The following papers numbered were read on this motion:

Order to Show Cause, Affirm., Exhibits, Supplemental Papers, and Affidavit of Service.................................................................................................................1-3

Answer and Notice of Rejection.....................................................................................4-5

Emails and Letters to Court from Thomas Lai, Esq.......................................................6-8

CHARLES J. MARKEY, J.:

The defendant Feng Gao ("Gao") is a resident of Flushing, Queens County, New York, who has experienced losses or setbacks in various actions that he has initiated in several actions brought in Supreme Court of the State of New York and the Civil Court of the City of New York. Upset over the outcome, he distributed and displayed flyers and posters in store windows, newsstands, street lamps, and utility poles in Flushing, accusing his attorneys of having collaborated with Dai & Associates, P.C., the lawyers for his adversary in those actions, to engineer and ensure his defeat in court. The flyers and posters accuse Dai & Associates of conspiring with Gao's lawyers to ensure Gao's loss in legal actions, using improper collaboration, fraud, and forgery of documents.

Some persons may react to the accusations with a mere shrug of the shoulder, dismissing them as the raving and ranting byproduct of a desperate and disgruntled litigant. Other individuals may take the accusations seriously, especially in the predominantly Chinese community in sprawling and busy Flushing. Dai & Associates, P.C. (also referred to herein as "the Dai law firm"), with offices in downtown Flushing, values its reputation as professional lawyers, admitted to the Bar of this State and [*2]practicing before the undersigned and other judges of this Court. Having seen the posters and flyers accusing it of collaboration, fraud, and forgery, and having been contacted by clients as to their truth, the plaintiffs, Dai & Associates, P.C., and its sole principal, Shang Dai, Esq. ("Dai"), have served and filed a summons and complaint, dated March 1, 2011, suing Gao for libel. On that date, they also filed an order to show cause, seeking to enjoin the libel.

On March 10, 2011, the return date of the order to show cause, the Court noted that the defendant did not attend. On closer look at the affidavit of service, the Court was concerned whether Gao received them, noting the service upon a "John Doe." The Court, by its Principal Court Attorney, inquired by email to Thomas Lai, Esq. ("Lai"), as to the propriety of the service upon Gao, and whether Gao received the papers. Lai responded, in effect, that Gao was served and that a set of papers sent to Gao by mail were not returned to the Dai law firm as undeliverable. A further email and letter to the Court from Lai clarified that Gao did serve an answer, but that the Dai law firm rejected it since it was not verified.

Although a litigant, such as Gao, may be upset at sustaining a loss in court, the setback does not entitle them to go on a rampage soiling the names of lawyers. Despite popular jokes equating lawyers with reptiles (Jess M. Brallier, Lawyers and Other Reptiles [Contemporary Books 1992]), the fact is that to be admitted to the New York State Bar, a candidate for attorney must both achieve satisfactory results on difficult examinations and display good moral character. A legal giant like Chief Judge [later U.S. Supreme Court Justice] Benjamin N. Cardozo, whose own father left the Bench on charges of corruption (Andrew L. Kaufman Cardozo 9-20 & 41 [Harvard Univ. Press 1998], understood well that, especially in the legal profession, "[r]eputation is a plant of tender growth, and its bloom, once lost, is not easily restored." People ex rel. Karlin v Culkin, 248 NY 465, 478, 162 NE 487 (1928).

To charge lawyers with collaborating with an adversary counsel to effect and engineer a result and to use fraud and forgery would constitute defamation per se. In this case, the charges having been put in writing, the complaint charges libel per se since it directly injures the plaintiffs in their professional practice. See, Wachs v Winter, 569 F Supp 1438, 1441 & 1443 [EDNY 1983] [charging lawyer with collaboration with adversary and manipulation of false documents]; accord, Clemente v Espinosa, 749 F Supp 672 [E.D. Pa.] [imputing criminal conduct to attorney]; Cassidy v Warner, 256 App Div 878 [3rd Dept. 1939] [libel per se].

Courts have recognized that especially where a lawyer or a law firm serves a certain ethnic community, as does Dai and the Dai law firm with the Chinese community [*3]of Flushing, the loss of reputation from a libel per se may be irretrievable. In Zator v Nowy Swiat Pub. Co., 245 App Div 830 [2nd Dept. 1935] [per curiam], a newspaper article basically charged the plaintiff, a lawyer, with perjury. The Appellate Division, Second Department, reinstating the complaint from the lower court's dismissal, recognized that the article affects the plaintiff's "professional standing as an attorney, especially with his Polish clients." Id. at 830. Accord, Lee v Healthfirst, Inc., 2007 WL 634445 [SDNY 2007] [alleged defamatory statements impugning defendant's reputation and disparaging defendant's business integrity in the Chinese community].

In the present case, if Gao's posters and flyers are held to be libelous per se, the economic consequences could be crippling for the partners, associates, and staff of a law firm that was tarred with accusations leveled with knowing or reckless disregard for the truth.

Flushing has a tight-knit Chinese community, and its residents feel comfortable being represented by a member of their own ethnicity who can speak their language and understand them. Indeed, Gao's posters and flyers were written in Chinese evidencing the unfamiliarity of Chinese residents of Flushing with English. For Shang Dai and the Dai law firm to be tarred by ruinous allegations of collaboration, fraud, and forgery among a populace that is not acquainted with the operations of American courts may well constitute irreparable harm that might justify injunctive relief in the present case.

For numerous decades, courts clung to the axiom that equity will not enjoin a libel. See, e.g., Salomone v Macmillan Pub. Co., Inc., 97 Misc 2d 346, 351 [Sup Ct New York County 1978]. The United States Supreme Court came close to deciding that issue in Tory v Cochran, 544 US 734 [2005], but did not do so, when, after the grant of the petition for certiorari, a party's death led the members of the High Court to question whether the issue of the continued injunction was moot.

If the writings issued and displayed by Gao throughout Flushing are indeed false, then the courts should intercede with equitable relief to reduce the rupture of reputation damage.

In Lassiter v Lassiter, 456 F Supp 2d 876 [E.D. Ky. 2006], United States District Court Judge William O. Bertelsman, the author of an important article on defamation law, (Bertelsman, Injunctions Against Speech and Writing: A Re-evaluation, 59 Ky. L.J. 319 [1971]), discussed the availability of injunctive relief on speech in the modern trend of cases. The discussion in Lassiter v Lassiter indicates that courts, in contemporary decisions, are not despairing over enjoining speech in proper cases. See, Pittsburgh Press Co. v Pittsburgh Comm'n on Human Relations, 413 US 376 [1973] [5-4 decision] [*4][Commission's order did not constitute an impermissible prior restraint; the Court stated: "We hold only that the Commission's modified order, narrowly drawn to prohibit placement in sex-designated columns of advertisements for nonexempt job opportunities, does not infringe the First Amendment rights of Pittsburgh Press."].

Shang Dai, Esq., has the authority to press his complaint not only for himself, but for the law firm as its sole principal. See, Ma'ayergi and Associates, LLC v Pro Search, Inc., 115 Conn App 662, 974 A2d 724 [2009] [attorney had standing to bring a claim of defamation on behalf of himself, although he also alleged injury to his law firm and limited liability company].

This Court, troubled by the failure of Gao to appear on the motion, inquired by email of Thomas Lai, Esq., as to the service of the pleadings, order to show cause, and supporting papers. As indicated above, the defendant, as related by Mr. Lai in one of his emails responding to the Court's question, has answered the complaint. It does not appear that the answer has been filed by Gao with the Court, and the plaintiffs have rejected Gao's answer. Gao served his answer on or about March 17, 2011, within the 20 days required for the service of an answer, but failed to include his sworn verification, in response to plaintiffs' verified complaint. Defendant Gao must re-serve an answer in proper form that shall include a verification.

In light of the foregoing, the Court hesitates from granting the injunctive relief requested by plaintiffs of ordering the removal of the libelous posters and flyers. If the defendant in his answer contends that truth is a defense or claims some sort of privilege, the defendant would be entitled to a hearing. The Court thus warns the defendant that it will require a verified answer, in response to the verified complaint, and it will not be swayed by generalized allegations of a conspiracy between Gao's former lawyers and the Dai law firm. The allegations made by Gao in his poster need to be supported by concrete proof.

At this point, the plaintiffs are not entitled to any relief. There has been no finding as to the ultimate outcome of this lawsuit. A default judgment has not been entered. Indeed, as of yet, the plaintiffs have not even moved for a default judgment. Thus, there is no underlying finding or judgment as to the falsity of the writings, not even a default judgment. See, Lassiter v Lassiter, 456 F Supp 2d 876, 883-884, supra, discussing Lothschuetz v Carpenter, 898 F2d 1200 [6th Cir. 1990]. Although courts are properly advancing from the tired and inflexible, unbending notion that equity will not restrain a libel, an injunction should issue only after the defendant has been given an opportunity to be heard on his alleged defenses. [*5]

The Court thus denies the relief requested in the order to show cause, without prejudice, as premature.

The Court requires the plaintiffs to serve defendant with a copy of this decision bearing the Clerk's dated stamp of its entry, together with notice of entry on all known addresses for Gao. The Court will also send a copy of this decision on Gao at the email address he has listed on his flyers and posters, and requires the plaintiffs to serve Gao with a copy of this decision, preferably using the Adobe Systems Portable Document Format ("pdf"), at Gao's email address.

The Court, on its own motion, pursuant to CPLR 308[5], orders that, henceforth, the plaintiffs serve Gao at both the address he has listed in his attempted answer and the email address he provided in his flyers and posters. See, Alfred E. Mann Living Trust v ETIRC Aviation S.a.r.l., 78 AD3d 137, 141-142 [1st Dept. 2010] [citing several federal and state decisions that have permitted service by email].

Defendant Gao shall be given until August 11, 2011, to amend his answer, include a sworn and notarized verification, serve the amended and verified answer upon plaintiffs, and file it with the County Clerk at the main courthouse in Jamaica. If the Defendant Gao fails to adhere to the aforesaid deadline, the Court will entertain a motion for a default judgment and for any other relief consistent with this opinion and order.

The foregoing constitutes the decision, order, and opinion of the Court.

______________________________Hon. Charles J. Markey

Justice, Supreme Court, Queens County

Dated: Long Island City, New York

May 20, 2011