Cite as: Glassman v. Feldman, 102988/12, NYLJ 1202574198848, at *1 (Sup, NY, Decided October 2, 2012)

Justice Cynthia Kern

Decided: October 2, 2012

Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion for:

Papers Numbered

Notice of Motion and Affidavits Annexed 1

Answering Affidavits and Cross Motion 2,3

Replying Affidavits

Exhibits 4

 

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Plaintiff seeks injunctive relief enjoining defendant from publishing defamatory statements about him and seeks removal of allegedly defamatory statements from the websites on which they are now posted. Defendant has submitted written opposition to the motion but has failed to appear for oral argument which has been scheduled by the court. In his written opposition, defendant also requested consolidation with another matter but did not bring any cross-motion formally seeking this relief. Based on defendant's default in appearance, this court grants plaintiff the relief he requests ordering defendant to remove the already-published statements regarding plaintiff or cause them to be removed. However, the court declines to

 

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enjoin defendant from publishing statements about plaintiff. Moreover, the request for consolidation is denied both because defendant has not made any cross motion requesting this relief and because defendant has failed to appear for oral argument.

 

The relevant facts are as follows. Plaintiff is a second-year law student at Brooklyn Law School. On October 22,2007, plaintiff retained defendant, who is an attorney, to represent him at his post-trial hearing following his conviction of non-forcible rape in the third degree of his wife. Defendant expended what appears to be considerable time and effort preparing for the post-trial hearing although plaintiff fired defendant before the actual hearing, at which time his conviction was overturned. Defendant also negotiated a severance package for plaintiff from his former employer, Barnard College. After firing defendant, plaintiff sued him for legal malpractice. That case is currently pending before Judge Gische. Two negative reviews of defendant appeared on a website on June 24, 2010 and July 31,2010, respectively. Plaintiff denies writing those reviews. On the same website, defendant responded, accusing plaintiff of writing the reviews and stating that he is emotionally disturbed and has harassed or victimized several young women. Defendant wrote, in part, "[Plaintiff] was found guilty after trial by a jury of his peers of RAPE [sic] in Manhattan. As his attorney, I got the verdict reversed... He has previously been found guilty of an unrelated incident when he poured toner or ink on a young girl's head..." Plaintiff alleges that these statements are defamatory. Plaintiff then brought this order to show cause seeking to enjoin defendant from publishing any defamatory material against plaintiff and ordering defendant to remove the above-cited response of defendant to the negative reviews.

Plaintiff is not entitled to a preliminary injunction enjoining defendant from publishing

 

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defamatory statements against plaintiff because there is no "evidence of a sustained campaign to interfere with plaintiffs business that would justify a prior restraint on speech." LoPresti v. Florio, 71 A.D.3d 574, 575 (PI Dept 2010)(citing Rosenberg Diamond Development Corp. v. Appel, 290 A.D.2d 239 (151 Dept 2002)). The courts have repeatedly held that "[p]rior restrains on speech are strongly disfavored" and have specifically held that they are not permissible "merely to enjoin the publication of libel." Rosenberg Diamond, 290 A.D.2d 239. Although plaintiff alleges that his future legal career may be damaged by defendant's statements, this is insufficient to merit a prior restraint on speech.

However, plaintiffs motion for an order directing removal of the allegedly defamatory statements is granted based on defendant's failure to appear for oral argument of this motion. Accordingly, defendant is directed to remove the allegedly defamatory statements from various websites or to contact the editors or managers of such websites and direct them to remove the allegedly defamatory statements. However, plaintiffs motion seeking an injunction prohibiting defendant from making further defamatory statements is denied. Defendant's request to consolidate this action with the one pending before Judge Gische is also denied. This constitutes the decision and order of the court.