Omansky v Penning

Omansky v Penning 2012 NY Slip Op 08657 Decided on December 13, 2012 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 December 13, 2012
Tom, J.P., Sweeny, Moskowitz, Renwick, Clark, JJ.
8806 114241/09

[*1]Lawrence A. Omansky, Plaintiff-Appellant,

v

Tjebbo Penning, Defendant, 160 Chambers Street Owners, Inc., Defendant-Respondent.




Lawrence A. Omansky, New York, appellant pro se.
Law Office of Nathaniel B. Smith, New York (Nathaniel B.
Smith of counsel), for respondent.

Order, Supreme Court, New York County (Paul G. Feinman, J.), entered on or about April 25, 2011, which, insofar as appealed from as limited by the briefs, granted defendants' motion to dismiss the complaint, unanimously affirmed, without costs.

Plaintiff asserts that defendants defamed him by stating, in front of a potential subtenant, that plaintiff had been evicted and had no right to sublet the property, which was owned by defendants and had been leased to plaintiff. The documentary evidence established, however, that, prior to the alleged statements being made, plaintiff had assigned his rights in the leasehold to Nicolena's B and B II, Inc., a corporate entity run by plaintiff. The documentary evidence further showed that Nicolena's had assigned its rights in the leasehold to an unrelated third-party. Thus, it is that third-party, and not plaintiff, who owns the leasehold, and plaintiff lacked capacity to bring a suit arising out of the same (see Old Clinton Corp. v 502 Old Country Rd., 5 AD3d 363, 364 [2d Dept 2004]). Plaintiff could also not be defamed by a statement when the net effect of that statement was, in fact, true (see Konrad v Brown, 91 AD3d 545 [1st Dept 2012], lv denied 19 NY3d 804 [2012]).

We have considered plaintiff's remaining contentions and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: DECEMBER 13, 2012

CLERK