Cole v. Iconix International Inc. — Entry #35

Case 1:25-cv-09357-MKV   Document 35    Filed 05/11/26    Page 1 of 15


UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
------------------------------------x
                                    :
                                    :      Index No. 1:25-cv-09357-MKV
 NEIL COLE,                         :
                                    :      Oral Argument Requested
                   Plaintiff,       :
v.                                  :
                                    :
ICONIX INTERNATIONAL INC. f/k/a/    :
ICONIX BRAND GROUP, INC., and       :
SETH HOROWITZ,                      :
                                    :
                   Defendants.      :
                                    :
                                    :
------------------------------------x


                 DEFENDANT SETH HOROWITZ’S REPLY
               MEMORANDUM OF LAW IN SUPPOFT OF HIS
          MOTION TO DISMISS PLAINTIFF’S AMENDED COMPLAINT


                                 LAW OFFICE OF DAVID R. LURIE, PLLC
                                 194 President Street
                                 Brooklyn, NY 11231
                                 347-651-0194

                                  Attorneys for Defendant Seth Horowitz


          Case 1:25-cv-09357-MKV                          Document 35                 Filed 05/11/26               Page 2 of 15


                                                            Table of Contents

Table of Authorities ................................................................................................................ i

Argument ................................................................................................................................ 1


           I.         Cole’s initiation allegations are implausible and threadbare .......................... 1

           II.        The undisputed facts establish multiple independent
                      bases for presuming probable cause that Cole cannot rebut ........................... 3

                      A. Cole’s second trial conviction established a presumption of
                         probable cause. .......................................................................................... 4

                      B. The Judicial fact findings of Horowitz’s truthfulness (and
                         Cole’s untruthfulness) established a presumption of probable
                         cause. ........................................................................................................ 4

                      C. The GBG witnesses’ corroboration established a presumption
                         of probable cause. ..................................................................................... 6

                      D. The grand jury’s indictment of Cole established a presumption
                         of probable cause. .................................................................................... 7

           III.       Cole’s makeweight “malice in fact” allegations are irrational and
                      threadbare. ...................................................................................................... 8

           IV.        Cole fails to allege that Horowitz overcame the volition of federal
                      prosecutors ...................................................................................................... 9

Conclusion……………………….. ........................................................................................ 10


         Case 1:25-cv-09357-MKV                     Document 35              Filed 05/11/26            Page 3 of 15


                                                    Table of Authorities

Cases

Ashcroft v. Iqbal, 556 U.S. 662 (2009) ........................................................................................... 1


Colon v. City of New York, 60 N.Y.2d 78 (1983)…………………………………………. 1, 4, 5


Dantas v. Citigroup, 779 F. App’x 16 (2d Cir. 2019) ................................................................ 1, 10


Goddard v. Daly, 295 A.D.2d 314 (2nd Dep’t 2002) ...................................................................... 4


Gull Keys I LLC v. Fulton Advisory Beef Fund I, LLC, No. 1:23-cv-09058-MKV, 2025 U.S.
  Dist. LEXIS 169799 (S.D.N.Y. Sept. 2, 2025) ........................................................................... 5


Paro Mgmt. Co. v. Willis of New Jersey, Inc., No. 1:24-cv-4885 (MKV),
   2025 U.S. Dist. LEXIS 57884 (S.D.N.Y. March 27, 2025) ....................................................... 3


Passucci v. Home Depot, Inc., 67 A.D.3d 1470 (4th Dep’t 2009) .................................................. 4


Robinson v. Concentra Health Servs., 781 F.3d 42 (2nd Cir. 201)…………………………….......5


Sibblies v. City of New York, 219 A.D.3d 403 (1st Dep’t 2023).................................................... 4


United States v. Cole, 158 F.4th 113 (2d Cir. 2025). .............................................................. passim


                                                                 ii


         Case 1:25-cv-09357-MKV          Document 35       Filed 05/11/26      Page 4 of 15


         Defendant Seth Horowitz submits this Reply Memorandum of Law in further support of

his motion to dismiss the Amended Complaint, as against Horowitz.1

                                                 Argument

         A complaint must contain more than threadbare allegations and speculation, particularly a

pleading that is grounded on a contention the defendant acted “irrationally,” like Cole’s. See

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). But speculation, and distortion of a record that is

incorporated into his Complaint, is all Cole proffers.

    I.      Cole’s initiation allegations are implausible and threadbare

         Cole contends Horowitz initiated, and continued, the DOJ’s criminal case against Cole by

(i) “fraudulently” or “perjuriously”2 confessing, and then pleading guilty, to a fictional fraud

scheme involving Cole and himself; and (ii) overcoming the “volition,”3 of a team of FBI agents

and federal prosecutors by duping them into obtaining an indictment against Cole, and then

trying him twice, all while keeping each of the experienced law enforcement officers in the dark

about the purported absence of probable cause to bring the case. To call this theory of liability

implausible is an understatement.

         First, Cole contends Horowitz chose to invent, and plead guilty to, a fictional criminal

scheme because of a purportedly “deep-seated and mostly irrational resentment and anger

towards Cole.” Cole Opp. Mem. at 23. But despite having access to a plethora of evidence, and

after two trials during which two teams of skilled criminal defense lawyers did everything


1
  Unless otherwise indicated, initially capitalized terms employed herein are intended to have the
definitions set forth in Horowitz’s Opening Memorandum and in the Amended Complaint.
2
  See Colon v. City of New York, 60 N.Y.2d 78, 82-83 (1983).
3
  See Dantas v. Citigroup, 779 F. App’x 16, 23 (2d Cir. 2019) (summary order).


         Case 1:25-cv-09357-MKV          Document 35        Filed 05/11/26      Page 5 of 15


possible to call into question Horowitz’s credibility, Cole offers only makeweight allegations to

support his avowedly “irrational” contentions. See Horowitz Opening Mem. Point III.

         Cole’s “irrationality” allegations are not only meager, but also misleading: Cole: (i)

distorts documentary evidence, including by falsely asserting Horowitz drafted multiple letters

proclaiming his hatred of Cole; and (ii) misstates trial testimony, including by falsely claiming

Horowitz admitted to purchasing massive quantities of illegal drugs, when he actually purchased

some marijuana for personal use. Cole also, belatedly, acknowledges a handwritten note on

which Cole grounds his contention that Horowitz knowingly lied was twice rejected as irrelevant

by Judge Ramos, because it fails to meaningfully impeach Horowitz’s veracity. See Point III,

infra.

         Second, Cole asserts Horowitz acted to “protect” himself, but fails to explain how

inventing, and then pleading guilty to, a purportedly fictional set of felonies could have

“protected” Horowitz.

         Cole speculates Horowitz “may well have committed” a separate criminal scheme with

GBG that Cole was uninvolved in. Cole Opp. Mem. at 14. But Cole cannot point to a single

allegation of fact in his Amended Complaint to support his speculation. Cole made no such

allegations because there is no basis for them. As we have explained, and the Second Circuit’s

opinion makes clear, there is nothing in the voluminous documentary and testimonial record

supporting such a “possibility[].”Horowitz Opening Mem. at 10. Furthermore, as we have also

explained, Cole’s current rank speculation about the “possibility” of such a crime is at odds with

Cole’s own trial testimony. Id. at 11.


                                                  2


         Case 1:25-cv-09357-MKV          Document 35        Filed 05/11/26       Page 6 of 15


         Third, faced with the absence of factual allegations to sustain his irrational theory of

initiation, Cole has proffered a new, and equally meritless, contention: That the Second Circuit

made findings of fact supporting his contention that Horowitz is a perjurer in connection with its

Double Jeopardy holding.

         According to Cole, the Second Circuit “earnestly believed that Horowitz was not telling

the truth.” Cole Opp. Mem. at 14. That is simply false. The Second Circuit did not make a

finding that Horowitz engaged in “fraud, perjury” or their equivalent, as required to sustain

Cole’s claim herein; indeed, the issue of Horowitz’s state of mind and intent was not before the

appellate court.

         Finally, Cole points to his own assertion on the stand that Horowitz was untruthful. It is,

however, settled law that a malicious prosecution plaintiff’s testimony is never alone sufficient to

establish probable cause. Cole contends the caselaw allows such a plaintiff’s testimony to be

considered if she also alleges other cognizable facts colorably establishing the malicious

prosecution defendant knowingly lied. Cole, however, fails to allege such facts.

         Cole suggests he may later be able to adduce evidence supporting his contention that

Horowitz is a perjurer. But such speculation cannot sustain a complaint against a motion to

dismiss, let alone a fundamentally implausible complaint like Cole’s. See Paro Mgmt. Co. v.

Willis of New Jersey, Inc., No. 1:24-cv-4885 (MKV), 2025 U.S. Dist. LEXIS 57884 (S.D.N.Y.

March 27, 2025).

   II.      The undisputed facts establish multiple independent bases for presuming probable
            cause that Cole cannot rebut

         Cole offers defective arguments against each of the four, independent, bases for

presuming probable cause that appear on the face of his Complaint and the materials

                                                   3


      Case 1:25-cv-09357-MKV            Document 35        Filed 05/11/26      Page 7 of 15


incorporated therein. Each of these presumptions is independently fatal to the Complaint, given

that Cole also fails to allege that Horowitz procured the Department of Justice’s indictment

through “fraud, perjury, the suppression of evidence or other … conduct undertaken in bad

faith,” as New York law requires to overcome a presumption of probable cause. Colon, 60

N.Y.2d at 82-83.

         A. Cole’s second trial conviction established a presumption of probable cause.

         As the First, Second and Fourth Departments have held, a criminal conviction establishes

a presumption of probable cause, regardless of whether it is reversed on appeal. Sibblies v. City

of New York, 219 A.D.3d 403, 404-05 (1st Dep’t 2023); Passucci v. Home Depot, Inc., 67

A.D.3d 1470, 1471 (4th Dep’t 2009); Goddard v. Daly, 295 A.D.2d 314, 315 (2nd Dep’t 2002).

Cole asserts that, because the reversal of a federal criminal conviction renders the verdict

ineffective for criminal law purposes, the foregoing substantive rule of New York law applicable

to the civil tort of malicious prosecution at issue herein can be disregarded by this Court. Cole is

wrong.

         B. The Judicial fact findings of Horowitz’s truthfulness (and Cole’s untruthfulness)
            established a presumption of probable cause.

         Judge Ramos (who presided over both of Cole’s criminal trials) made the following

findings of fact in connection with Cole’s sentencing: (i) Cole committed perjury, and (ii)

Horowitz was truthful. Such findings, at a minimum, give rise to a presumption that the

indictment of Cole was supported by probable cause.

         Cole offers two equally meritless arguments for barring this Court from recognizing the

existence of Ramos’ damning (for him) findings:


                                                 4


       Case 1:25-cv-09357-MKV           Document 35        Filed 05/11/26      Page 8 of 15


       First, Cole asserts this Court should not recognize a presumption of probable cause

arising from Judge’s Ramos’s findings that Cole committed perjury because there is no caselaw

directly on point. That, however, is almost certainly only because no former criminal defendant

has had the audacity to bring a malicious prosecution case after a judge found them to be a

perjurer. Furthermore, the New York Court of Appeals’ holding in Colon that a grand jury’s vote

to issue an indictment -- which is not even a finding of culpability – establishes a presumption of

probable cause leads, a fortiori, to the conclusion that a judicial finding of perjury by a malicious

prosecution plaintiff, at a minimum, gives rise to the same presumption.

       Second, Cole suggests, without authority, this Court cannot recognize the existence of

Judge Ramos’s findings under the incorporation by reference rule. He is wrong.

       Judge Ramos’ findings were included in the record on appeal that Cole presented to the

Second Circuit, and that the appellate court repeatedly cited, and relied upon, in the decision on

which Cole grounds his purported malicious prosecution claim. Accordingly, like the appellate

opinion, the trial court record (including Judge Ramos’ findings) are incorporated by reference

into Cole’s Complaint under the law of this Circuit. See Gull Keys I LLC v. Fulton Advisory

Beef Fund I, LLC, No. 1:23-cv-09058-MKV, 2025 U.S. Dist. LEXIS 169799, at *8 (S.D.N.Y.

Sept. 2, 2025).

       Additionally, in their briefing in support of Cole’s ultimately successful appeal, Cole’s

appellate counsel quoted, and expressly relied on, the very sentencing findings by Judge Ramos


                                                  5


         Case 1:25-cv-09357-MKV         Document 35        Filed 05/11/26      Page 9 of 15


Cole now says this Court cannot recognize. Accordingly, Cole is judicially estopped from his

current position. See Robinson v. Concentra Health Servs., 781 F.3d 42, 45-46 (2nd Cir. 2015).4

         C. The GBG witnesses’ corroboration established a presumption of probable cause.

         The two GBG witnesses were at the “center stage” of the government’s case against Cole

(158 F. 4th at 122), as the Second Circuit explained, and as Cole’s appellate counsel

acknowledged. The GBG Witnesses corroborated three of the factual pillars of the government’s

case against Cole by testifying that: (i) Cole entered into undocumented side deals, including

through GBG’s Rabin, who testified that he made “firm” oral agreements with Cole respecting

the SEA-2 and SEA-3 transactions; (ii) GBG would not have executed the written agreements for

the foregoing transactions without Cole’s oral commitments to provide millions of dollars in

reimbursements and credits; and (iii) Cole actually provided millions of dollars in cash payments

to GBG pursuant to the undocumented oral agreements with GBG. Horowitz Opening Mem. at

13-17.

         Under settled New York law, such corroboration gives rise to a presumption of probable

cause as a matter of law; and each of Cole’s makeweight arguments for setting aside that

presumption fails:

         First, Cole contends that the presumption only applies where the malicious prosecution

defendant is a police officer. Cole, however, offers no authority for this contention, which is


4
  In light of the foregoing, this Court need not address whether it can also take judicial notice of
the sentencing proceedings. But the precedents Cole cites acknowledge that the existence of
judicial orders can be the subject of judicial notice, and Horowitz is simply asking that the Court
take notice of the existence of Judge Ramos’s findings, not that it adopt them as binding, as Cole
misleadingly suggests.
                                                 6


      Case 1:25-cv-09357-MKV            Document 35         Filed 05/11/26       Page 10 of 15


nonsensical, given that New York law places a greater, not a lesser, burden on a plaintiff suing a

private citizen for malicious prosecution. See Point III, infra.

       Second, Cole asserts that the existence of corroborating testimony cannot be recognized

by this Court at the motion to dismiss stage. Cole again offers no support for his contention,

which is nonsensical. Where, as here, corroborating testimony is set forth in trial records that are

incorporated by reference into the plaintiff’s complaint, and recounted in an appellate decision

on which the plaintiff relies, they are deemed to be incorporated by reference into the plaintiff’s

pleading under the law of this Circuit. See Gull Keys I LLC, supra.

       Finally, Cole contends the GBG Witnesses’ corroboration came too late, because they

testified at trial, after the grand jury issued its indictment, But the GBG witnesses also testified

before the grand jury which issued the indictment (while Horowitz did not). In any event, Cole’s

contention that a presumption of probable cause cannot derive from trial testimony in a malicious

prosecution case is at direct odds with the settled rule that a trial conviction gives rise to such a

presumption.

       D. The grand jury’s indictment of Cole established a presumption of probable cause.

       Finally, the grand jury’s indictment of Cole established a presumption of probable cause,

as the New York Court of Appeals has held. Once again, Cole’s arguments for ignoring this

settled rule of New York law are unavailing.

       Cole contends that the grand jury indictment should be ignored “because his claim

necessarily does not depend on what happened in the grand jury.” Cole Opp. Mem. at 21. But the

issue is not whether the grand jury’s indictment – and thus its finding of probable cause -- is part

of Cole’s claim, but rather whether it obviates his claim, as a matter of law.


                                                   7


      Case 1:25-cv-09357-MKV              Document 35        Filed 05/11/26      Page 11 of 15


           Cole also, confusingly, tries to take Horowitz to task for pointing out the FBI’s notes of

the DOJ’s interviews of Horowitz provide no basis to call into question his veracity, despite the

fact that Cole, in his counsel’s earlier letter to this Court, speculated that those notes – or their

substantive equivalent -- were read to the grand jury, and baselessly suggested that they

contained knowing falsehoods.

                                                     * * *

           As demonstrated in our Opening Memorandum, and in Points I and III hereof, Cole does

not make any substantial allegations of fact supporting his contention that Horowitz engaged in

perjury or its equivalent, as required to rebut each of the foregoing presumptions.

    III.      Cole’s makeweight “malice in fact” allegations are irrational and threadbare

           Cole’s purported “malice” allegations also constitute the (exceedingly weak) foundation

for his assertions that: (i) Horowitz “initiated” the government’s criminal case; and (ii) there was

no probable cause for the indictment, both of which Cole must adequately allege to sustain his

malicious prosecution claim. Cole contends Horowitz had such a “deep-seated and mostly

irrational resentment and anger towards Cole” that he was willing to go to jail for a fictional

crime by knowingly lying to the government. But the three allegations that purportedly support

this irrational contention are each defective.

           First, Cole persists in, falsely, contending Horowitz drafted multiple letters demonstrating

his purported “irrational hatred” for Cole. But Cole cites only a single email that was drafted

years before any of the events at issue, and that Horowitz never sent. Furthermore, the unsent

email (which we have presented in full to the Court) expresses no “deep seated hatred” of Cole,

let alone hatred of an “irrational” variety. Rather than evincing that Horowitz had a motive to


                                                    8


      Case 1:25-cv-09357-MKV             Document 35        Filed 05/11/26      Page 12 of 15


invent and plead guilty to a non-existent crime years later, it merely expresses the kind of strong

disagreement that business colleagues often share with one another during a time of stress.

         Second, Cole belatedly acknowledges that the second of the two items grounding his

contention that Horowitz committed perjury or its equivalent out of “irrational hatred” -- a

snippet from a handwritten note Horowitz wrote well after the events at issue -- was kept from

the jury during both of Cole’s criminal trials because Judge Ramos ruled that the note did not

meaningfully call into question Horowitz’s truthfulness as a witness.

         Cole also contends it is insignificant that the note was written after the relevant events;

yet that is among the reasons Judge Ramos gave for refusing to allow the document to be

presented to the jury, stating that the note was “out of context, temporally” and more likely to

confuse the jury than to meaningfully call into question Horowitz’s veracity. Furthermore, the

note, which does not reference Cole in any relevant respect, does nothing to support Cole’s

contention that Horowitz bore an “irrational hatred” of him.

         Finally, Cole scrapes the bottom of the barrel by asserting that wholly legal withdrawals

Horowitz made from his bank account could somehow prove he is a perjurer. In purported

support of this contention, Cole now suggests that Horowitz used most or all of the money he

withdrew to “purchase drugs.” Cole Opp. Mem. at 25. In fact, Horowitz testified that he used

some, presumably small, portion of the funds at issue to purchase marijuana for personal use;

that neither establishes that Horowitz had a deep-seated hatred of Cole nor that he was a

knowingly untruthful witness.

   IV.      Cole fails to allege that Horowitz overcame the volition of federal prosecutors


                                                   9


      Case 1:25-cv-09357-MKV           Document 35        Filed 05/11/26     Page 13 of 15


       A malicious prosecution plaintiff suing a non-governmental witness must plead and prove

that the defendant overcame the “volition” of the prosecutors, who are presumed to exercise their

own independent judgment when bringing and prosecuting criminal charges. See Dantas, 779 F.

App’x at 23.

       During his trial testimony, Cole asserted that federal prosectors knew that he was

innocent, but nonetheless used “threat[s]” to coerce both of the GBG Witnesses and Horowitz to

falsely testify Cole had entered into the undocumented side deals with GBG, and thereby

overcame Horowitz’s and the other witnesses’ volition, not the other way round.

       In his opposition, Cole asserts the prosecutors could have both threatened Horowitz to

compel him to (purportedly falsely) testify that Cole entered into the oral agreements with GBG

and that Horowitz simultaneously overcame the prosecutors’ volition by providing the very same

testimony. That is nonsensical, and indeed irrational.5

                                                Conclusion

       For all of the reasons stated herein, in our Opening Memorandum and in the

accompanying Affirmations, we respectfully submit that the Amended Complaint herein should

be dismissed, as against Horowitz, with prejudice.


5
  The foregoing dispositive arguments apply equally to Cole's malicious prosecution claim
insofar as it purportedly arises from the obstruction of justice charges brought against Cole. This
theory of liability is, once again, irrational. While Cole asserts Horowitz testified to Cole
destroying documents (Cole Opp. Mem. at 3); that is not true. Horowitz solely testified that he
destroyed documents, at Cole's direction. Accordingly, just as with the underlying fraud scheme,
Horowitz directly implicated himself in a crime; furthermore, Horowitz pleaded guilty to
obstruction. Affirmation of David R. Lurie, dated May 11, 2026, Exh. H (excerpting testimony).
Finally, the (unrebutted) presumptions of probable cause arising both from Judge Ramos's
findings and the indictment apply with full force to this portion of Cole's purported claim.
                                                10


     Case 1:25-cv-09357-MKV   Document 35    Filed 05/11/26    Page 14 of 15


Dated: May 11, 2026
Brooklyn, New York
                                  Respectfully submitted,


                                  LAW OFFICE OF DAVID R. LURIE, PLLC


                                  By: ________/s/____________
                                  David R. Lurie
                                  194 President Street
                                  Brooklyn, NY 11231
                                  347-651-0194

                                   Attorneys for Defendant Seth Horowitz


                                    11


      Case 1:25-cv-09357-MKV           Document 35        Filed 05/11/26      Page 15 of 15


                                     Certificate of Compliance


        Pursuant to Local Civil Rule 7.1(c), the above-named counsel hereby certifies that this

memorandum complies with the word-count limitation of this Court’s Local Civil Rules. As

measured by the word processing system used to prepare it, this memorandum contains 2,830

words (exclusive of the caption, any index, table of contents, table of authorities, signature

blocks and this certificate).


                                                 12