Prosper

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

Carmen Prosper,

Plaintiff,

-against-

BronxWorks, Inc. et al.,

Defendants.

25-cv-4956 (AS)

———————————————————–

Najee Brown,

OPINION AND ORDER

Counter-Plaintiff,

-against-

Carmen Prosper,

Counter-Defendant.

ARUN SUBRAMANIAN, United States District Judge:

Plaintiff Carmen Prosper sued her former employer and two of her former colleagues after her

employment was terminated. One of the defendants, Najee Brown, filed counterclaims against

Prosper. Prosper moved to dismiss the counterclaims. For the following reasons, Prosper’s motion

is GRANTED IN PART and DENIED IN PART.

BACKGROUND

For the purposes of the motion to dismiss only, the Court assumes the truth of all facts Brown

has pleaded in his counterclaims.

Najee Brown was hired by BronxWorks (“BW”) in August 2018. Dkt. 25 ¶ 12.1 He met Car-

men Prosper in March 2024, when she started working at BW. Id. ¶ 18. Brown and Prosper com-

municated frequently and sent text messages to one another. Id. ¶ 19. Prosper was listed in Brown’s

phone as “Cam SOS.” Id.

After Brown found other employment that he thought would be a better opportunity, he gave

two weeks’ notice on August 9, 2024 to BW that he planned to resign. Id. ¶¶ 23–24. Brown also

decided that he wanted to seek a formal relationship with Prosper. Id. ¶ 25.

1 All paragraph numbers in Dkt. 25 refer to the paragraphs in the counterclaims (starting on page 23), not

to paragraphs in the answer section of the document.

On August 13, 2024, Brown and Prosper exchanged messages where they stated their attraction

to one another. Id. ¶ 28. Both expressed a desire to stay in touch. Id. Prosper said that when she

saw Brown outside of work she would “jump[] on” him and “[c]ross[] [her] legs over” Brown. Id.

¶ 30.

The following day, Prosper visited Brown in his office. Brown says they merely exchanged

pleasantries, spoke about the future, and hugged (with Brown giving Prosper a kiss on the fore-

head). Id. ¶ 40. He says that Prosper told him in a subsequent text message that Brown “could of

just kissed” her. Id.

A week later, Prosper’s tone changed. She started to claim that Brown “categorized [her] as a

hoe” and during the meeting in his office “took [his] penis out on [her] and said ‘suck this dick.’”

Id. ¶ 51. Brown believes that Prosper believed that she was going to be terminated and made the

allegations “as [a] safety net.” Id. ¶ 64.

Prosper made statements to three BW employees, including Brown’s supervisor, about the

alleged incident. Id. ¶ 71. She accused him of being “a womanizer, abusive, [a] sexual deviant and

a sexual predator.” Id. She also filed a police report. Id. Brown spoke to the three employees and

police officer to show them their text messages, which led Brown’s supervisor to deem Prosper’s

statements a “setup” and led the police to close the case. Id.

Prosper filed this lawsuit against BW, Brown, and another BW employee on June 12, 2025.

Dkt. 1. She recounts the incident in Brown’s office, alleging that he locked the door and closed the

blinds before exposing himself. Id. ¶¶ 24–28. She alleged that when she reported the incident, she

was told not to report to work, had her pay suspended, and was pressured to transfer to a position

with less pay. Id. ¶ 31. She alleges she was ultimately terminated in November 2024. Id. ¶ 40. She

alleged discrimination and retaliation in violation of state and federal law, as well as assault. Id.

¶¶ 41–119.

Brown filed counterclaims against Prosper. Dkt. 25. He alleges defamation, tortious interfer-

ence with prospective business relations, intentional infliction of emotional distress, abuse of pro-

cess, injurious falsehood, and malicious prosecution. Id. ¶¶ 98–149.

Prosper moved to dismiss Brown’s counterclaims. Dkt. 26. She argues that the Court lacks

subject-matter jurisdiction over the counterclaims, that it should decline to exercise supplemental

jurisdiction over the counterclaims, and that they fail to state a claim. Dkt. 27 at 3–10.

LEGAL STANDARDS

“A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when

[a] district court lacks the statutory or constitutional power to adjudicate it.” Makarova v. United

States, 201 F.3d 110, 113 (2d Cir. 2000). “The task of the district court is to determine whether

the Pleading alleges facts that affirmatively and plausibly suggest that the plaintiff has standing to

sue.” Carter v. HealthPort Techs., LLC, 822 F.3d 47, 56 (2d Cir. 2016) (cleaned up). “In resolving

a Rule 12(b)(1) motion, a district court may refer to evidence outside the pleadings.” Est. of Close

v. Cigna Health & Life Ins. Corp., 2023 WL 8846562, at *2 (S.D.N.Y. Dec. 21, 2023).

To survive a motion to dismiss for failure to state a claim, a complaint “must contain sufficient

factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Melendez v.

Sirius XM Radio, Inc., 50 F.4th 294, 298–99 (2d Cir. 2022) (quoting Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009)). “A claim is plausible on its face ‘when the plaintiff pleads factual content that

allows the court to draw the reasonable inference that the defendant is liable for the misconduct

alleged.’” Id. at 299 (quoting Iqbal, 556 U.S. at 678). When evaluating whether a complaint clears

this bar, the Court must “accept[] all factual allegations in the complaint as true[] and draw[] all

reasonable inferences in the plaintiff’s favor.” Vaughn v. Phoenix House N.Y. Inc., 957 F.3d 141,

145 (2d Cir. 2020) (quoting Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002)).

DISCUSSION

I. The Court has jurisdiction

The Court first addresses Prosper’s challenge to subject-matter jurisdiction over the counter-

claims.

A. Regardless of whether the counterclaims are compulsory or permissive, the Court

has supplemental jurisdiction over them

A counterclaim may either be compulsory or permissive. The question is relevant to jurisdic-

tion because “[c]ompulsory counterclaims do not require an independent grant of jurisdiction.”

Est. of Close v. Cigna Health & Life Ins. Corp., 2023 WL 8846562, at *2 n.1 (S.D.N.Y. Dec. 21,

2023). On the other hand, permissive counterclaims do require an independent jurisdictional

source. Jones v. Ford Motor Credit Co., 358 F.3d 205, 210–13 (2d Cir. 2004). With exceptions

not relevant here, a counterclaim is compulsory where it “arises out of the transaction or occur-

rence that is the subject matter of the [plaintiff’s] claim.” Fed. R. Civ. P. 13(a)(1)(A). All other

counterclaims are permissive. Fed. R. Civ. P. 13(b).

The parties dispute whether Brown’s counterclaims arise out of the same transaction or occur-

rence as Prosper’s claims. But the Court need not determine whether the counterclaims are com-

pulsory or permissive because jurisdiction would exist in either case. Although the parties are not

diverse and Brown’s claims do not raise a federal question, the Court has supplemental jurisdiction

over his claims.

District courts have “supplemental jurisdiction over all other claims that are so related to claims

in the action within such original jurisdiction that they form part of the same case or controversy

under Article III of the United States Constitution.” 28 U.S.C. § 1367(a). For Brown’s state-law

claims to form part of the same case or controversy as the underlying federal claims in Prosper’s

complaint, they “must derive from a common nucleus of operative fact.” United Mine Workers of

Am. v. Gibbs, 383 U.S. 715, 725 (1966).

That standard is met here. Both Prosper’s claims and Brown’s counterclaims turn on whose

account of the August 14, 2025 meeting is correct, so that meeting is the common nucleus of

operative fact. Indeed, the common nucleus of operative fact is even clearer in this case than it was

in Jones, where the Second Circuit held that the district court could exercise jurisdiction over the

counterclaims under Section 1367(a) because “[b]oth the ECOA claim and the debt collection

claims originate from the Plaintiffs’ decisions to purchase Ford cars.” 358 F.3d at 214. There, the

sources of proof would have been very different—the plaintiffs would be looking for evidence of

racial discrimination, while Ford Credit would be presenting evidence of unpaid balances on the

loans. By contrast, much of the evidence underlying both Prosper’s and Brown’s claims will relate

back to the alleged incident in Brown’s office. So if Section 1367(a) was satisfied in Jones, it

clearly is satisfied here.

Prosper’s arguments to the contrary are off base and unavailing. She analogizes to two cases,

Harris v. Steinem, 571 F.2d 119 (2d Cir. 1978), and Sanders v. New World Design Build, Inc.,

2020 WL 1957371 (S.D.N.Y. Apr. 23, 2020). But those cases speak to the distinct “transaction or

occurrence” test that applies to compulsory counterclaims, and which Jones makes clear is nar-

rower than the “common nucleus of operative fact” test. As discussed above, the latter test is sat-

isfied here.

Moreover, Steinem involved a different situation, where the plaintiff’s federal claim had been

dismissed, and the district court declined to exercise jurisdiction over the counterclaims under

Section 1367(c), a conclusion that the Second Circuit did not revisit. 572 F.2d at 122. For that

reason, in Steinem, there would only be jurisdiction over the counterclaims if they were compul-

sory and not permissive. Here, the plaintiff’s federal claim is still in the case, and as discussed

below, the Court does not decline the exercise of jurisdiction under Section 1367(c). As in Jones,

Section 1367 furnishes an independent basis of jurisdiction for Brown’s counterclaims.

B. The Court will exercise jurisdiction over the counterclaims

Even where the requirements of Section 1367(a) are satisfied, district courts “may decline to

exercise supplemental jurisdiction over a claim” in certain cases. 28 U.S.C. § 1367(c). “It is a

truism of federal civil procedure that in providing that a district court ‘may’ decline to exercise

such jurisdiction, § 1367(c) is permissive rather than mandatory.” Pension Ben. Guar. Corp. ex

rel. St. Vincent Cath. Med. Centers Ret. Plan v. Morgan Stanley Inv. Mgmt. Inc., 712 F.3d 705,

726 (2d Cir. 2013) (cleaned up). In short, even if the Section 1367(c) factors apply, the Court

retains the ability to exercise jurisdiction so long as the Section 1367(a) requirements are met.

Prosper suggests that three of the factors apply: that the counterclaims raise a “complex issue

of State law”; that they “substantially predominate[] over” the federal law claims; and that this is

an “exceptional circumstance[]” with “compelling reasons for declining jurisdiction.” 28 U.S.C.

§ 1367(c)(1)–(2), (4); see also Dkt. 27 at 5–6. None of those arguments is persuasive.

1. The counterclaims do not raise a complex issue of state law

Prosper’s sole argument that the counterclaims raise a complex issue of state law is that the

scope of “absolute and qualified privileges” in defamation are “nuanced” and therefore “best de-

cided by the state courts.” Dkt. 27 at 6 (citation omitted). Prosper does not develop the argument,

and the Court is unpersuaded.

While Prosper does raise privilege defenses to the defamation claims, those defenses are not

so complex to justify declining jurisdiction. Federal courts routinely address the scope of privilege

defenses to state-law claims of defamation, as this Court has previously done.

2. The state claims do not substantially predominate

Prosper similarly argues that the state-law claims would substantially predominate because the

“scope of proof” on the counterclaims “would dwarf the resources required for the underlying

federal claim.” Id.

Prosper does not cite any authority or evidence for why that would be the case, nor does it

follow from the nature of the asserted claims. The evidence required for a discrimination claim

under Title VII is in many ways more complex than for a common-law defamation claim, and here,

the facts underlying both Prosper’s and Brown’s claims overlap in several respects. This argument

fails.

3. There are no compelling reasons to decline jurisdiction

Prosper also cites the final Section 1367(c) factor, that there are “compelling reasons for de-

clining jurisdiction.” 28 U.S.C. § 1367(c)(4). She argues that allowing a counterclaim in a discrim-

ination case would have a “chilling effect on potential plaintiffs.” Dkt. 27 at 6.

This argument fails. Prosper’s argument would lead to a blanket presumption against counter-

claims in any discrimination case. The Second Circuit, however, has expressed “caution . . . con-

cerning use of subsection 1367(c)(4).” Jones, 358 F.3d at 215. Rather than endorsing Prosper’s

blanket rule, that court—in a case with counterclaims filed against plaintiffs who alleged discrim-

ination—said that there must be “truly compelling circumstances that militate against exercising

jurisdiction.” Id.

While the Court recognizes that the possibility of any sort of counterclaim can discourage a

plaintiff from filing suit, Prosper does not explain why the counterclaims in this case create such

a strong disincentive to rise to the level of a “truly compelling circumstance[].” Id. And there are

good reasons to think that this is not what Congress had in mind when it included that exception.

For one, there would seem to be nothing stopping Brown from immediately refiling the identical

claims in state court, so a plaintiff in Prosper’s shoes would not be immune from any counter-

claims. If anything, any “chill” would be worse, as Prosper would be faced with the prospect of

pursuing her case in federal court, while defending against Brown’s claims in a state forum. And

second, it would lead to a peculiar outcome where the Court would be concerned about potential

“chilling effect[s]” only where the parties are not diverse. If Brown happened to live across the

Hudson River in New Jersey, the Court would be required to entertain any counterclaims so long

as he sought more than $75,000 in total. See 28 U.S.C. § 1332(a)(1); see also Colorado River

Water Conservation Dist. v. United States, 424 U.S. 800, 817 (1976) (noting that federal courts

have a “virtually unflagging obligation . . . to exercise the jurisdiction given [to] them”). Thus, the

Court concludes that there are no compelling circumstances in this case justifying declining juris-

diction.

II. The defamation claims can proceed

Turning to the merits, Brown’s first three counterclaims sound in defamation (libel, libel per

se, and slander). Dkt. 25 ¶¶ 98–114. The claims are rooted in Prosper’s statements and writings to

three BW employees as well as to the police. Id. Prosper does not challenge the pleading of the

claims’ elements, but rather argues that they are barred by absolute or qualified privilege under

New York law.

A. No absolute privilege applies

Prosper argues that her reports to the police are protected by absolute privilege and therefore

cannot give rise to a defamation claim. Dkt. 27 at 7. The Court disagrees.

In support of her argument for absolute privilege, Prosper cites Front, Inc. v. Khalil, 24 N.Y.3d

713 (2015), which states that “absolute immunity from liability for defamation exists for oral or

written statements made by attorneys in connection with a proceeding before a court when such

words and writings are material and pertinent to the questions involved.” Id. at 718 (quotation

omitted). But that does not extend to this case. For one, it’s not clear that the absolute privilege

that the New York Court of Appeals laid out in Front applies to a non-attorney statement. But even

if it does, the counterclaims here do not stem from any statements that Prosper made in litigation;

rather, they stem from statements she made to the police where no criminal case was filed.

Resisting this conclusion, Prosper points to the fact that Brown’s counterclaims labeled her

statements to the police as being in a “supporting deposition.” Dkt. 27 at 7. She points to New

York criminal procedure rules that label a “supporting deposition” to be a formal instrument that

is intended to support a prosecution. Id. But even if Brown used the phrase “supporting deposition”

in the same sense as the New York procedural rules—which is not immediately apparent to the

Court—absolute privilege would not apply. Front, Prosper’s sole authority for absolute privilege,

explicitly said that statements made in advance of litigation are entitled only to qualified privilege,

not absolute privilege. 24 N.Y.3d at 719–20. And the New York Court of Appeals has noted that

communications with prosecutors prior to the filing of criminal charges are protected only by qual-

ified privilege. Toker v. Pollak, 44 N.Y.2d 211, 221 (1978). Thus, absolute privilege does not

apply.

B. The Court cannot conclude that Brown’s claims would be barred by qualified

privilege on the face of the counterclaims

Prosper also argues that the defamation claims fail due to qualified privilege.2 “[Q]ualified

privilege extends to a communication made by one person to another upon a subject in which both

have an interest.” Liberman v. Gelstein, 80 N.Y.2d 429, 437 (1992) (quotation and punctuation

2 Prosper’s briefing only argues that her communications with the BW employees fall within qualified

privilege. She does not argue in the alternative that it would cover her communications with the police if

absolute privilege does not apply. Nonetheless, the Court construes her briefing as arguing that qualified

privilege applies to all of Brown’s counterclaims.

omitted). “The shield provided by a qualified privilege may be dissolved if plaintiff can demon-

strate that defendant spoke with ‘malice.’” Id. “Malice” can either be (1) common-law malice

(spite or ill will) or (2) “actual malice” under New York Times Co. v. Sullivan, 376 U.S. 254 (1964).

Liberman, 80 N.Y.2d at 437–38. Actual malice requires that the “plaintiff must demonstrate that

the statements were made with a high degree of awareness of their probable falsity.” Id. at 438

(cleaned up).

Brown does not appear to contest that qualified privilege might apply to his defamation claims.

Instead, he alleges that his counterclaims plausibly allege malice to overcome the privilege. Brown

alleged that he gave Prosper only a hug and a kiss on the forehead. Dkt. 25 ¶ 40. If true, that is

sufficient to infer that Prosper knew that her allegations that Brown had exposed himself were

false (since she was in the room), which would satisfy actual malice. See Sullivan, 376 U.S. at 280

(“knowledge that [a statement] was false” is sufficient to show actual malice). As the New York

Court of Appeals has made clear that actual malice can defeat qualified privilege, Liberman, 80

N.Y. 2d at 437–38, that is sufficient at the pleading stage.

Prosper’s arguments to the contrary are unavailing. She focuses on arguments for common-

law malice and argues that Brown’s allegations of her state of mind toward him are conclusory

and insufficient. But even if true, actual malice focuses on her “attitude toward the truth” instead

of her attitude toward Brown. Konikoff v. Prudential Ins. Co. of Am., 234 F.3d 92, 99 (2d Cir.

2000). Brown’s defamation claims can therefore proceed.

III. The tortious interference claim is dismissed

Prosper next seeks dismissal of the tortious interference claim. “Under New York law, to state

a claim for tortious interference with prospective economic advantage, the plaintiff must allege

that (1) it had a business relationship with a third party; (2) the defendant knew of that relationship

and intentionally interfered with it; (3) the defendant acted solely out of malice, or used dishonest,

unfair, or improper means; and (4) the defendant’s interference caused injury to the relationship.”

Kirch v. Liberty Media Corp., 449 F.3d 388, 400 (2d Cir. 2006) (quotation omitted).

Brown’s counterclaim alleges that Prosper “intentionally interfered with Brown’s prospective

business relations by making false and defamatory statements about him to his supervisors and

potentially to future employers.” Dkt. 25 ¶ 117. But vague allegations about interference with a

potential relationship are insufficient. “New York courts have placed some limits on what consti-

tutes ‘business relations’ by rejecting, for example, a claim containing ‘only a general allegation

of interference with customers without any sufficiently particular allegation of interference with a

specific contract or business relationship.’” 16 Casa Duse, LLC v. Merkin, 791 F.3d 247, 262 (2d

Cir. 2015) (quoting McGill v. Parker, 179 A.D.2d 98, 105 (1st Dep’t 1992)).

In his opposition, Brown recasts the claim as one covering interference with his former co-

workers who could serve as references for a future job. Dkt. 29 at 18–19. Setting aside the fact that

that is an unnatural reading of the complaint, Brown does not point to any authority that suggests

that a relationship with a former co-worker who could be a future reference for an as-yet-undeter-

mined job could be a “business relation” that would qualify. This claim is dismissed.

IV. The injurious falsehood claim is dismissed

Prosper next challenges Brown’s counterclaim for injurious falsehood. Prosper challenges only

two aspects of the claim: first, she argues that the claim is duplicative of Brown’s defamation

claims, and second, that Brown failed to plead special damages.

A. Brown may plead alternative claims

As to her argument that the claim is duplicative, Prosper cites Hengjun Chao v. Mount Sinai

Hosp., 476 F. App’x 892, 895 (2d Cir. 2012). But in that case, the Second Circuit had already

affirmed summary judgment on the defamation claims based on qualified privilege. Id. at 894–95.

Since the facts for both the defamation and injurious falsehood claims were identical, the court

held that they fell together. Id. at 895. By contrast, the Court here allows the defamation claim to

proceed, so Hengjun would not apply. Instead, while a “plaintiff may not plead the same claim

more than once, which would constitute a duplicative claim, [he] may plead claims that provide

alternative bases for relief.” In re Skat Tax Refund Scheme Litig., 356 F. Supp. 3d 300, 325

(S.D.N.Y. 2019). And since it is possible that one claim could fail while the other survives, they

represent alternative bases for relief.

B. Brown has not pleaded special damages

“Special damages are a necessary element of the tort of ‘injurious falsehood.’” Cromarty v.

Prentice-Hall, 72 A.D.2d 782, 783 (2d Dep’t 1979). “Special damages consist of the loss of some-

thing having economic or pecuniary value which must flow directly from the injury to reputation

caused by the defamation.” Celle v. Filipino Rep. Enters. Inc., 209 F.3d 163, 179 (2d Cir. 2000)

(cleaned up).

Brown’s allegations of special damages are insufficient. He alleges that Prosper’s accusations

have made it “difficult to secure future employment commensurate with his qualifications and

experience” and that “[p]rospective employers did not seek out Mr. Brown, when they heard these

false and mistruth statements.” Dkt. 25 ¶¶ 94, 139. He alleges that has caused him “tens of thou-

sands of dollars in damages.” Id. ¶ 94. But that’s not enough. “A pleading of special damages must

be ‘specific,’ and ‘round amounts’ are insufficient.” Joyce v. Thompson Wigdor & Gilly LLP, 2008

WL 2329227, at *12 n.3 (S.D.N.Y. June 3, 2008) (citation omitted). Brown must identify specific

opportunities that he was not able to pursue because of Prosper’s alleged injurious falsehood and

be able to quantify them. While some amount of estimation may be necessary at the pleading stage,

Brown cannot rely on nonspecific allegations of unnamed prospective employers.

To the extent that Brown can point to specific employers who decided not to hire him because

of Prosper’s alleged statements, he may amend his counterclaim.

V. The intentional infliction of emotional distress claim is dismissed

Prosper next argues that Brown’s intentional infliction of emotional distress (IIED) claim

should be dismissed since the alleged conduct is not sufficiently “extreme and outrageous.” The

Court agrees.

“Under New York law, a claim for intentional infliction of emotional distress requires a show-

ing of (1) extreme and outrageous conduct; (2) intent to cause, or reckless disregard of a substantial

probability of causing, severe emotional distress; (3) a causal connection between the conduct and

the injury; and (4) severe emotional distress.” Stuto v. Fleishman, 164 F.3d 820, 827 (2d Cir. 1999).

IIED “remains a highly disfavored tort under New York law” that is “to be invoked only as a last

resort.” Turley v. ISG Lackawanna, Inc., 774 F.3d 140, 158 (2d Cir. 2014) (cleaned up).

New York courts have held that IIED claims are typically barred where they overlap with a

claim for defamation. See Herlihy v. Metro. Museum of Art, 214 A.D.2d 250, 263 (1st Dep’t 1995).

And although Brown points to a single case where the Second Department allowed a claim that a

defendant who “threatened to make public the allegedly false allegation that the plaintiffs subjected

her to sexual harassment and sexual assault” and “filed a false complaint with the New York City

Police Department” to proceed, Nigro v. Pickett, 39 A.D.3d 720, 721–22 (2d Dep’t 2007), the

Court believes that the New York Court of Appeals would not permit a IIED claim in a case like

this. See Fischer v. Maloney, 43 N.Y.2d 553, 557–58 (1978) (questioning “whether the doctrine

of liability for intentional infliction of extreme emotional distress should be applicable where the

conduct complained of falls well within the ambit of other traditional tort liability”). The IIED

claim is therefore dismissed.

VI. The abuse of process claim is dismissed

Prosper next argues that Brown fails to state a claim for abuse of process. The Court agrees.

“In New York, a malicious abuse-of-process claim lies against a defendant who (1) employs

regularly issued legal process to compel performance or forbearance of some act (2) with intent to

do harm without excuse or justification, and (3) in order to obtain a collateral objective that is

outside the legitimate ends of the process.” Savino v. City of New York, 331 F.3d 63, 76 (2d Cir.

2003) (cleaned up). The “legal process” element requires a court to issue a “direction or demand

that the person to whom it is directed shall perform or refrain from the doing of some prescribed

act.” Stevens & Co. LLC v. Espat, 2025 WL 950989, at *11 (S.D.N.Y. Mar. 28, 2025) (quoting

Williams v. Williams, 246 N.E.2d 333, 335 (N.Y. 1969)).

Brown’s counterclaims do not allege any “legal process” that was issued toward him. Although

Prosper may have filed a police report, Brown does not allege that the report resulted in any court

directive or demand, let alone one that required him to perform any action or refrain from doing

anything. This claim is dismissed.

VII. The malicious prosecution claim is dismissed

Prosper finally argues that Brown fails to state a claim for malicious prosecution. The Court

agrees here, too.

“To establish a malicious prosecution claim under New York law, a plaintiff must prove (1)

the initiation or continuation of a criminal proceeding against plaintiff; (2) termination of the pro-

ceeding in plaintiff’s favor; (3) lack of probable cause for commencing the proceeding; and (4)

actual malice as a motivation for defendant’s actions.” Stampf v. Long Island R. Co., 761 F.3d 192,

198 (2d Cir. 2014) (quoting Manganiello v. City of New York, 612 F.3d 149, 161 (2d Cir. 2010)).

Here, Brown has not shown “the initiation or continuation of a criminal proceeding.” Although

he argues that Prosper’s filing of the police report is sufficient to constitute the initiation or con-

tinuation of a criminal proceeding, that is insufficient for malicious prosecution. Instead, “[s]uch

a claim may arise only after an arraignment or indictment or some other ‘evaluation by a neutral

body that the charges [were] warranted.’” Stile v. City of New York, 172 A.D.2d 743, 744 (2d Dep’t

1991) (quoting Broughton v. City of New York, 37 N.Y.2d 451, 459 (1975)). Since Brown does

not allege any such proceeding occurred, the claim for malicious prosecution is dismissed.

CONCLUSION

Prosper’s motion to dismiss the counterclaims is GRANTED IN PART and DENIED IN

PART. The defamation claims may proceed; the remaining claims are DISMISSED. Brown may

file an amended counterclaim complaint within 14 days of this order if he wishes to replead any

additional claims beyond defamation. But he may prefer to focus his time and resources on the

defamation claims at the core of his case, rather than trying to recast defamation into different, and

more tenuous, causes of action.

The Clerk of Court is respectfully directed to terminate Dkt. 26.

SO ORDERED.

Dated: May 20, 2026

New York, New York

ARUN SUBRAMANIAN

United States District Judge

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