False Statements That Manager Was Taking Kickbacks Constituted Defamation Per Se

Posted: July 25, 2025 / Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. Turner / Category Defamation

False Statements That Manager Was Taking Kickbacks Constituted Defamation Per Se

On June 18, 2025, Justice Andrew Borrok of the New York County Commercial Division issued a post-trial decision in IGC 444 Park LLC v. 444 PAS Restaurant Associates LLC, Index No. 656304/2020, holding one of the defendants, David Moinian, liable for defamation based on a statement that defendant made accusing plaintiff, the food-and-beverage manager of the Mondrian Park Avenue Hotel, of taking kickbacks, explaining:

The statements made by Mr. Moinan in his email, dated July 13, 2020 (PX I), were made because, as Mr. Moinan himself testified, he was angry. The statements were not made for a legitimate purpose and were made in response to a simple request for monies owed. Mr. Moinan' s testimony that he merely intended to inspire an investigation was simply not credible. and he adduced no documents in support of his assertion. Mr. Moinan did not make the statements to his attorneys, nor did he exclude third parties from the communications, nor did he indicate to Mr. Brosi that an investigation was being initiated due to billing issues. He did none of that. Instead, he just acted out and in a manner designed to embarrass and besmirch the reputation of GC 444 and Mr. Brosi.

For completeness the Court notes that Mr. Moinan testified that he knew and understood the restaurant industry. He understood the practice of billing holds and it simply was not credible than he relied on statements by his manager that IGC 444 was stealing without any inquiry whatsoever and would simply rely on others to investigate this claim which he acknowledged he never even followed up on. Indeed. the record is entirely bereft of any evidence of either an investigation conducted on Mr. Moinan' s part, or any financial wrongdoing committed on IGC 444's part.

As such, the statements that Mr. Moinan published to IGC 444's competitors and lenders were angry and retaliatory and at bottom nothing more than an attempt to put off demand for amounts due by attempting to embarrass IGC 444 with scurrilous remarks to others.

Mr. Moinan's conduct in adding additional third-party recipients to the email chain, accusing Mr. Brosi and IGC 444 of committing a serious crime, and making disparaging remarks that tend to injure another in his business and profession, constituted defamation per se.

Given the timing and manner in which Mr. Moinan made the statements at issue, and notwithstanding IGC 444's request for $500,000.00 in actual damages and $250,000.00 in punitive damages, an award of $25,000.00 in actual damages and $1.00 in punitive damages is appropriate as against Mr. Moinan in his personal capacity.

Contact the Commercial Division Blog Committee at commercialdivisionblog@schlamstone.com if you or a client have questions concerning a potential defamation claim.