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150328/2018
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SUPREME COURTOF THE STATE OF NEW YORK

COUNTY OF NEW YORK
-- -----------------------------------------------------------x
ALICE BAHAR,

Plaintiff,

-against- Index No.: 150328/2018

SABETFARD,1
CHARLET SANIEOFF AND ELIZA Assigiled to:
Hon. W. Franc Perry, J.S.C.
Defendants.
----------- -------------------------------------------------------X

MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFF'S MOTION FOR LEAVE TO REARGUE INDIVIDUAL

DEFENDANTS'
PARTIAL MOTION TO DISMISS THE AMENDED COMPLAINT FOR FAILURE TO STATE A
CAUSE OF ACTION PURSUANT TO CPLR3211(a)(7) AND (1)

Alyssa Feldman, Esq.

J. Patrick DeLince, Esq.
DELINCE LAW PLLC
299 Broadway, Suite 1310
New York, NY 10007

(212) 382 3544

Attoryteys for Plaintiff

1
This Court ordered, in its Decision and Order entered November 17, 2020, "that the caption be amended to reflect
caption"
the dismissal and that all future papers filed with the court bear the amended ([NYSCEF Doc. No. 150], at
10, entered November 17, 2020).

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PRELIMINARY STATEMENT

Plaintiff seeks herein for an order of the Court, pursuant to CPLR 2221(d)(2), granting

Defendants'
leave to reargue motion to dismiss the Amended Complaint pursuant to CPLR

3211(a)(7) and (1), to the extent granted by the Court on November 16, 2020 [NYSCEF Doc. No.

150], dismissing from Count One of the Amended Complaint, asserting intentional infliction of

emotional distress, Abraham Sanieoff ("A. Sanieoff"), Leor Sabetfard {"L. Sabetfard"), and

Matthew Sabetfard ("M. Sabetfard"); and from Count Five, asserting tortious interference with

prospective economic advantage, A. Sanieoff, L. Sabetfard, M. Sabetfard, and Defendant Charlet

Sanieoff ("Defendant C. Sanieoff").

Plaintiff seeks reargument on the basis that the Court's prior determination failed to search

the sufficiency of the Amended Complaint as a whole, instead, disaggregating and

defendants'
compartmentalizing each conduct, and overlooked relevant material facts of the nature

defendants'
and scope of coordinated and collective conduct, and particularly of L. and M.

Sabetfard's participation therein; the Court further misapprehended and misapplied controlling

principles of law with respect to conspiracy theory liability and the pleading requirements thereof.

Contrary to the Court's opinion, the behavior and activities of Leor and Matthew Sabetfard

pursuant to and in the furtherance of the Sanieoff/Sabetfard family's deliberate and malicious

campaign of harassment and intimidation against Plaintiff was not extremely limited. Defendants

C. Sanieoff and Eliza Sabetfard ("Defendant E. Sabetfard") threatened Plaintiff that she was being

watched, followed, stalked, and searched for; and the brothers provided the muscle, literally by

watching, following, stalking, and searching for Plaintiff on public streets and in public places,

and delivered on Defendant C. Sanieoff's and E. Sabetfard's promises to haunt Plaintiff by their

perpetual presence. The Court additionally overlooked a number of aggravating circumstances

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"outrageous"
contributing to the nature of the brother's actions, including, inter alia, that the

actions were motivated by revenge to exact punishment for the affair with A. Sanieoff, and were

of a longstanding duration and systematic occurrence.

The Court misapprehended or ignored legal doctrine controlling the determination of

individual liability under a conspiracy theory. Conspiracy theory liability is a rule of responsibility

the plaintiff to hold a defendant liable for the tortious acts and declarations of his co-
permitting

conspirators, where otherwise he could not be implicated. Indeed, the only purpose of allegations

of civil conspiracy is to hold liable for an injury one who does not directly cause that injury. Thus,

the very basis upon which this Court relied to dismiss the brothers, that is, because the allegations

against them alone do not give rise to an IIED claim, is precisely the reason why the brothers can

be found liable under a conspiracy theory.

RELEVANT PROCEDURAL HISTORY

007,2
In motion sequence filed February 24, 2020, Defendants Abraham Sanieoff, Charlet

Sanieoff, Eliza Sabetfard, Leor Sabetfard, and Matthew Sabetfard moved, pursuant to CPLR

3211(a)(7), to dismiss the Amended Complaint [NYSCEF Doc. No. 83] on the ground that it failed

to state a cause of action. Oral argument on the motion took place on October 29, 2020, and the

Defendants'
Court entered on November 17, 2020, a Decision and Order granting in its entirety

motion sequence 007. Consequently, as relevant to this instant motion, the Court dismissed from

the Amended Complaint count one, alleging intentional infliction of emotional distress, as against

Abraham Sanieoff, Leor Sabetfard, and Matthew Sabetfard; and count five, alleging tortious

interference with prospective economic advantage, as against Abraham Sanieoff, Leor Sabetfard,

2
As a party in an e-filed case, Plaintiff refers to previously e-filed documents by docket number (CPLR 2214(c); see
also Biscone v. Jet-Blue Airway Corp., 103 A.D.3d 158 (2d Dept. 2017)).

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Matthew Sabetfard, and Defendant Charlet Sanieoff (Decision and Order [NYSCEF Doc. No.

150], at 10, entered November 17, 2020).

In its determination of the prior motion, the Court considered the following three

allegations that Plaintiff was followed by: Leor Sabetfard on March 3, 2017 (Am. Compl.

[NYSCEF Doc. No. 83], ¶ 50, filed February 6, 2020); either Leor or Matthew Sabetfard on June

6, 2017 (Id. at ¶ 59); and both Leor and Matthew Sabetfard on July 27, 2017 (Id. at ¶ 63). The

Court did not engage in any meaningful analysis of the allegations contained in the Amended

Complaint, and dismissed the Sabetfard brothers in two sentences, "these allegations alone do not

give rise to a claim for [IIED], even under Plaintiff's new theory of conspiracy liability. The

alleged participation of the Sabetfard brothers was extremely limited and does not amount to the

tort."
kind of outrageous behavior envisioned to be actionable in (Decision and Order [NYSCEF

Doc. No. 150], at 5, entered November 17, 2020.)

STATEMENT OF RELEVANT FACTS

In the Amended Complaint [NYSCEF Doc. No. 83], Plaintiff has alleged that, beginning

on February 17, 2017, after discovering Abraham Sanieoff's affair, all individual Defendants

together embarked upon a three-year long, deliberate and malicious campaign of harassment and

intimidation against Plaintiff. The Sabetfard brothers brought to bear on Plaintiff the verbal abuse

and threats that she received from their sister, Defendant Charlet Sanieoff, and mother, Defendant

Eliza Sabetfard. Plaintiff was threatened and intimidated, both orally and in writing, on a near daily

basis, by Defendants Charlet Sanieoff and Eliza Sabetfard, promising Plaintiff, in chilling and

unequivocal terms, that she was being followed and watched at all times by various individuals

whom Defendants 1íad enlisted for the task (see Am. Compl. [NYSCEF Doc. No. 83], ¶ 29, filed

February 6, 2020). After telling Plaintiff that she had "so many people watching [Plaintiff] 24

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day,"
hours a Defendant C. Sanieoff specified to Plaintiff that Defendant C. Sanieoff has four

affiliations with the NYPD, all inclined to do her favors, and that all of her private investigators

"tracking"
are Plaintiff, when she is awake, asleep, eating, and losing her mind (Id at ¶ 30). And,

that Defendant C. Sanieoff uses private investigators already had been known and confirmed to

Plaintiff by Abraham Sanieoff (see, e.g., id at ¶ 26).

Upon receiving from Defendant E. Sabetfard, on February 18, 2017, a voicemail stating,

day"
"just a reminder, I am on you 24/7 ... We are on you 24 hours a (Am. Compl. [NYSCEF

Doc. No. 83], ¶¶33-34, filed February 6, 2020), Plaintiff felt compelled by fear to go to the police

and file a report. Plaintiff was taunted at various time throughout the following day, February 19,

time"
first by Defendant E. Sabetfard, that Plaintiff is being "watched all the (id. at ¶35), and then

hide- everywhere"
by Defendant C. Sanieoff: "Try and it'll Never work. I have eyes on you (id at

¶ 37). In a voicemail on February 20, Defendant C. Sanieoff, inter alia, graphically threatened

Plaintiff with murder and terrorized Plaintiff, "You can run, you can hide. My team is watching

you; my team is watching your every move. ... Yesterday [February 19], they were 100 feet away

from you ... Trust me when I tell you my investigators and undercover NYPD officers will be

move"
following your every (id at $38). Also, on February 20, Defendant E. Sabetfard conceded

to Plaintiff in a voicemail, "The group of family are together like a thick rope and protecting

[Abraham Sanieoff] against [you] ... Every breath you take, every move that you make, ten people

..."
are watching it (id at 40.)

On February 21, in a particularly terroristic voicemail, Defendant C. Sanieoff revealed her

knowledge of Plaintiff's home address, "I physically will come there, outside of [Plaintiff's street

address and apartment number]. You think you can move? You could run anywhere, we're

..."
watching you; when you're eating, we are 50, 50 feet away from you (Am. Compl. [NYSCEF

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Doc. No. 83], ¶ 44, filed February 6, 2020.) Later, on February 21, Defendant E. Sabetfard

"somebody"
threatened to send to Plaintiff's office and, again, told Plaintiff: "Every move that

you."
you make, every breath that you take, somebody is watching (Id at ¶ 45.)

Upon information and belief, on or before February 28, 2017, the detective assigned to

Plaintiff's criminal case against Defendant C. Sanieoff informed Defendant C. Sanieoff that

Plaintiff had filed with the police a report of aggravated harassment and would have issued in her

favor and against Defendants a temporary order of protection (Am. Compl. [NYSCEF Doc. No.

83], ¶ 49 n. 5, filed February 6, 2020). On February 28, Defendant E. Sabetfard antagonized and

tormented Plaintiff in a voicemail, "Don't you think for a second you've been forgotten. You think

because you got a restraining order, everything is going to be forgotten? Not a way in hell ... Every

watching..."
move that you make, every call that you make, its [sic] been (Id. at ¶ 48.)

On March 3, 2017, approximately two and one half weeks after Defendants had

commenced harassing Plaintiff, dismissed defendant Leor Sabetfard followed on foot closely

behind Plaintiff, as she left the Starbucks on West 10th and Hudson Street, where she frequently

visits (Am. Compl. [NYSCEF Doc. No. 83], ¶ 50, filed February 6, 2020). Plaintiff ran and stood

in front of the NYPD precinct located at 233 West 10th Street, until Leor Sabetfard walked passed

her, and then ducked behind a car in the precinct parking lot (id). Plaintiff watched Leor Sabetfard,

as he reached the corner of the street, turn around and search to find Plaintiff (id). Shortly

thereafter, Plaintiff called the police to report that she had been followed that morning by L

Sabetfard (id). In the evening of March 6, Defendant E. Sabetfard intimidated and terrified

Plaintiff by accurately describing in a voicemail what Plaintiff had been wearing that day: "...

You've been watched every second. Try to get your slutty boots running around. Somebody was

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time"
watching you 24 hours, all the (id at ¶ 51; see also Pl. Aff. in Opp. Mot. to Dismiss

[NYSCEF Doc. No. 109], ¶ 5, filed March 20, 2020).

In or around late March-early April 2017, on Greenwich Street and Barrow Street, a black

car stopped suddenly in Plaintiff's path, and dismissed defendant Matthew Sabetfard got out of

the car and just stood in front of Plaintiff, staring at her, until she turned and walked another way

(see Pl. Aff. in Opp. Mot. to Dismiss [NYSCEF Doc. No. 109], ¶¶ 6-7, filed March 20, 2020).

Many other times, Plaintiff would see driving or parked in the West Village (where she lives) the

Sabet Group van, usually with Leor Sabetfard staring down Plaintiff from the front passenger seat

(id). Plaintiff was frightened and hysterical, and, on April 11, 2017, out of fear for her life, left

the country for three weeks (Am. Compl. [NYSCEF Doc. No. 83], ¶ 52, filed February 6, 2020).

Plaintiff returned to the United States and, almost immediately thereafter, on May 1, 2017,

watched a Sabet Group van circle the block, on West 10th and Bleeker Street, where she was

standing (Am. Compl. [NYSCEF Doc. No. 83], ¶ 53, filed February 6, 2020; see also P1. Aff. in

Opp. Mot. to Dismiss [NYSCEF Doc. No. 109], ¶.7, March 20, 2020). On June 16, Plaintiff saw

either Leor or Matthew Sabetfard standing on the corner of Bleeker Street and Christopher Street,

just staring down Plaintiff (id at ¶ 59). On July 27, Plaintiff saw dismissed defendants Leor and

Matthew Sabetfard, again on West 10th Street and Hudson Street, circling the block on foot (id at

¶ 63).

ARGUMENT

A. LEGAL STANDARD ON A MOTION FOR LEAVE TO ARGUE

A motion for leave to reargue pursuant to CPLR 2221, "shall be based upon matters of fact

or law allegedly overlooked or misapprehended by the court in determining the prior motion, but

motion"
shall not include any matters of fact not offered on the prior (CPLR 2221(d)(2)). A motion

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court"
to reargue "is addressed to the sound discretion of the (Ginarte Gallardo Gonzalez &

Winograd, LLP v. Schwitzer, 2020 N.Y. Misc. LEXIS 9776, *2, 159991/2018, 2020 NY Slip Op

33770(U), **2 (Sup. Ct., N.Y. County November 13, 2020), quoting William P. Pahl Equip. Corp.

v. Kassis, 182 A.D.2d 22, 27 (1st Dept. 1992), lv. dismissed in part, denied in part 80 N.Y.2d 1005

(1992), rearg. denied 81 N.Y.2d 782 (1993) (external quotations omitted)).

B. THE COURT MISAPPLIED THE PROPER LEGAL STANDARD ON A MOTION TO

DISMISS FOR FAILURE TO STATE A CLAIM. AND OVERLOOKED RELEVANT
MATERIAL FACTS OF THE NATURE AND SCOPE OF THE SABETFARD
BROTHERS'
PARTICIPATION IN THE CAMPAIGN OF HARASSMENT AND
INTIMIDATION AGAINST PLAINTIFF

In its Decision and Order [NYSCEF Doc. No. 150], the Court premised its dismissal of the

Sabetfard brothers on a finding that their alleged participation was extremely limited and, thus, did

"outrageous"
not amount to behavior sufficient to state a claim of IIED. In so holding, the Court

misapplied the correct legal standard for evaluating the sufficiency of a complaint pursuant to

defendants'
CPLR 3211(a)(7), to the extent that it disaggregated and compartmentalized each

behavior and activities and, thereby, failed to read as a whole the allegations contained in the

Amended Complaint. In particular, the Court considered in a vacuum, rather than in the context of

brothers'
the malicious campaign in which they occurred, the participation in the harassment of

Plaintiff.

Although each individual act allegedly attributable to the brothers is not, alone, sufficiently

outrageous to state a claim of intentional infliction of emotional distress, "under New York law,

the proper inquiry is not merely whether each individual act might be outrageous. Rather, the

question is whether those actions - under the of the circumstances - amounted to a

totality

campaign"
deliberate and malicious (Rich v. Fox News Network, LLC, 939 F.3d 112, 123 (2d Cir.

2019); see also, Nader v. Gen. Motors Corp., 25 N.Y.2d 560, 569 (1970) (stating that the

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outrageousness element may be satisfied where "severe mental pain or anguish is inflicted through

a deliberate and malicious campaign of harassment or intimidation")). The allegations contained

in the Amended Complaint [NYSCEF Doc. No. 83] detail a longstanding campaign of deliberate,

systematic, and malicious harassment of Plaintiff, in which each defendant participated in varying

degrees. The Appellate Division has upheld IIED claims where, as here, the campaign at issue was

"longstanding" "systematic"
and (see, e.g., Seltzer v. Bayer, 272 A.D.2d 263, 264-65 (1st Dept.

2000)). A three-year long course of conduct designed to harass, intimidate, and interfere with

plaintiff's tenancy has been found sufficiently longstanding (see Green v. Fischbein Olivieri

Rozenholc & Badillo, 119 A.D.2d 345, 347 (1st Dept. 1986)).

"campaign" "unrelenting"
Some courts have construed a to require allegations either of

harassment directed at a single plaintiff, or harassment accompanied by physical threats (see, e.g.,

"campaign"
Eves v. Ray, 42 A.D.3d 481, 483 (2d Dept. 2007) (finding sufficiently outrageous a

where, on at least four occasions during a three-month period, a former husband attempted to

intimidate his former wife's attorney by stalking the attorney and threatening him physically and

financially)). In Eves v. Ray, the lower court rejected Eves's attempt to isolate each act and argue

that none is sufficiently outrageous, stating that, "[w]hen taken individually, each of Eves['s]

actions may be viewed as crude or boorish behavior insufficient to support the jury's finding.

However, Eves['s] conduct must be viewed in its totality and coupled with Ray's knowledge that,

in the past, Eves had made good on his threats of violence and displayed an unrelenting vengeful

streak. In context ... the evidence of Eves['s] conduct, in its totality, allowed the jury to reasonably

[IIED]."
find in favor of Ray's claim for (10 Misc. 3d 1058(A), 809 N.Y.S.2d 481, 2005 N.Y.

Misc. LEXIS 2783, ***19 (Sup. Ct., N.Y. Co. 2005).)

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outrageous"
Courts also have found conduct to be sufficiently "extreme or based upon the

actor's motive or state of mind. For instance, it has been held that, "when the actor's conduct is

extraordinarily vindictive, it may be regarded as so extreme and so outrageous as to give rise to a

distress"
cause of action for emotional (Flamm v. Nierop, 56 Misc. 2d 1059, 1060 (Sup. Ct.,

Westchester Co. 1968), citing Halio v. Lurie, 15 A.D.2d 62 (2d Dept. 1961); see also Nestlerode

v. Federal Ins. Co., 66 A.D.2d 504, 507 (4th Dept. 1979) (where there was no evidence of the

presence of vindictiveness, taunting or derision) (citations omitted)). Confrontational behavior and

activities are sufficiently outrageous when engaged in "with the intent of scaring and/or

intimidating"
the victim (Eves, 2005 N.Y. Misc. LEXIS 2783, ***22-23). In Berrios v. Our Lady

of Mercy Med. Ctr., the Court found insufficiently extreme or outrageous the defendant's conduct

in the absence of "evidence that defendants intended to inflict harm upon plaintiff or that they

manner"
treated him in a discourteous or offensive (20 A.D.3d 361, 362 (1st Dept. 2005) (finding

that defendants acted in good faith). Moreover, "conduct that will leave a lasting harm upon its

motion"
victim, is extreme and outrageous enough to move past a dispositive (Doe v. Doe, 2017

U.S. Dist. LEXIS 109692, *12, 16-cv-0332 (NSR) (S.D.N.Y. July 14, 2017), citing Halia, 15

A.D.2d at 66, see also Flatley v. Hartmann, 138 A.D.2d 345, 346 (2d Dept. 1988)).

"By contrast, allegations that a defendant affronted plaintiff in various ways, and in a

randomized manner, may fall short of establishing a 'deliberate and malicious campaign of

intimidation'"
harassment or (Allam v. Meyers, 2011 U.S. Dist. LEXIS 18581, *23, 2011 WL

721648, 09-cv-10580 (KMW) (S.D.N.Y. February 24, 2011)). In Seltzer v. Bayer, plaintiff failed

"campaign"
to demonstrate a where defendant dumped a pile of cement on a sidewalk in front of

plaintiff's home; tossed lighted cigarettes into plaintiff's yard; thew eggs on his front steps; and

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once threatened to paint a swastika on his house. (272 A.D.2d at 265). The court held that three

instances of littering and a particularly nasty remark failed to state a claim for IIED (Id.).

It is true that each individual act attributable to L. and/or M. Sabetfard would not, alone,

"outrageousness."
rise to the requisite level of However, Plaintiff does not allege of the Sabetfard

brothers isolated or randomized instances of indiscretions and annoyances (see Collins v. 8'illcox,

Inc., 158 Misc. 2d 54, 57 (Sup. Ct., N.Y. Co. 1992)). Rather, when viewed in the aggregate and

taken as true, Plaintiff's allegations state that the brothers engaged in a pattern of intimidating and

threatening behavior, characterized by repeated efforts to stalk, watch, and follow Plaintiff in

public, that were intended do and actually did cause Plaintiff continually to fear for her physical

safety (see id.). Allegations of similar conduct, undertaken with the intent of scaring and/or

"outrageous"
intimidating an individual, have been deemed sufficiently to withstand a motion to

("
dismiss (see, e.g., Eves, 2005 N.Y. Misc. LEXIS 2783, ***22-23 Repeated efforts to scare and/or

intimidate an individual, coupled with stalking that individual and threatening to destroy that

person's business, constitutes conduct sufficiently outrageous as to be intolerable in a civilized

society" ("
(citations omitted)); Flamm, 56 Misc. 2d at 1061 If a man finds himself perpetually

haunted by an enemy; if he is greeted at every turn by baleful looks, ... and derisive laughter; if

he cannot drive his car without imminent threat of a collision from the rear; and if he is troubled

at all hours by telephone calls followed only by silence, then it can hardly be doubted that he is

being subjected to extreme and outrageous conduct"); see also Nader, 25 N.Y.2d at 570-71).

Moreover, the actions of L. and M. Sabetfard did not occur in a vacuum and should have

brothers'
been considered in the larger context in which they occurred. In context, the Sabetfard

confrontational behaviors and activities occurred pursuant to a three year long, extraordinarily

vindictive course of conduct deliberately orchestrated and undertaken by all Defendants

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intentionally to break down Plaintiff s health and destroy her reason. Acting in concert with the

Sabetfards'
other defendants, Leor and Matthew repeated efforts to stalk, watch, and follow

Plaintiff occurred in conjunction with Plaintiff s receipt of violent and specific threats of murder,

severe bodily injury, and physical disfigurement from Defendants Charlet Sanieoff and Eliza

Sabetfard; receipt of their menacing admissions that Plaintiff was being shadowed and kept under

constant surveillance, at different times by private investigators, undercover NYPD officers,

family members, and Defendant C. Sanieoff s "team"; receipt of anonymous and pseudonymous

communications eliciting private facts and information Plaintiff; and experience of suspiciously

similar encounters with purported strangers or acquaintances also seeking to elicit from Plaintiff

private facts and information. The continuous nature of the conduct, when aggregated over time,

makes the conduct sufficiently outrageous to state an IIED claim (Collins, 158 Misc. 2d at 57

("Although each individual act allegedly attributable to King is probably not actionable, ... when

outrageous"
aggregated over time, the continuous nature of the conduct may make it sufficiently

Defendants'
to find in plaintiff s favor)). That harmful acts toward Plaintiff were motivated solely

by malice, in order to punish Plaintiff for her involvement with A. Sanieoff, rather than any

legitimate or incidental motive (Long v. Beneficial Finance Co., 39 A.D.2d 11, 14-15 (4th Dept.

1972); Flamm, 56 Misc. 2d at 1060 ("But when the actor's conduct is extraordinarily vindictive,

rise"
it may be regarded as so extreme and so outrageous as to give to an IIED claim)).

Thus, Plaintiff s allegations of L. and M. Sabetfard's conduct, when viewed in the

aggregate, depict a continuous pattern of malicious behavior, that has left a lasting ,harm upon

"extreme" "outrageous"
Plaintiff, is sufficiently and to move past a dispositive motion (Doe v.

Doe, 2017 U.S. Dist. LEXIS 109692, *12, 16-cv-0332 (NSR) (S.D.N.Y. July 14, 2017), citing

Halio, 15 A.D.2d at 66, see also Flatley v. Hartmann, 138 A.D.2d 345, 346 (2d Dept. 1988)).

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. C. THE COURT MISAPPREHENDED CONTROLLING PRINCIPLES OF LAW IN

ITS DETERMINATION OF SECONDARY LIABILITY UNDER A CONSPIRACY
THEORY

At issue here is the legal sufficiency of the Amended Complaint [NYSCEF Doc. No. 83]

insofar as it seeks to hold liable, under a concerted action theory of liability, dismissed defendants

Abraham Sanieoff, Leor Sabetfard, and Matthew Sabetfard for the intentional infliction of

emotional distress claim asserted individually against Defendants Charlet Sanieoff and Eliza

Sabetfard.

In its Decision and Order [NYSCEF Doc. No. 150], the Court dismissed from the Amended

Complaint [NYSCEF Doc. No. 83] the Sabetfard brothers on the ground that Plaintiff's allegations

brothers'
failed to plead the secondary liability under a conspiracy theory, because "these

distress"
allegations alone do not give rise to a claim for intentional infliction of emotional

(Decision and Order [NYSCEF Doc. No. 150], at 5, entered November 17, 2020). The Court's

reasoning appears to rely on the erroneous presumption that each participant in the conspiracy

conspiracy.3
independently must have committed the tort underlying the By the Court's own

reasoning, a conspirator cannot be held secondarily liable under a conspiracy theory for the

underlying tort unless he is found primarily liable for the commission of the underlying tort. Such

reasoning is patently absurd and would vitiate the doctrine of conspiracy theory liability, making

it indistinguishable, except in the context of a criminal case, from a finding of primary liability.

Allegations of conspiracy serve merely to permit a plaintiff to connect the actions of

separate defendants with an otherwise actionable tort, where otherwise these conspirators could

not be implicated (see Errant Gene Therapeutics, LLC v. Sloan-Kettering Inst. for Cancer

³
Because the Court conducted no - absolutely no - analysis, mmningful or otherwise, of Plaintiff's allegations of
conspiracy theory liability, the Court's summary rejection of these allegations reasonably could be perceived as
arbitrary and based on nothing at all.

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Research, 174 A.D.3d 473, 475 (1st Dept. 2019), quoting Hoag v. Chancellor, 246 A.D.2d 224,

230 (1st Dept. 1998) (internal citations omitted), citing CPC Intl. v. McKesson Corp., 70 N.Y.2d

268, 286 (1987)). "In order to survive a motion to dismiss a conspiracy cause of action, a plaintiff

tort"
must sufficiently allege an actionable underlying (Charney v. Sullivan & Cromwell LLP, 17

Misc. 3d 1105(A), *1105(A), 2007 N.Y. Misc. LEXIS 6591, ***8, 100625/2007 (Sup. Ct., N.Y.

Co. 2007), quoting Am. Preferred Prescription, Inc. v. Health Mgmt., Inc., 252 A.D.2d 414, 416

(1st Dept. 1998) (internal quotations and additional citation omitted)), as well as an overt act

parties'
performed in furtherance of common goal, and resulting injury (see id at ***7

("[O]rdinarily, a charge of conspiracy, it and of itself, does not give ground for civil relief, unless

followed by allegations of overt acts, and resulting injury"), quoting Keller v. Levy, 265 A.D. 723,

124 (1st Dept. 1943); see also Abacus Fed Sav. Bankv. Lim, 75 A.D.3d 472, 474 (1st Dept. 2010)).

As an initial matter, it is not seriously disputed that the Amended Complaint states

sufficiently against Defendants Charlet Sanieoff and Eliza Sabetfard the claim of intentional

infliction of emotional distress. Thus, in order to connect the actions of Abrahain Sanieoff, Leor

Sabetfard, and Matthew Sabetfard to the otherwise actionable tort of IIED committed by

Defendants C. Sanieoff and E. Sabetfard, Plaintiff must allege at least one overt act performed by

each defendant pursuant to and in the furtherance of the conspiracy to commit the underlying tort

of intentional infliction of emotional distress (see Franklin Mint, LLC v. Franklin Mint, Inc., 2011

N.Y. Misc. LEXIS 7011, *12, 2011 NY Slip Op 33973(U), **9, 652386/2010 (Sup. Ct., N.Y. Co.

pleaded"
2011) ("An overt act must be (Corris v. White, 29 A.D.2d 470 (4th Dept. 1968)), "and

conspiracy,"
must be an independent act that tends to carry out the quoting People v. Arroyo, 93

N.Y.2d 990, 992 (1999) (internal quotations and citations omitted))).

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Although Plaintiff must allege on the part of each defendant an overt act that tends to carry

out the agreement, contrary to the Court's determination, "plaintiff need not allege and prove that

tort"
each defendant committed every element of the underlying (Meisel v. Grunberg, 651 F. Supp.

2d 98, 119 (S.D.N.Y. 2009), citing Snyder v. Puente De Brooklyn Realty Corp., 297 A.D.2d 432,

435 (3d Dept. 2002); see also Errant Gene Therapeutics, 174 A.D.3d at 475 ("liability for fraud

may be premised on knowing participation in scheme to defraud, even if that participation does

fraud,"
not by itself suffice to constitute the quoting Kuo Feng Corp. v. Ma, 248 A.D.2d 168,

168069 (1st Dept. 1998), lv. denied 92 N.Y.2d 809 (1998))).

"Manifestly, it is entirely immaterial how or in what form the action of the conspirators

manifests itself if therefrom injury is inflicted and damages are sustained. Nor can it in the slightest

degree affect the cause of action whether there be a single act done pursuant to the conspiracy or

thousand"
a (Bedard v. La Bier, 20 Misc. 2d 614, 617 (Sup. Ct., Clinton Co. 1959)). The test is,

no matter what the nature of the act, whether damage and injury resulted to the party against whom

the conspiracy was leveled (id).

The Amended Complaint contains specific factual allegations that Leor and Matthew

Sabetfard intentionally participated with the other defendants in common scheme to cause Plaintiff

emotional distress, in revenge for her involvement with Abraham Sanieoff. This Court cited three

of those alleged instances (see Decision and Order [NYSCEF Doc. No. 150], at 5, entered

November 17, 2020). (See also, e.g., Errant Gene Therapeutics, 174 A.D.3d at 475 (finding

sufficient overt acts in fraud conspiracy where defendant Bluebird attended secret meetings with

defendant Sloan-Kettering around the time when Sloan-Kettering hired a new CEO who had

business ties to Bluebird to discuss surreptitiously obtaining plaintiff's research for Bluebird's use,

and for Sloan-Kettering's use after plaintiff refused to sell it to Bluebird).) Plaintiff also

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defendants'
sufficiently has alleged that she has suffered the injuries intended by conduct (see Am.

Compl. [NYSCEF Doc. No. 83], ¶ 77, filed February 6, 2020).

co-conspirators'
In any event, the liability of an individual defendant "as a conspirator for

wrongful acts 'does not necessarily depend upon his active participation in the particular overt

acts'" Handel-
(Errant Gene Therapeutics, 174 A.D.2d at 475, quoting Nederlandsche

MaatschappijN.V v.Schreiber, 17 A.D.2d 783, 783 (1st Dept. 1962);seealsoHermanv.Wesgate,

94 A.D.2d 938, 939 (4th Dept. 1983) (holding that the liability of an individual defendant does not

depend on whether his conduct actually resulted in injury; "participation in the concerted activity

injury"
is equivalent to participation in the accident resulting in (citation omitted)); Ginarte

Gallardo Gonzalez & Winograd, LLP v. Schwitzer, 2020 N.Y. Misc. LEXIS 9776, *11,

159991/2018, 2020 NY Slip Op 33770(U), **8 (Sup. Ct., N.Y. County 2020)).

Moreover, it was entirely inappropriate, at this pre-discovery stage, for the Court to dismiss

the brothers, given the specific and non-conclusory allegations of their participation, because

Plaintiff lacks the very discovery materials which would illuminate the true scope of their

involvement and their attendant states of mind (see Cohen Bros. Reality Corp. v. Mapes, 181

A.D.3d 401, 404 (1st Dept. 2020)).

Thus, the Court improperly dismissed Leor and Matthew Sabetfard for the reason that the

allegations against them alone do not give rise to a claim of IIED.

CONCLUSION

For the foregoing reasons, Plaintiff respectfully requests that the Court grant the instant

Defendants'
motion for leave to reargue Individual motion to dismiss the Amended Complaint

pursuant to CPLR 3211(a)(7) (motion sequence 007), and in the event such leave it granted, and

upon such reargument, denying motion sequence 007 and reinstating under a conspiracy theory of

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liability against Abraham Sanieoff, Leor Sabetfard, and Matthew Sabetfard, Count One of the

Amended Complaint, alleging intentional infliction of emotional distress, and reinstating also

under a conspiracy theory of liability, against Abraham Sanieoff, Leor Sabetfard, Matthew

Sabetfard, and Defendant Charlet Sanieoff, Count Five of the Amended Complaint, alleging

tortious interference of prospective economic advantage; and any other relief this Court deems just

and proper.

DELINCE LAW PLLC

DATED: December 17, 2020 299 Broadway, Suite 1310
New York, New York New York, NY 10007
Tel. (212) 382 3544
Attorneys for Plaintiff

By: s/ Alyw Feldaum.

Alyssa Feldman, Esq.
J. Patrick DeLince, Esq.

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