Rubin v Napoli Bern Ripka Shkolnik, LLP

Rubin v Napoli Bern Ripka Shkolnik, LLP 2017 NY Slip Op 05054 Decided on June 20, 2017 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on June 20, 2017
Friedman, J.P., Renwick, Manzanet-Daniels, Kapnick, Gesmer, JJ.
4322N 154060/15

[*1] Denise A. Rubin, Plaintiff-Respondent,

v

Napoli Bern Ripka Shkolnik, LLP, et al., Defendants, Paul J. Napoli, Defendant-Appellant.

Clausen Miller P.C., New York (Kimbley A. Kearney of counsel), for appellant.

LeClairRyan, A Professional Corporation, New York (Joseph M. Cerra of counsel), for respondent.

Order, Supreme Court, New York County (Cynthia S. Kern, J.), entered September 30, 2016, which, to the extent appealed from, denied the individual defendant's motion to amend his answer insofar as he sought to assert counterclaims for defamation and defamation per se, unanimously affirmed, with costs.

Because the notice of appeal was limited to "the defamation and defamation per se causes of action," we cannot consider defendant's arguments relating to the motion court's denial of leave to amend his answer to assert counterclaims for intentional and negligent infliction of emotional distress (see D'Mel & Assoc. v Athco, Inc., 105 AD3d 451, 453 [1st Dept 2013]).

As to the proposed defamation counterclaims, defendant initially sought to assert them as standalone counterclaims within the one-year limitations period. However, the counterclaims were dismissed as procedurally improper, since they were not appended to an answer (see CPLR 3011; Newman v Newman, 245 AD2d 353, 354 [2d Dept 1997]). Because the motion for leave to amend was made less than six months later, the proposed counterclaims could be saved by CPLR 205(a)'s six-month grace period (see George v Mt. Sinai Hosp., 47 NY2d 170, 177-179 [1979]; Weksler v Weksler, 140 AD3d 491, 493 [1st Dept 2016]).

Nevertheless, in the record before us, defendant fails to state with particularity the allegedly defamatory statements, and therefore his fourth and fifth counterclaims are defective as a matter of law (CPLR 3016[a]["the particular words complained of shall be set forth in the complaint"]; Dillon v City of New York, 261 AD2d 34, 40 [1999])[FN1]. To the extent that [*2]defendant's counterclaim sets forth some of the words complained of, they consist largely of verbatim quotations from the complaint, and thus are "absolutely privileged and cannot form the basis of a

defamation action" (Flomenhaft v Finkelstein, 127 AD3d 634, 637 [1st Dept 2015]; see Tacopina v O'Keeffe, 645 Fed Appx 7, 8 [2d Cir 2016]).

We have considered defendant's remaining arguments and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JUNE 20, 2017

CLERK

Footnotes

Footnote 1:Defendant's counterclaim refers to exhibits that are not in the record before us. It is not clear whether they were attached to the papers before the motion court.