Ave. Capital Group, LLC v. Strum (2026)

Case details
Full caption
New York County AVENUE CAPITAL GROUP, LLC v. Gina STRUM
Country
United States
Jurisdiction
New York (NY)
Court
New York Court of Appeals
Decided
2026
Disposition
Motion Granted
Panel
Hon; Goetz (Justice)
Ave. Capital Group, LLC v. Strum, 2026 WL 413168 (2026) WESTLAW   © 2026 Thomson Reuters. No claim to original U.S. Government Works.12026 WL 413168 (N.Y.Sup.), 2026 N.Y. Slip Op. 30485(U) (Trial Order)Supreme Court of New York.New York County**1 AVENUE CAPITAL GROUP, LLC,Avenue CapitalManagement II, L.P., Marc Lasry, Sonia Gardner, Plaintiffs,v.Gina STRUM, Defendant.No. 159753/2024.February 9, 2026.*1 Part 47Motion Date 05/06/2025Motion Seq. No. 005Editor's Note: This document contains discussion of unverified citations, likely generatedby AI tools used by a party or counsel. These citations are not attributable to the Court. Theunverified citations have been preserved as part of the official record, but links are unavailable.Decision + Order on MotionPresent: Hon. Paul A. Goetz, Justice.The following e-filed documents, listed by NYSCEF document number (Motion 005) 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63,64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80, 83, 84, 85, 153 were read on this motion to/for DISMISS.Upon the foregoing documents, it isORDERED that the part of defendant's motion to dismiss pursuant to CPLR § 3211(a)(7) for failure to state a claim fordefamation is denied while defendant argues that the complaint fails to include: 1) the specific words used, 2) the identity ofthe individual(s) to whom the defamatory comments were made, 3) an allegation of actual malice, 4) an allegation of fault orspecial harm, 5) specific facts as opposed to non-actionable opinions, 6) untruths as opposed to substantially true statements,and 7) defamatory statements since having cancer is does not constitute libel per se; the complaint together with the affirmations(NYSCEF Doc Nos 65, 66, 68 & 73; Thomas v Thomas, 70 AD3d 588, 592-592 [1st Dept 2010] [noting that a plaintiff maysubmit affidavits in opposition to a motion to dismiss]): 1) states the particular words (CPLR § 3016[a]) allegedly used bydefendant that plaintiff Avenue Capital Group, LLC (Avenue) was lying to investors and consultants by not disclosing plaintiffSonia Gardner's health issues and that as a result of Gardner's health issues she was unable to perform her duties at Avenue since**2 May 2022, 2) identifies David Jeffery at StepStone Group and Mercer as to whom the comments were made (Lasry affm 47, NYSCEF Doc No 68), 3) do not need to plead actual malice because Gardner is not a general-purpose public figure (Gottwalv Sebert, 193 AD3d 573, 576 [1st Dept 2021] [defining general-purpose public figure as someone who is a celebrity or householdname]) nor is she a limited-purpose public figure (id., defining a limited-purpose public figure as someone who has voluntarilyinjected themselves or is drawn into a public controversy to have influence on it]) 4) does not need to allege special harmbecause defendant's alleged statements constitute defamation per se since defendant's alleged statements tend to injure plaintiffs'business (Keeling v Salvo, 188 AD3d 463, 464 [1st Dept 2020] [holding defamation per se allegations in the complaint sufficientsince the alleged statements tended to injure plaintiff in her profession or trade]), 6) include defendant's alleged statements andthey are not non-actionable opinion but rather specific facts that can be proven false (Davis v Boeheim, 24 NY3d 262, 268
Ave. Capital Group, LLC v. Strum, 2026 WL 413168 (2026) WESTLAW   © 2026 Thomson Reuters. No claim to original U.S. Government Works.2[2014] [observing only statements alleging facts can be the subject of a defamation claim]), and can be demonstrated to be falseespecially in light of the affirmation from Gardner's treating physician, Dr. Raja M. Flores (NYSCEF Doc No 65), and 7) includean allegation that defendant revealed Gardner's cancer diagnosis and while standing alone does not constitute libel per se (Samv Enquirer/Star Group, 223 AD2d 360 [1st Dept 1996]) according to the complaint and supporting affidavits Gardner's cancerdiagnosis is merely the basis upon which defendant grounded her allegation that Gardner, the President, Managing Partner, andCo-founder of Avenue, was unable to perform her duties since May 2022; and it is further*2 ORDERED that the part of defendant's motion to dismiss pursuant to CPLR § 3211(g) because New York's anti-SLAPP(strategic lawsuits against public participation) law (Civil Rights Law § 76-a) applies is denied since Strum's alleged statementswere made to a limited **3 private audience, investors and consultants StepStone Group and Mercer (Lasry affm ¶¶ 46-47,NYSCEF Doc No 68), and not made in a forum open to the public and consequently concerning matters of a purely privatenot public nature (cf Aristocrat Plastic Surgery, P.C. v Silva, 206 AD3d 26 [1st Dept 2022] [holding public posts of defendant'splastic surgery experience with plaintiff on two internet platforms constitute a public forum and concern]; Nelson v Ardrey, 231AD3d 179, 183 [2nd Dept 2024] [holding allegations of plaintiff's alleged criminal activity made on plaintiff's limited personalFacebook profile were of a private not public nature and were not made in a public forum]; Miller v Appadurai, 2022 NY MiscLEXIS 7864 [SC NY Co 2022] [holding letter addressed to Dean and Provost not made in public forum and not of a publicconcern]); and it is furtherORDERED that defendant's motion to dismiss is granted solely to the extent that it seeks to dismiss plaintiff's third cause ofaction for “cease and desist” because cease and desist is a form of relief and not an independent cause of action capable offorming the basis of a claim (accord Revitalizing Auto Cmtys. Envtl. Response Trust v Nat'l Grid USA, 10 F 4th 87, 106 [2nd Cir2021] [observing “a claim for declaratory relief is not an independent cause of action” but rather “a remedy for [] other claims”];Men Women N.Y. Model Management, Inc. v Elite Model Management-New York LLC, 183 AD3d 501, 502 [1st Dept 2022][observing “[t]here is no independent cause of action for injunctive relief”]; Talking Capital LLC v Omanoff, 169 AD3d 423,424 [1st Dept 2019] [observing injunctive relief “is a remedy for an underlying wrong, not a cause of action”]); and it is furtherORDERED that **4 defendant's counsel is directed to show cause on February 19, 2026 at 2:15 p.m. why he should not besanctioned for including two non-existent cases, Kennedy v Kennedy, 192 AD3d 111 (1st Dept 2020) and Risucci v Homayoon,122 AD3d 700 (2nd Dept 2014)1 in his memorandum of law (NYSCEF Doc No 102 pg 9,) in support of defendant's motion(MS #8) for leave to supplement defendant's papers on the instant motion.2/9/2026DATE<<signature>>PAUL A. GOETZ, J.S.C.Footnotes1Plaintiffs note that although they were able to find Risucci v Homayoon, 122 AD2d 260 (2d Dept 1986), it does not have the languagequoted in defendant's brief in support of MS #8.End of Document© 2026 Thomson Reuters. No claim to original U.S. Government Works.
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