Amuze v. Better Bus. Bureau

1

2023 NY Slip Op 30679(U)

AMUZE, Plaintiff, v. BETTER BUSINESS BUREAU, THE BETTER BUSINESS BUREAU OF GREATER MARYLAND Defendant.

Index No. 651529/2022, MOTION SEQ. No. 001

Supreme Court, New York County

March 3, 2023

Unpublished Opinion

PRESENT: HON. DAKOTA D. RAMSEUR Justice.

DECISION + ORDER ON MOTION

DAKOTA D. RAMSEUR JUDGE.

The following e-filed documents, listed by NYSCEF document number (Motion 001) 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16 17, 18, 19, 20 were read on this motion to/for -DISMISSAL.

In March 2022, plaintiff Amuze commenced this action against defendants Better Business Bureau and its affiliate the Better Business Bureau of Greater Maryland asserting causes of action for defamation, libel, and intentional infliction of emotional distress over four comments that consumers of Amuze posted to BBB-GM's online platform. In this motion sequence (001), defendants move to dismiss the complaint in its entirety pursuant to CPLR 3211 (g) (1) and (a) (7). Plaintiff opposes the motion; however, should the Court be inclined to grant the motion, it cross-moves for leave to amend the complaint pursuant to CPLR 3025. For the following reasons, defendants' motion is granted, and plaintiffs cross-motion to amend the complaint is denied. .

BACKGROUND

The Better Business Bureau of Greater Maryland (hereinafter "BBB-GM") is a nonprofit organization that publishes online profiles of business located or headquartered within the geographic region of Maryland. The profiles provide a platform for consumers of these business to comment or complain publicly about their interaction with the businesses themselves. From 2019 through 2022, BBB-GM maintained an online profile for Amuze,^[1] an online clothing retailer. (NYSCEF doc. no. 2 at ¶6, amended complaint.) Amuze alleges that at least four statements listed on Amuze's BBB-GM profile defame it. These include the statements:

(1) "This [sic] people are fraud.";

(2) "They promised me a full refund on March 31 st. I have all the messages to prove everything. It is now 11:36 pm on April 12th and I still have not gotten a refund." (3) "This company is guilty of unethical business practices."; and

(4) "They will charge a huge return shipping fee and offer credit for more defective or counterfeit merchandise." (Id. at ¶10.)

Plaintiff asserts that, at the time of publication, BBB-GM knew or should have known . that these statements were false, inaccurate, and/or erroneous. (Id. at ¶11, 20.) The original complaint does not allege any further operative facts. However, as plaintiff has moved pursuant to CPLR 3025, the Court below includes the allegations from plaintiffs proposed amended

According to plaintiffs proposed amended complaint, BBB-GM reached out in May of 2019 to "meet Plaintiff and learn more about Plaintiffs business, and fact-find." (NYSCEF doc. no. 14 at ¶8.) Plaintiff then "cooperated" with BBB-GM's request for information, "with the understanding that Defendant would ensure inaccurate, false or otherwise erroneous information" would be removed from its online profile. (Id. at ¶9.) On November 4, 2021, BBB-GM advised plaintiff that it had posted an "F" rating on its Amuze profile, because, in plaintiffs words, "Plaintiff refused to engage in Defendant's arbitrary dispute resolution process." (Id. at ¶17.) The proposed complaint further states that the BBB and BBB-GM letter grade "presents BBB's opinion" of the business's "marketplace behavior" and takes into account the business's responsiveness to customers complaints filed with them, its transparency, and the truthfulness of their advertising practices. (Id. at ¶13.) As to damages, plaintiff alleges that, as a result of BBB-GM's international reputation and authority in the industry, plaintiffs reputation has been harmed. (Id. at ¶¶29-30.)

As described above, plaintiff commenced this action against BBB and BBB-GM . asserting causes of action for defamation, libel per se, and intentional infliction of emotional distress ('TIED"). Herein, defendants move under CPLR 3211 (g) (1) to dismiss the complaint. They argue that plaintiffs claims involve "public petition and participation" as defined by Section 76-a of New York's Civil Rights Law, and therefore CPLR 3211 (g) (1) requires the Court to dismiss causes of action where plaintiff cannot demonstrate "a substantial basis in law" for its claims. As to whether plaintiff can demonstrate that substantial basis, defendants contend that Amuze's claims are barred under Section 230 of the federal Communications Decency Act (47 USC §230). Alternatively, defendants contend that plaintiffs causes of action must be dismissed under the traditional CPLR 3211 (a) (7) failure-to-state-a-cause-of-action standard as plaintiff has failed to plead the requisite elements of defamation, libel, and IIED. Plaintiff opposes, arguing that the cases defendants cite to do not establish this case as the subject of a § 76-a action; even if the action is governed under the "public petition and participation" standard, there is a substantial basis in law for its claims; and that the complaint in fact meets the notice pleading standards of CPLR 3211 (a) (7).

DISCUSSION

Motion to Dismiss Under CPLR 3211 (g) (1).

Under CPLR 3211 (g) (1), a motion to dismiss "shall be granted" where the moving party has demonstrated that the subject of the motion involves "public petition and participation" as defined by §76-a of New York's Civil Rights Law (known as New York's anti-SLAPP statute) unless the responding party "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].) §76-a defines an "action involving public participation" as a claim based upon "(a) (1) any communication in a place open to the public or a public forum in connection with an issue of public interest." (Civil Rights Law §76-a.) That same section requires "public interest" be construed broadly and shall mean any subject other than a purely private matter. (Id.) Reading these two provisions together, once the defendant has established that the subject of the action is both (1) based on communications in a public forum, and (2) concerns the public interest, then the Court must switch the burden to the plaintiff to demonstrate that its claim has a substantial basis in the law. In reviewing, the sufficiency of a claim under CPLR 3211 (g) (1), courts may consider exhibits and other documents submitted in evidentiary form that would not typically be allowed under a conventional CPLR 3211 (a) (7) motion.

Defendants have clearly established that the allegedly defamatory statements on defendants' Amuze profile are "communications... in a public forum" and concern the "public interest." In Aristocrat Plastic Surgery, P.C. v. Silva (206 A.D.3d 26, 30-31 [1st Dept 2022]) the First Department held that a patient's review of her plastic surgeon on an "internet recommendation platform," one which had a stated purpose of "being a key advisor for people considering plastic surgery," qualified for protection under §76-a because the review was posted in a public forum-the review platform and aggregator-and concerned a public interest- namely, consumer advice concerning medical practitioners. In reaching this conclusion that such reviews are "in the public interest," the First Department cited numerous cases in which allegedly defamatory statements posted on public websites were considered to be protected under §76-a. For example, in Center for Med. Progress v. Planned Parenthood Fedn. of Am., the federal court for the Southern District of New York found that allegedly defamatory statements concerned the public interest because they were published on Twitter and related to civil and criminal actions against the plaintiff. (551 F.Supp.3d 320, 322 [SDNY 2021].) And in Great Wall Med. P.C. v. Levine (74 Mise 3d 1224 [A] at *1 [Sup. Ct. NY County 2022]) this Court held that statements posted on public websites such as Yelp, ZocDoc, and Facebook concerning the defendant's experience with plaintiffs medical practice were "clearly intended as a warning to other women," and thus were made in connection with an issue of public importance.

Here, defendants have established that the reviews and complaints posted to BBB and BBB-GM profiles concern issues of public interest because such posts are intended to provide otherwise unavailable information about specific businesses to the public and future potential consumers. To the extent that plaintiff provides an opposition on this point, it lacks merit.

As defendants have established that the subject defamatory statements involve "public petition and participation" under §76-a, the Court turns to whether plaintiff has demonstrated a substantial basis in law for its claims. The Court finds that neither the original complaint nor the proposed amended complaint has put forth a substantial basis in law for plaintiffs claims.

Under Section 230 (c) (1) of the federal Communications Decency Act ("CDA"), "no provider... of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." (47 USC §230.) Section 230 (c) (1) shields a defendant from civil liability when (1) it is a provider of an interactive computer service as defined by §230 (f) (2); (2) the plaintiff's cause of action "treat[s] the defendant as the 'publisher or speaker' of the information;" and 3) the information is provided by an "information content provider" or, as is defined by §230 (f) (3) a "person or entity that is responsible, in whole or in part, for the creation or development of information provided through the...