Racketeering Defendant Lawyer Debra Guzov Esq Memorandum of Law in Support of Racketeering Defendant Adam Rose for Order to SHOW CAUSE to OBTAIN IDENTITIES OF ANONYMOUS BLOGGERSre:

8/12/2019 Racketeering Defendant Lawyer Debra Guzov Esq Memorandum of Law in Support of Racketeering Defendant Ad

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SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF NEW YORK-----------------------------------------------------------------XADAM R. ROSE,

Index No.Petitioner,

-against-

YAHOO! INC. and its wholly-owned subsidiary,

TUMBLR, INC., AUTOMATTIC, INC., andTWITTER, INC.,

Respondents.

-----------------------------------------------------------------X

MEMORANDUM OF LAW IN SUPPORT OF MOTION

FOR PRE-ACTION DISCLOSURE

GUZOV, LLC

Debra J. Guzov, Esq.

Stephanie A. Prince, Esq.

900 Third Ave., 5th FloorNew York, New York 10022

Tel: 212-371-8008

Attorneys for Petitioner Adam R. Rose

ILED: NEW YORK COUNTY CLERK 03/18/2014 INDEX NO. 152439/

YSCEF DOC. NO. 10 RECEIVED NYSCEF: 03/18/


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Petitioner Adam R. Rose, by and through his undersigned counsel, respectfully

submits this Memorandum of Law in Support of the Order to Show Cause Compelling

Disclosure of Identity pursuant to CPLR 3102(c), compelling Yahoo! Inc. and/or its

wholly-owned subsidiary Tumblr.com (collectively referred to as Tumblr), Automattic,

Inc., (Automattic) and Twitter, Inc. (Twitter) to disclose identifying information

associated with the person or persons (hereinafter Bloggers) who posted several

weblogs, which contained actionable, defamatory statements about Mr. Rose on websites

under the operation and control of Tumblr, Automattic, and Twitter.

In light of the fact that (1) Mr. Rose has demonstrably meritorious claims for

defamation against the anonymous blogger[s] and (2) the identifying information is

material and necessary to the framing of his complaint, Petitioner respectfully requests

that this Court issue the requested order.

No previous application for an order to show cause has been made in this or any

other court. Affirmation of Debra Guzov, (Guzov Aff.) 6.

STATEMENT OF FACTS

In or about January of 2013, Mr. Rose heard from an industry colleague that a

blog that had historically contained long, somewhat incomprehensible posts accusing

dozens of people and entities connected to the sale of the Stuyvesant Town-Peter Cooper

Village (Stuy Town Property) with all sorts of wrongdoing, now contained some

vicious, patently false and defamatory statements about him, personally. SeeAffidavit of

Adam R. Rose in Support of Order to Show Cause Compelling Disclosure of Identity

(Rose Aff."') 3. Mr. Rose has discovered four (4) entries within the last six (6)

months, dated on or about March 11, 2014, March 2, 2014, February 3, 2014 and January


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7, 2014 on a weblog entitled Tishman Speyer Stuyvesant Town (NYC) Fraud located at

the website:http://tishmanspeyerfraud.tumblr.com (the Tumblr Blog). Rose Aff. 4.

Based on the context and subject matter of the postings, as well as fact that his full name

and the name of his company, Rose Associates, are published on the Tumblr Blog, he can

confirm that the contents are about him. Id.

Mr. Rose was alarmed to see that the Tumblr Blog entries and the related

commentary were used to falsely describe him as a corrupt white collar criminal, to

accuse him of participating in illegal, criminal activity, including an illegal tax fraud

scheme, to falsely accuse him of being under criminal investigation by the federal

authorities, and, perhaps the worst, of having a connection to child pornography. Rose

Aff. 5. The individual entries on the Tumblr Blog speak for themselves. They are so

clearly aimed at casting him as a criminal racketeer (even claiming Mr. Rose was under

indictment) accusing him of tax fraud and of concealing child pornography and are

unwarranted, hurtful, embarrassing, potentially damaging to his reputation in the real

estate industry and, most significantly, they are flatly untrue. Rose Aff. 7. Mr. Rose

has never been investigated, arrested, arraigned, indicted or charged with any criminal

activity. Id.

On or about August 1, 2013, Mr. Rose discovered another website,

http://tishmanspeyerfraud.wordpress.com,(the Wordpress Blog) with one (1) entry

dated July 3, 2013, which is the corresponding date that the blog entry was published in

permanent form on the Internet. Rose Aff 8. Based on the fact that his full name and

the name of his business are both used on this blog, Mr. Rose knows the contents are

about him. Id. The Wordpress Blog entry and the other posted commentary were used to

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http://tishmanspeyerfraud.tumblr.com/http://tishmanspeyerfraud.tumblr.com/http://tishmanspeyerfraud.tumblr.com/http://tishmanspeyerfraud.wordpress.com/http://tishmanspeyerfraud.wordpress.com/http://tishmanspeyerfraud.wordpress.com/http://tishmanspeyerfraud.tumblr.com/


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describe him as a Criminal Mischief Defendant[], and to accuse him of illegal, criminal

activity, including felony criminal mischief, and felony destruction of someones

property, real estate fraud and tax fraud and corruption. Rose Aff. 9. The statements

and suggestions made on the Wordpress Blog entry are malicious and untrue.1Id.

In addition, at the web address https://twitter.com/StuyTownFraud/, Mr. Rose

discovered a Twitter account entitled TishmanSpeyerFraud, (the Twitter Account)

using the name @StuyTownFraud where Mr. Rose saw three (3) entries, dated

February 3, 2014, July 4, 2013 and September 2, 2013, which are the corresponding dates

that the entries were published in a permanent form on the internet. Rose Aff. 11.

Based on the subject matter and fact that his full name is published on this Twitter

Account, Mr. Rose can confirm that the contents are about him. Id. The headline

featured prominently in one posting is particularly galling and reveals the true malice of

the author:

BREAKING NEWS: What do Racketeering Defendant Adam Rose,

Child Pornography and Disney all have in common?

Rose Aff. 11.

Like the two blogs, the Twitter Account posts and related comments repeat and

rehash the same patently false claims of Mr. Roses illegal, criminal activity, including

having a connection to child pornography, being a violent criminal, a racketeer, of hate

crimes, and alluding to his having served prison sentences. Rose Aff. 12. The

statements and suggestions made on the Twitter Account posts are malicious and untrue. Id.

1The entry on the Wordpress Blog is obviously written by the same person who wrote the Tumblr Blog and

is also clearly aimed at casting Mr. Rose as a criminal, accusing him of various felonies, fraud and

corruption and is unwarranted, hurtful, embarrassing, potentially damaging to his reputation in the real

estate industry and, significantly, flatly untrue. Rose Aff. 10.

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Every single one of the statements discussed above is an outright lie. The real

estate industry is very much dependent on community standing, business and personal

reputations. Rose Aff. 14. The Tumblr Blog, Wordpress Blog, and Twitter Account

are malicious, untrue and extremely damaging to Mr. Roses professional reputation.

Rose Aff. 6. For thirty (30) years, Mr. Rose has been involved in all aspects of the real

estate industry, including development, design, leasing, sales and management of high-

rise apartment buildings. Id. Statements falsely accusing him of such abhorrent criminal

activity affect his reputation and desirability as a property developer and/or manager. Id.

This defamatory content goes far beyond the sphere of protected free speech.

These are malicious, actionable lies whose falsity can easily be proven. However, in

order to proceed with a defamation claim against the author of these posts, it is necessary

that Mr. Rose obtain this identifying information.

Respondents herein require a court order before they will turn over identifying

information of anonymous bloggers/tweeters. Guzov Aff. 3-6. Therefore, Mr. Rose

respectfully requests that an order be issued compelling Tumblr, Automattic, and Twitter

to identify the Blogger[s] who created the defamatory weblogs and tweets described

herein.

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ARGUMENT

In the Guzov Affirmation and the accompanying Rose Affidavit, Petitioner has set

forth facts sufficient for this Court to compel Tumblr, Automattic, and Twitter to disclose

the identity(ies) of the anonymous Blogger(s) who has been publishing the

aforementioned defamatory statements. It is respectfully submitted and will be

demonstrated below that this application should be granted in all respects and result in

orders requiring defendants to produce forthwith the Blogger's name(s), address(es), e-

mail address(es), phone number(s), IP address(es) and IP account history and any other

information that the defendants may possess that would assist in ascertaining the

Bloggers identity(ies).

I. STANDARD OF REVIEWNew York's CPLR 3102(c) allows a potential plaintiff to seek discovery of

certain information prior to commencement of an action as follows: "Before an action is

commenced, disclosure to aid in bringing an action, to preserve information or to aid in

arbitration may be obtained but only by court order." CPLR 3102(c) [McKinney 2007];

see also Cohen v. Google, 25 Misc. 3d 945, 952, 887 N.Y.S.2d 424 (2009). A request for

pre-action disclosure is most properly sought by the commencement of a special

proceeding (seeCPLR 3102(c), Commentary C3102:6 (2007); see alsoDaly v. 26-28

Market St., Inc., 21 A.D.3d 853, 801 N.Y.S.2d 596 (lst Dep't 2005). New York courts

routinely grant pre-action disclosure under CPLR 3102(c) for the purpose of

ascertaining the identities of defendants as necessary to bring an action (see, e.g.,

Alexander v. Spanierman Gallery, LLC, 33 A.D.3d 411, 822 N.Y.S.2d 506 (1st Dept

2006); Toal v. Staten Island University Hospital,300 A.D.2d 592, 752 N.Y.S.2d 372 (2d

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Dep't 2002); Perez v. New York City Health and Hosps. Corp., 84 A.D.2d 789, 44

N.Y.S.2d 23 (2d Dept 1981)). In order to be entitled to the relief described in CPLR

3102(c), however, the movant must first show that it has a meritorious cause of action

and that the information being sought is material and necessary to the actionable wrong."

Liberty Imports, Inc. v. Borguet, et. al., 146 A.D.2d 535, 536, 536 N.Y.S.2d 784 (1st

Dep't 1989).

With respect to using a CPLR 3102(c) petition to unmask persons who

anonymously defame others via the Internet, New York Courts have held that it is

appropriate for the respondent to "provide [the] petitioner with information as to the

identity of the [persons], specifically that person's or persons' name(s), address(es), email

address(es), IP address(es), telephone number(s), and all other information that would

assist in ascertaining the identity of that person or persons." Cohen, 25 Misc. 3d at 952.

II. PETITIONER IS ABLE TO ESTABLISH A LIKELIHOOD OFSUCCESS ON THE MERITS BASED ON THE ANONYMOUS

BLOGGERS DEFAMATORY STATEMENTS WHICH

CONSTITUTE LIBEL PER SE

A CPLR 3102( c) "petitioner is entitled to pre-action disclosure of information

as to the identity of an anonymous blogger, where, like here, he has sufficiently

established the merits of [his] proposed cause of action for defamation against that person

or persons, and the information sought is material and necessary to identify the potential

defendants." Cohen, 25 Misc. 3d at 949, (citingMatter of Uddin v. New York City

Transit Authority,27 A.D.3d 265, 810 N.Y.S.2d 198 (1st Dep't 2006) andMatter of

Stewart v. New York City Transit Authority, 112 A.D.2d 939, 492 N.Y.S.2d 459 (2d Dep't

1985)).

Defamation is defined as the making of a false statement of fact which tends to

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expose the plaintiff to public contempt, ridicule, aversion or disgrace. Sandals Resorts

Intl Ltd. v. Google, Inc.,86 A.D.3d 32, 38 925 N.Y.S.2d 407, 412(1st Dept. 2011)

(internal citations omitted). The elements of a cause of action for defamation consist of

"a false statement, published without privilege or authorization to a third-party,

constituting fault as judged by, at a minimum, a negligence standard, and it must either

cause special harm or constitute defamationper se." Dillon v. City of New York,261

A.D.2d 34, 38, 704 N.Y.S.2d 1, 6 (1st Dep't 1999). Additionally, New York courts have

recognized that in finding a cause of action for libel, the statements at issue must have

been statements of fact, as opposed to statements of opinion. See, e.g., Penn Warranty

Corp. v. Di Giovanni,10 Misc.3d 998, 1002 (N.Y. Sup.Ct. 2005).

A. Factual Nature of the Defamatory StatementsWhen determining whether a given statement is an expression of opinion or an

assertion of fact, the determination is to be made on the basis of what the average person

hearing or reading the communication would take it to mean.'' Steinhilber v. Alphonse,

68 N.Y.2d. 283, 290, 501 N.E.2d 550, 508 N.Y.S.2d 901 (N.Y. 1986). Furthermore, in

reaching such a determination, the factors to be considered are:

(1) whether the specific language in issue has a precise meaningwhich is readily understood; (2) whether the statements are capable

of being proven true or false; and (3) whether either the full

context of the communication in which the statement appears orthe broader social context and surrounding circumstances are such

as to signal ... readers or listeners that what is being read or heard

is likely to be opinion, not fact.

Grossi v. New York Times Co., 82 N.Y.2d. 146, 153, 623 N.E.2d 1163, 603 N.Y.S.2d 813

(1993) (internal citations omitted).

The numerous egregious statements at issue in this case were clearly asserted not

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as mere opinions, but rather as facts, which were specifically designed to command the

attention and immediate response of their intended readers. Statements are considered

defamatory, in that they are statements of fact and not opinions where their tone is

straightforward and declaratory, and does not appear to be intended as a juvenile attempt

to achieve humor.'' Suarez v. Angelet, 90 A.D.3d 906, 935 N.Y.S.2d 599 (2d Dep't

2011). Statements such as those alleging that Petitioner Rose is being criminally

investigated" or that he is connected to child pornography constitute such

straightforward, factual indictments.

B.

Publication of the Statements

By posting the writings on the two blogs and Twitter, the Blogger broadcasted the

libelous statements on the Internet and clearly published and broadcasted the statements

to many more people than just the Petitioner. The Blogger was broadcasting to anyone

who could find the page or who was searching for information on Adam Rose or his

company, Rose Associates. The blog posts were published with the specific intention of

harming the Petitioner personally and professionally.

C. False and Defamatory Nature of the StatementsThe Court need only examine the specific statements made in the posts and

consider the manners and contexts in which they were published in order to determine

that the postings and e-mails were defamatory. Petitioners will proceed under a theory

that both the blog postings and each of the e-mails was libelousper se. The definition of

libelper seis any written or printed article ... [which] 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 persons, and to deprive him of their friendly intercourse in

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society.''Rinaldi v. Holt, Rinehart & Winston, Inc., 42 N.Y.2d 369, 379, 366 N.E.2d

1299, 397 N.Y.S.2d 943 (N.Y. 1977). Four categories are considered libelousper se.

They are statements that (1) charge plaintiff with a serious crime[] (2) tend to injure

plaintiff in its business, trade or profession, (3) plaintiff has some loathsome disease, or

4) impute unchastity. Floyd Harbor Animal Hosp., v. Doran,2009 N.Y. Misc. LEXIS

5610, 19 - 20, 2009 N.Y. Slip Op 32868(U) (N.Y. Sup.Ct. 2005). Where statements are

libelousper se, damages are presumed and need not be separately proved. Id.

The published statements complained of herein are libelousper sebecause each

tends to injure the Petitioner in his business, trade or profession, as they are aimed at

Petitioners real estate business and many also charge Petitioner with serious crimes,

including fraud, a connection to and concealment of child pornography, racketeering and

being under criminal investigation by federal authorities. Rose Aff. 4-12.

D. Injury to the PetitionerAs noted by the Court inDillon v. City of New York, where a plaintiff is able to

prove defamationper se, injuries flowing from the defamation need not be proven. 261

A.D.2d at 38. As a result, "the law presumes damage to the [libeled] individual's

reputation so that the cause is actionable without proof of special damages.'' Vian v.

Kossman,161 A.D.2d 574, 575, 555 N.Y.S.2d 152, 154 (2d Dep't 1990). Therefore,

Petitioner need not establish damages as an element of [his] defamation cause of action,

and ... failure to do so [would] not require [dismissal]." Id. at 576.

Although no proof of damages is necessary in this case, Petitioner has still

demonstrated such damages in the Rose Affidavit, including damage to his professional

reputation and his business. Rose Aff. 6, 14.

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Documents

Racketeering Defendant Lawyer Debra Guzov Esq Memorandum of Law in Support of Racketeering Defendant Adam Rose for Order to SHOW CAUSE to OBTAIN IDENTITIES OF ANONYMOUS BLOGGERSre: