consider the pleadings, and supporting and opposing affidavits stating the facts upon which the action or defense is based.' " Omansky v. Tribeca Citizen LLC, 2022 NY Misc. LEXIS 5795 (Sup. Ct. Kings County 2022)

In both VIP Pet Grooming Studio, Inc. v. Sproule, 224 AD3d 78, 84-85 (2d Dept. 2024) and Moonbeam Gateway Mar., LLC v. Tai Chan, 239 AD3d 965 (2d Dep't 2025), the Second Department set forth the proper framework for the analysis of a motion to dismiss under CPLR 3211 (g) . While the initial burden of establishing that the action involves public interest or participation lies with the defendant (the declarant of the statement), after that burden is met, "the burden shift[s] to the plaintiff (the focus of the defamatory statement) to demonstrate that the [defamatory] causes of action had a substantial basis in law," i.e. that defendant's statement was made "with knowledge of its falsity or with reckless disregard of whether it was false," meaning actual malice. VIP Pets, supra, 224 AD3d at 83-84. Moonbeam, supra, 239 A.D. at 967 citing Reeves v. Assoc. Newspapers, LTD., 232 A.D 3d 10, 12, 18-19 (2d Dept.2024).

Therefore, the template for a motion to dismiss is under CPLR 3211(g) is flipped on its face. Rather than affording all deference to the facts as pled in the complaint and placing the burden on defendant to prove that dismissal is warranted under the traditional motion to dismiss pursuant to CPLR 3211(7), here, it is the plaintiff who has to meet a very high hurdle. In the anti-SLAPP context, after the defendant shows that his words involved public petition and participation, the actual burden of proof as to the action's meritoriousness shifts immediately to the plaintiff., VIP Pet , supra, , 224 AD3d at, 84-85 (2d Dept. 2024). Thus, a motion to dismiss a SLAPP suit alleging defamation was to be more readily granted than a motion to dismiss other claims, to protect defendants from actions involving public petition and participation. Id.

There has been some confusion as to whether the "clear and convincing standard" or the "substantial basis in law" standard is appropriate in assessing the adequacy of plaintiff's pleading on a pre-answer motion to dismiss pursuant to CPLR 3211g. Compare Zeitlin v Cohan, 220 AD3d 631 (1st Dept. 2023) citing Smartmatic USA Cor. V. Fox Corp., 213 AD3d 512 (1st Dept. 2023); Ludlow Food, LLC v. L.E.S. Dwellers, Inc. 176 AD3d 434 (2019) Smith v. Misale, 2022 NY Misc. LEXIS 81671 (Sup. Ct, Kings County, 2022); Dugan v. Berini, 2022 NY Misc. LEXIS 6716 n.3 (Sup. Ct, Kings County, 2022) .(all requiring substantial basis in law) with Sackler v. American Broadcasting Cos., Inc., 71 Misc 3d 693 (Sup. Ct, NY Co. 2021); Honig v. Buhl, 2025 NY Misc. LEXIS 3638 (Sup. Ct, NY Co. 2025); 309 10th Owner LLC v. Trautmann, 2025 NY Misc. LEXIS 6859 (Sup. Ct, Kings County, 2025) (all requiring "clear and convincing evidence").

This confusion has apparently arisen because CPLR 3211(g), entitled "standards for motions to dismiss..." provides that where the moving party has demonstrated that the action, claim, cross claim...is an action involving public participation or petition as defined in Civil Rights Law § 76(a), the motion shall dismiss shall be granted unless the party responding to the motion demonstrates that his cause of action "has a substantial basis in law." CPLR 3211(g) does not discuss what the standard of proof is to necessary to prove damages. Civil Rights Law § 76(a), entitled "actions involving public petition and participation: when actual malice to be proven" does not address what standard of proof must be shown by plaintiff to defeat a SLAPP motion to dismiss, but does set forth that in order to recover damages, a plaintiff must establish by "clear and convincing evidence" that any communication which gives rise to the action was made knowledge of its falsity..."

The Second Department has never explicitly clarified which burden plaintiff has to meet at the motion to dismiss stage in an Anti SLAPP action in establishing that he has a cause of action in defamation, perhaps rightly so, given the aforementioned statues. It has always found that plaintiff had to establish that his defamation cause of action had a substantial basis in law whereas in order to recover damages he had to establish by "clear and convincing evidence that any communication that defendant made which gave rise to the cause of action was made with knowledge of falsity or with reckless disregard of whether it was false." Moonbeam supra, 239 AD. 3d at 966. See, Civil Rights Law § 76-a2; Mable Assets, supra, 192 AD3d at 1001. Therefore, the Second Department has clearly delineated plaintiff's burdens of proof on whether the plaintiff is establishing the viability of his cause of action for defamation as opposed to whether he is entitled to damages. This makes sense, as a plaintiff cannot establish damages at a motion to dismiss stage.

The First and Fourth Departments, on the other hand, have specifically rejected that a plaintiff, in opposing a motion to dismiss under SLAPP, had to meet a higher pleading standard of "proving by clear and convincing evidence" that the statement was made with actual malice.Rather, in opposing a motion to dismiss under CPLR 3211(g), a plaintiff need only establish a "substantial basis in law" for his claim of actual malice, similar to his allegations satisfying the elements of a regular defamation claim, and not "clear and convincing evidence" of actual malice. Zeitlin v. Cohan, 220 AD3d 631, 632 (1st Dep't 2023); Vitagliano v. Weiner, 237 AD3d 1548, 1549 (4th Dep't2025). As both of these cases arose at the motion to dismiss stage, neither court discussed what burden of proof plaintiff had to meet to obtain damages. However, the First Department has explicitly stated that :clear and convinving evidence " is the burden of proof at trial." Reeves, v. Found for the Child Victims of the Family Cts, 246 AD3d 542 (1st Dept. 2026).

This court finds that the Second Department is implicitly in accord with the First and Fourth Departments' holdings that a plaintiff who opposes a motion to dismiss under CPLR 3211(g) need only establish a "substantial basis in law" for his claim of actual malice, similar to his allegations satisfying the elements of a regular defamation claim, and not "clear and convincing evidence" of actual malice. Zeitlin v. Cohan, 220 AD3d 631, 632 (1st Dep't 2023); Vitagliano v. Weiner, 237 AD3d 1548, 1549 (4th Dep't 2025). This court agrees that the "clear and convincing evidence" standard "is the burden of proof at trial," which is why that standard is included in Civil Rights Law § 76 a for proving damages, and that "on a motion to dismiss in an action involving public petition and participation, a plaintiff need only demonstrate that the claim 'has a substantial basis in law.' " See Reeves v. Found. for the Child Victims of the Family Courts, 246 AD3d 542, 543 (1st Dept 2026).

Substantial Basis in Law

The First Department has held that, under CPLR 3211 (g), a "substantial basis in law" is, "such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact." Reeves v. Associated Newspapers, Ltd., supra, at 22. In performing this analysis, the First Department was guided by CPLR 3211(h), which contains the same requirement of a "substantial basis in law" on a motion to dismiss. The First Department there held that "[a] careful reading of CPLR 3211 reveals that the phrase 'substantial basis in law' appears both in CPLR 3211 (g) and in CPLR 3211 (h)." Id. It further concluded that "[c]onstruction of the term 'substantial basis' under CPLR 3211 (h) thus informs the meaning of the same term under CPLR 3211 (g)." Id. The First Department in Reeves also noted that it would be illogical to find "that the Legislature would employ the same phrase twice in the same statute but intend for it to have different meanings." Id. The Second Department has utilized the same definition of the term "substantial basis in law" under CPLR 3211 (h), but it has not yet explicitly applied that definition to CPLR 3211 (g). Schmitt v. Spector, 129 AD3d 1052, 1053 (2d Dep't 2015); see also Golby v. N & P Engrs. & Land Surveyor, PLLC, 185 AD3d 792, 793-794 (2d Dep't 2020).

The "substantial basis in law" standard under CPLR 3211 (g) is more demanding than the standard applicable to an ordinary CPLR 3211 (a) (7) motion to dismiss and has been equated to the "substantial evidence" standard under CPLR 3211 (h), which in turn has been equated to the standard of a typical summary judgment motion, and this court is thus required to, "look beyond the face of the pleadings" to determine whether the claim is supported by a substantial basis in law. Reeves v. Associated Newspapers, Ltd., supra, at 23-24; see also Black v. Ganieva, 236 AD3d 427, 428 (1st Dep't 2025). A motion to dismiss under CPLR 3211 (g) is "analogous to an accelerated summary judgment motion" and therefore requires this court to determine whether there are triable issues of material fact. Reeves v. Associated Newspapers, Ltd., supra, at 24; Glen Harbor Holdings at 968, LLC v. Wiener, 2025 NYLJ LEXIS 396 (Sup. Ct, Suffolk County, 2025). See, Moonbeam, supra where the court found that plaintiff established that his claim alleging defamation per se had a "substantial basis in law" since defendant's comments that plaintiff "is engaged in money laundering" did not constitute pure non actionable opinion and that plaintiff was incorporated in Nevada signaled a fact unknown to the listener, and since the complaint alleged that defendant had acted with actual malice.

ANALYSIS

At the outset, the court notes that the volume of defendant's statements giving rise to the claims in both the Original Complaint and the Amended Complaint are too numerous to list and analyze fully in this decision. Furthermore, many statements contain a mixture of fact and opinion, and the mission of the court is not to "As such, the court will discuss a representative sampling of the many potentially defamatory statements made by defendant, and it will then analyze those statements in turn under the appropriate SLAPP standard. Given that

The Court Applies New York's Anti-SLAPP Law to Instant Action

It should be noted that numerous courts have found social media platforms like LinkedIn, Facebook, and Twitter to constitute a public forum under New York's anti-SLAPP statute. Stiloski v. Wingate, 241 AD3d 958, 961 (2d Dep't 2025); Nelson v. Ardrey, 231 AD3d 179, 185 (2d Dep't 2024); Aristocrat Plastic Surgery, P.C. v. Silva, 206 AD3d 26, 31 (1st Dep't 2022) (citing Center for Med. Progress v. Planned Parenthood Fedn. of Am., 551 F. Supp. 3d 320, 332 [S.D. NY 2021]). Similarly, courts have found statements posted to one's personal or organizational website with the intent to publicize or amplify one's statements or accusations as widely possible to constitute public petition and participation withing the scope of the New York anti-SLAPP statute. Reeves v Found. for the Child Victims of the Family Courts, 246 AD3d 542 (1st Dep't 2026) ( plaintiff father alleges that during the custody dispute his ex wife engaged defendant organization" to post five 'ethics complaints" - each of which contained defamatory comments about the father - on their website. The father sued the organization for their posts about him on the website and the Second Department concluded that this was a matter of public interest in a public forum). Context is critical for social media statements, where hyperbole and rhetorical exaggeration are common and are less likely to be interpreted literally"Talbert v. Tynes, supra

Here, defendant's statements on her Blog, the Exacta Pattern Making Corporate Twitter Account, the Haddad Twitter Account, the Facebook Account, the Instagram Account, as well as defendants' alleged statements on her anonymous Redacted Bluesky Account, when taken together, allow defendant to meet her burden of establishing that her statements constituted public participation made in a public forum. The court also holds that defendant has met her burden of establishing that her statements concern a matter of public interest given the "extremely broad" application of the term in the context of New York's anti-SLAPP law. The statements are of clear interest to members of the community who may consider engaging plaintiffs in their professional medical services, and who may be concerned about allegations of "sexual impropriety" in the medical field. See Aristocrat Plastic Surgery, P.C. v. Silva, supra, at 32; see also Coleman v. Grand, 523 F. Supp. 3d 244, 259 (E.D.NY 2021), affd, 158 F.4th 132 (2d Cir 2025). The reviews do not discuss a "purely private matter," and defendant's intention in publishing these statements was clearly to spread the information about the alleged travesties of plaintiffs as far as she could. Because the reviews were made in a public forum and concern a matter of public interest, New York's anti-SLAPP law and its corresponding motion to dismiss procedure under CPLR 3211(g) outlined above apply.

As defendant has demonstrated that New York's anti-SLAPP law applies in this case, the burden then shifts to plaintiffs to demonstrate that their claim for defamation per se "has a substantial basis in law or is supported by a substantial argument for an extension, modification, or reversal of existing law." CPLR 3211(g). This Court need not assess every single statement contained in the complaint alleging defamation since a defamation cause of action will survive a motion to dismiss under CPLR 3211(g) if the complaint sufficiently alleges factual detail to support the conclusion that defamation has occurred. Stringer v. Jean Kim, 2024 NY Misc. LEXIS 70761( Sup. Ct., NY Co. 2024) (see Smartmatic, supra, 213 AD3d at 512). Therefore if there is a substantial basis in law for any of the statements in the claim for defamation the claim cannot be dismissed.See also, Grifols, SA v. Yu, 2026 U.S. Dist. LEXIS 64691 (S.D.NY 2026) citing to its prior decision at 2025 U.S. Dist. LEXIS 101918 ( S.D.NY 2025) (In its Amended Opinion and Order of July 2, 2025, the Court denied Defendants' anti-SLAPP motion, rejecting Defendants' argument that the anti-SLAPP statute should be applied on a statement by statement).

Statements

The statements posted by Haddad on her various accounts are too voluminous to cite in this decision but, as will be set forth below, they all contain either purely factual statements or mixed opinions. A sampling is recited herein:

a) Plaintiffs Muir and MacMillan committed sexual assault and/or misconduct

On April 13, 2022, Haddad posted on the Facebook Account:

"Mona Daniella is never again because of a rapist who was not stopped in the past (we posted an email from someone claiming Owen Muir raped a younger student in Amherst) he terrorized Mona Daniella throughout the year with Carlene MacMillan enabling him Owen Muir allegedly raped Mona - there are 911 calls. And other evidence that will be presented in court..."

On May 4, 2022, Haddad posted on the Facebook Account:

"Dr. Owen Muir, not content on terrorizing Mona Daniella until she died, not content on allegedly raping her prior to her death "

On May 18, 2022, Defendant Haddad posted on the Facebook Account:

1. "@REAL ABUSE SURVIVOR: You know nothing of the terror Dr Owen Muir and his allegedly depraved wife Dr Carlene MacMillan(as per their employees) have caused my late daughter, other allegedrape victims, and young adult female patients. And yet you defend im using the #metoo movement Dr Owen Muir doesn't hesitate to make public his bipolar condition and alleged depraved hyper sexuality. There are alleged rape victims and former female patients who believe that allegedly Dr Owen Muir's mind might allegedlyuse his condition as an excuse for the alleged rapes and manipulations. .... The whistle blower who alleged Dr Owen Muir threatened NYU with a lawsuitdue to his "disability" because he was unwilling to do the emergency ...SHAME ON YOU FOR DEFENDING AN ALLEGED RAPIST, WITHOUT HEARING HIS ALLEGED VICTIMS. .

On May 19, 2022, Defendant Haddad posted on her Facebook Account:

1. " Dr Owen Muir has demonstrated clearly that he might not have any remorse at all about terrorizing Mona in addition to allegedly raping her #justice #mona #drcarlenemacmillan #drcarlenemac #drowenmuir #owen_muir_md #brooklynminds #bklynminds

On October 7, 2022, Defendant Haddad posted on the Blog:

"WHY WOULD CURATED MENTAL HEALTH ASSOCIATE THEMSELVES... with Dr. Carlene MacMillan, a self confessed Borderline, unstable psychiatrist who enabled her husband Dr. Owen Muir aka Dr Scott Muir to allegedly rape our daughter, who enabled her husband to hurt and harm our daughter (it is all in SMS exchanges)?" (Mixed opinion and fact

On December 3, 2022, Haddad posted on both the Facebook Account and the Instagram Account:

"[Dr. Muir] raped our daughter shortly before she hanged herself (911 call) "

On January 23, 2023, Haddad posted on the Facebook Account:

"More bombshell allegations against #scottmuirmd aka #owenmuirmd aka #owenscottmuirmd - To sleep with a patient is a big NO NO. But the sleep with a patient and tell them about other patients it's considered HIPAA LAWS VIOLATION. #scottmuirmd 's wife #carlenemacmillan #carlenemac allegedly knew her husband was allegedly sleeping with this patient - and allegedly with other patients too. They allegedly recruited patients in BDSM networks. Actually they both allegedly met in a BDSM Network called FETLIFE and apparently might have a profile there under an alias. (10+ thousand members). If indeed true that they allegedly recruited patients there it would be akin to hitting the lottery. This patient almost took their own life but was saved by their partner. They are still traumatized from #owenmuirallegedrapist 's treatment and will testify in court for us. #mona #childloss #beravedmother #grief #harmfultreatment #instagram #bdsm #fetlifestyle #mentalhealth #noboundaries"

On May 10, 2023, Haddad published the following statements on the social media platform "BlueSky" from the "Redacted Bluesky account":

"Did you know Owen Muir raped an underage girl and lied about it? He also killed puppies."

(Replying to Dr. Muir) "I would like to point out that you raped numerous women."

"Owen is a disgusting predator who drove a girl to suicide after he raped her."

"your former employees accused you of theft and double billing. Maybe we should call the IRS to sort this out. What do you think fraud?"

"Owen Muir picking on more women again. Did you know this doctor almost got disbarred and should be in prison for raping numerous women?"

On August 2, 2023, in response to a post made by another Twitter user, asking why plaintiffs' had not been charged with a crime, Haddad published the following reply, implying plaintiffs had been arrested but released without bail:

"Because in New York, no criminal goes to jail. They are released no bail."

On September 28, 2023, Haddad published the following post on the Haddad Twitter Account and included a screenshot of an email allegedly drafted by Mona shortly before she died.

"Mona Daniella's last email. Time 7:06PM. She was threatened by the husband of her therapist (he terrorized her frequently). We know she took her life shortly after. The Medical Examiner estimated it was around that time. Please read her email. She was so frightened."

b). Plaintiffs committed Malpractice, violations of HIPPA and otherwise unethical conduct towards plaintiffs:

iii. On May 4, 2022, Defendant Haddad posted on the Facebook Account:

1. "We trusted the wicked, unprofessional, unethical Drs. Carlene MacMillan and Owen Muir of Brooklyn Minds. We are not the onlyparents. We have been contacted by many parents Dr. Owen Muir,not content on terrorizing Mona Daniella until she died is now committing HIPAA LAWS VIOLATIONS by posting in public Mona Daniella's essays. (Mixture of fact and opinion )

viii. On May 12, 2022, Defendant Haddad posted on the Facebook Account:

1. "Their alleged employees wrote Dr Carlene MacMillan has 3 boyfriends - which begs the question : maybe - supposedly she might have been too busy with the boyfriends to treat our daughter? Mixed opinion

xvii. On December 16, 2022, Defendant Haddad posted on the Facebook and Instagram Accounts:

"The loss of a child is a life sentence. The grief is compounded when the perpetrators lie to cover up their incompetence, unprofessional and unethical behavior. When they lie about having been with "the family". In fact they used us as a cash cow, but refused to have a meeting. They would charge our credit card before Mona was in the street. They lie shamelessly. Mixed

d. Plaintiff Muir engaged in academic dishonesty and fraudulently obtained his degrees:

i. On April 15, 2022, Defendant Haddad posted on the Facebook Account:. "These pseudo doctors don't deserve their titles, especially Owen Muir who graduated by not doing all the credits and by threatening NYU Hospital according to the whistleblower. Shame on them. we get endless emails describing how perverts both allegedly are. Disgusting. Spread it around to save your loved ones from getting hurt, getting harmed by them. Because of them Mona Daniella isnever again. Liars, manipulators."

On page 18 of the Amended complaint, plaintiffs allege that :

d. Plaintiff Muir engaged in academic dishonesty and fraudulently obtained his

degrees:

i. On April 15, 2022, Defendant Haddad posted on the Facebook Account:

1. "These pseudo doctors don't deserve their titles, especially Owen Muir who graduated by not doing all the credits and by threatening NYU Hospital according to the whistleblower. Shame on them. we get endless emails describing how perverts both allegedly are. Disgusting. Spread it around to save your loved ones from getting hurt, getting harmed by them. Because of them Mona Daniella isnever again. Liars, manipulators."

The amended Complaint then alleges that since the Initial Complaint, Haddad has authored and published hundreds of false statements about the plaintiffs and the lawsuit including

e. Dr Muir sexually assulted multiple people, including minors, and killed puppies:

On May 10, 2023, Defendant Haddad published the following statements on the social media platform "BlueSky" from an account entitled "Redacted Bluesky account":

1. "Did you know Owen Muir raped an underage girl and lied about it? He also killed puppies."...

3. "Owen is a disgusting predator who drove a girl to suicide after he raped her."

***

7. "Owen is a rapist.he also kills dogs"

8. "The man who raped my daughter is on your site. He is using yoursite to find his next victim. Shame on you for allowing him to dothis to women and for not being a real leader. Women will die because you don't care. It's disgusting."

***

10. "this is the monster Muir is. If he could join Epstein in the Lolita Express he would."

11. "your former employees accused you of theft and double billing.Maybe we should call the IRS to sort this out. What do you think fraud?"

12. "the entire internet knows what a grifter your wife is you fat slob.

Plaintiffs Have Established A Substantial Basis In Law For Defamation Per Se Claims

Plaintiffs have shown a substantial basis in law for their claim against Haddad for defamation per se. The court finds that none of the aforementioned statements included in the Amended Complaint are pure opinion as they contain at least some, or imply that they are based on, statements of fact, and as such are mixed opinions. Other statements contain pure facts.

As set forth previously, even apparent statements of fact may assume the character of opinion when made in public debate where the audience may anticipate the use of rhetoric or hyperbole. Stolatis v. Hernandez, 161 AD3d 1207, 1209 ( 2d dept. 2018). See, Steinhilber v Alphonse, 68 NY2d 283, 294 (1986). The question is not whether there is an isolated assertion of fact; rather, it is necessary to consider the writing as a whole, including its tone and apparent purpose, as well as the overall context of the publication, to determine whether the reasonable reader would have believed that the challenged statements were conveying facts about the plaintiff . Stolatis, supra, 161 A.D. 3 at 1209. See, Mann v Abel, 10 NY3d at 276;Stiloski v. Wingate, 241 AD3d 958, 962 (2d Dep't 2025)³ .; Reeves v Associated Newspapers, Ltd., 232 AD3d 10, 12 (1st Dept 2024). Whelan v. Cuomo, 220 AD3d 979 ( 2d Dept. 2023.)

In resolving the question of fact or opinion, the court is not supposed to sift through every communication for the purpose of isolating and identifying assertions of fact, but must consider the writing as a whole , including its "tone and purpose, as well as the overall context of the publication" Stolatis, supra at 783. See, Phipps v. Kuonen, 242 AD3d 781, 783 ( 2d Dept. 2025); Crescendo Designs, Ltd. V. Reses, 151 AD3d 1015 ( 2d Dept 2017). See also Stiloski v. Wingate, 241 AD3d 958 ( 2d Dept. 2025) ( st

In all of the statements cited above, Haddad states or implies that: plaintiffs raped Haddad's daughter; that Dr. Muir raped other women besides Haddad's daughter; that Dr. MacMillan aided and abetted him; that both doctors slept with their patients; that both doctors encouraged Mona to commit suicide; that they stole money from their business and double-billed their clients; that both doctors committed Malpractice, violated HIPPA and otherwise engaged in unethical conduct towards plaintiffs; that both doctors were, in fact, arrested for these crimes and released without bail; that Mona drafted an email she never sent the night of her suicide that directly implicated both doctors in her death; and that Dr. Muir almost had his medical license revoked due to his crimes.

All of these statements use words to describe specific acts that have concrete meanings, and all of these statements are capable of being proven true or false. While many of Haddad's statements contained in the Original and Amended Complaints also contain pure opinion, almost all of them also contain these kinds of concrete factual assertions, or are premised on the idea that they are based on hard facts which are unknown to the reader but known to Haddad. See Davis v. Boeheim, 24 NY3d 262, 269 (2014).of the statement signaled facts unknown to the listener were being conveyed about the plaintiff

The alleged defamatory statements include "[a] grooming visit . . . ultimately ended with us having to put our 4-month old puppy to sleep two days later as a result of their negligence or incompetence[,]" and the puppy "had water in his lungs that the vet said could only have come from a dramatic accident at the groomer." Those statements can be proven true or false and, given the tone and overall context in which the statements were made, signaled to the average reader that facts were being conveyed about the plaintiff (seeLevy v Nissani, 179 AD3d 656, 659, 115 N.Y.S.3d 418 [2d Dept 2020]). Even if the statements had not conveyed assertions of fact, they would nonetheless be actionable as mixed opinion, since a reasonable reader would have inferred that the poster had knowledge of facts, unknown to the audience, supporting the assertions made (seeid. at 659). VIP pets

Moving on to the elements of defamation and defamation per se, the court finds that plaintiffs clearly demonstrate a substantial basis in law and fact for their claim against Haddad. Again, the elements of defamation are: "(a) a false statement that tends to expose a person to public contempt, hatred, ridicule, aversion, or disgrace, (b) published without privilege or authorization to a third party, (c) amounting to fault as judged by, at a minimum, a negligence standard, and (d) either causing special harm or constituting defamation per se." Moonbeam Gateway, supra, at 966-67. See; VIP Pet Grooming Studio, Inc. v. Sproule, 224 AD3d 78, 90 ( 2d Dept. 2024); Bowen v. Van Bramer, 205 AD3d 674-75 (2d Dept. 2022). A statement is defamatory per se when it falsely, "charges another with a serious crime or tends to injure another in his or her trade, business, or profession." Geraci v. Probst, 61 AD3d 717, 718 (2d Dep't 2009)See , VIP Pet Grooming, supra , 224 A.D. 3d at 91.

Here, plaintiffs allege that the statements are completely false, and there is no dispute by either party that the gravamen of the allegations would expose plaintiffs to contempt, hatred, ridicule, aversion, or disgrace. Furthermore, there is no dispute that Haddad published these statements to third parties; nor does Haddad assert any privilege which would allow her to assert them and be free from liability. Finally, the statements clearly charge plaintiffs with serious crimes, and Haddad explicitly states that she hopes her statements injure plaintiffs in their profession.

The only genuine dispute between the parties on the instant motion to dismiss is whether plaintiffs can establish that Haddad acted with actual malice in publishing the aforementioned statements. Plaintiffs argue that, if the court decides to apply New York's anti-SLAPP statute, which it does, then the court should only require plaintiffs to demonstrate that they had a "substantial basis" in law or fact to show defendant acted with "actual malice." Defendant conversely argues that this court should require plaintiffs to show she acted with "actual malice" by the comparatively higher "clear and convincing evidence" standard. As the court has ruled, the "clear and convincing evidence" standard is inappropriate on a motion to dismiss, even in the modified anti-SLAPP dismissal analysis and that it follows the implicit Second Department rulings, and the explicit First and Fourth Departments in requiring plaintiffs to satisfy the lower "substantial basis" burden for establishing defendant's actual malice.

The "substantial basis in law" standard under CPLR 3211 (g) is more demanding than the standard applicable to an ordinary CPLR 3211 (a) (7) motion to dismiss and has been equated to the "substantial evidence" standard under CPLR 3211 (h), which in turn has been equated to the standard of a typical summary judgment motion, and this court is thus required to, "look beyond the face of the pleadings" to determine whether the claim is supported by a substantial basis in law. Reeves v. Associated Newspapers, Ltd., supra, at 23-24; see also Black v. Ganieva, 236 AD3d 427, 428 (1st Dep't 2025). "The [actual malice] inquiry is [¼] a subjective one, focusing upon the state of mind of the publisher of the allegedly [defamatory] statements at the time of publication." Kipper v. NYP Holdings Co., 12 NY3d 348, 354 (2009) (citing Bose Corp. v. Consumers Union, 466 U.S. 485, 511 n.30 [1984]). This subjective inquiry, however, is typically inferred from objective facts, as "it would be rare for a defendant to admit" that they made the statement[s] at issue with actual malice. Bose Corp. v. Consumers Union of United States, Inc., 692 F.2d 189, 196 (1st Cir., 1982), affd 466 U.S 485. "A plaintiff is entitled to prove the defendant's state of mind through circumstantial evidence." Harte-Hanks Communications v. Connaughton, 491 U.S. 657, 668 (1989). This evidence may include, among other things, "the defendant's own actions or statements, the dubious nature of his sources, [and] the inherent improbability of the story." Celle, supra, at 183.STATE Moreover, plaintiff did not show that defendant's statements were false or made with actual malice (Civil Rights Law § 76-a[2]; see Zeitlin v Cohan, 220 AD3d 631, 632, 197 N.Y.S.3d 211 [1st Dept 2023]; InkMango, Inc. v Warren

Here, the court finds that plaintiffs have shown that they have a substantial basis in law and fact for concluding that Haddad acted with actual malice in publishing her claims. Plaintiffs state plainly that these factual assertions, about their alleged rape of Haddad's daughter, their encouraging her to commit suicide, and their various other purported malfeasances, are all completely false. To bolster their claim that these allegations are false, and that Haddad published the statements despite knowing, or being recklessly ignorant to the likelihood of their falsity, plaintiffs point to Haddad's failed medical malpractice suit against the plaintiffs, as well as the investigation she launched against plaintiffs through the state's medical licensing body, which found her allegations without merit. According to the Original and Amended Complaints, "all of these statements reported by [ ] Haddad in her complaint to the Office of Professional Medical Conduct (OPMC) were extensively investigated by the examination of the Mona's medical record, the Plaintiff's personal notes and treatment plans, and electronic communications between the Plaintiffs and Mona," and that OPMC wrote that they had "concluded our investigation and closed the case without further action anticipated."

Furthermore, plaintiffs allege that the supposed draft email that Mona had written on the day of her suicide was fabricated by Haddad after the fact to bolster her story, which they allege is why it was published only after plaintiffs commenced this action in April 2023, and nearly four years after Mona took her life. They also allege that the screenshot of the email included formatting irregularities and that it was drafted from an email address that Mona had never used with plaintiffs in all their years of treating her. Plaintiffs also point out that Haddad, in republishing criminal allegations she alleges she received from plaintiffs' "anonymous" former employees and acquaintances, admitted that she never seriously vetted any of the statements she republished, and never sought to verify the identities of the "anonymous sources." Finally, plaintiffs correctly point out that Haddad conspicuously chose not to include her own sworn affidavit in support of her motion to dismiss, instead relying on an attorney affirmation.

CONCLUSION

Plaintiffs have established a substantial basis in law both for their underlying defamation per se claim and also for their allegation that Haddad acted with actual malice in publishing her statements. As a result, defendant's motion to dismiss (Mot. Seq. 1) is denied, and the parties are directed to proceed to discovery.

Date May 8, 2026

Hon. Katherine A. Levine

FOOTNOTES

1.   These websites and social media platforms include: (1) Haddad's personal blog about her daughter Mona Daniella ("Blog"), (2) Haddad's business' corporate Twitter account ("Exacta Pattern Making Corporate Twitter Account"), (3) Haddad's personal Twitter account ("Haddad Twitter Account"), (4) Haddad's allegedly anonymous BlueSky account ("Redacted Bluesky Account"), (5) Haddad's Facebook account ("Facebook Account"), and (6) Haddad's Instagram account ("Instagram Account"). Plaintiffs allege Haddad made additional statements from her alleged account on Mastodon, yet another social media website; however, they do not include these alleged statements in either their Original or their Amended Complaint.

2.   Further, costs and attorneys' fees shall be awarded to a defendant in a SLAPP suit if the motion to dismiss is granted "upon a demonstration . . . that the action involving public petition and participation was commenced or continued without a substantial basis in fact and law and could not be supported by a substantial argument for the extension, modification or reversal of existing law" (Civil Rights Law § 70-a [1] [a]). This serves as "a deterrence against those who flagrantly spew out worthless and baseless lawsuits and hold them accountable for the actual out-of-pocket financial pain and suffering inflicted on" defendants who are forced to defend those lawsuits. Swiezy v. Investigative Post, Inc., 2025 NY Slip Op 51507(U), *8. 87 Misc 3d 1209(A),(Sup Ct, Erie County 2025). Both compensatory and punitive damages may be available to a defendant if they can show that the initial action against them was initiated "for the sole purpose of harassing, intimidating, punishing or otherwise maliciously inhibiting the free exercise of speech, petition or association rights." Civil Right Law § 70-a (1) (b), (c).

3.   See pp supra

Katherine A. Levine, J.