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Decided on November 23, 2011
Supreme Court, New York County

107129/2011

COUNSEL FOR PLAINTIFF
MATTHEW PRINCE:
NAPOLI BERN RIPKA SHKOLNIK LLP
By Adam J. Gana, Esq.
350 Fifth Ave.
New York, NY 10118

phone: (212) 267-3700 COUNSEL FOR DEFENDANTS FOX TELEVISION: Hogan Lovells US LLP By Slade R. Metcalf, Esq. 875 Third Ave. New York, NY 10022 phone: (212) 918-3000 Carol R. Edmead, J.
MEMORANDUM DECISION
In this defamation action, defendants Fox Television Stations, Inc., ("Fox") and Arnold Diaz ("Diaz") (collectively, "defendants") move to dismiss the Amended Complaint (the "complaint") of the plaintiff Matthew Prince individually ("Prince") and on behalf of D'Lites L.A.M.D. B.H. Inc. ("D'Lites LAMD") (collectively, "plaintiffs") pursuant to CPLR 3211 (a)(1) [*2](based on
documentary evidence) and (a)(7) (failure to state a claim).[FN1]
Factual Background
This action stems from a May 12, 2011, television broadcast of the video clip within the popular Fox TV consumer news segment "Shame on You" about a misleading advertising of the "D'Lites" ice cream as a healthier alternative to traditional ice cream.
Non-party D'Lites Emporium, Inc., ("D'Lites Emporium") is a Florida-based company which advertises its ice cream as low in sodium, sugar, fat, carbohydrates and cholesterol (see Complaint,

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