Summary
In Cullin v. Lynch, 113 AD3d 586 (2d Dept. 2014), a case whose facts are impressively akin to the case herein, the plaintiff s defamation claim was for slander and libel.
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2014-01-8
Karen CULLIN, appellant, v. Keith LYNCH, et al., respondents.
Paul W. Haug, Medford, N.Y., for appellant. John J. O'Grady, Garden City, N.Y. (Mary Ellen O'Brien of counsel), for respondent Keith Lynch.
Paul W. Haug, Medford, N.Y., for appellant. John J. O'Grady, Garden City, N.Y. (Mary Ellen O'Brien of counsel), for respondent Keith Lynch.
Perez & Vavaro, Uniondale, N.Y. (Denise A. Cariello of counsel), for respondent Gary Lynch.
PETER B. SKELOS, J.P., JOHN M. LEVENTHAL, PLUMMER E. LOTT, and JEFFREY A. COHEN, JJ.
In an action to recover damages for slander per se and libel per se, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Asher, J.), dated April 5, 2012, which granted the defendants' separate motions pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against each of them.
ORDERED that the order is affirmed, with one bill of costs.
Contrary to the plaintiff's contention, the cause of action to recover damages for slander per se was time-barred. The statute of limitations for an action to recover damages for slander is one year ( seeCPLR 215[3] ), measured from the date of the publication or utterance of the allegedly slanderous statement ( see Wilson v. Erra, 94 A.D.3d 756, 756, 942 N.Y.S.2d 127; Gigante v. Arbucci, 34 A.D.3d 425, 426, 823 N.Y.S.2d 539; Frederick v. Fried, 10 A.D.3d 444, 445, 780 N.Y.S.2d 908). Here, the allegedly slanderous statements were uttered in 2002, and the plaintiff did not commence the instant action until 2011. Moreover, the complaint did not allege misleading conduct on the part of the defendants upon which the plaintiff could have reasonably relied to delay commencement of the action, so as to equitably estop the defendants from asserting the bar of the statute of limitations ( see Zumpano v. Quinn, 6 N.Y.3d 666, 674–675, 816 N.Y.S.2d 703, 849 N.E.2d 926; Sethi v. Morrissey, 105 A.D.3d 833, 834, 961 N.Y.S.2d 809; Reiner v. Jaeger, 50 A.D.3d 761, 762, 855 N.Y.S.2d 613). To the extent that the plaintiff attempted to remedy defects in the amended complaint ( see generally Rovello v. Orofino Realty, Co., 40 N.Y.2d 633, 635, 389 N.Y.S.2d 314, 357 N.E.2d 970), the affidavit submitted by her attorney, who had no personal knowledge of the facts underlying the claim, was insufficient to establish the applicability of the doctrine of equitable estoppel ( see Reiner v. Jaeger, 50 A.D.3d 761, 855 N.Y.S.2d 613; see generally Harris v. Five Point Mission–Camp Olmstedt, 73 A.D.3d 1127, 1128, 901 N.Y.S.2d 678).
The defendants also were entitled to dismissal of the cause of action to recover damages for libel per se. For purposes of defending against a cause of action alleging libel per se, “[s]tatements made by parties, attorneys, and witnesses in the course of a judicial or quasi-judicial proceeding are absolutely privileged, notwithstanding the motive with which they are made, so long as they are material and pertinent to the issue to be resolved in the proceeding” (Rufeh v. Schwartz, 50 A.D.3d 1002, 1004, 858 N.Y.S.2d 194 [internal quotation marks omitted]; see Toker v. Pollak, 44 N.Y.2d 211, 218–219, 405 N.Y.S.2d 1, 376 N.E.2d 163; Sklover v. Sack, 102 A.D.3d 855, 856, 958 N.Y.S.2d 474; Wilson v. Erra, 94 A.D.3d 756, 756–757, 942 N.Y.S.2d 127; Rabiea v. Stein, 69 A.D.3d 700, 893 N.Y.S.2d 224). Here, the allegedly libelous statements were published in affidavits submitted in 2011, during the course of a contested probate proceeding. As those statements were made by parties or witnesses in a pending judicial proceeding, and were material and pertinent to the objections to probate, they are protected by an absolute privilege ( see Sklover v. Sack, 102 A.D.3d at 856, 958 N.Y.S.2d 474; Rabiea v. Stein, 69 A.D.3d at 700–701, 893 N.Y.S.2d 224). Accordingly, even accepting the allegations in the amended complaint as true, and resolving all inferences in favor of the plaintiff ( see Leon v. Martinez, 84 N.Y.2d 83, 87–88, 614 N.Y.S.2d 972, 638 N.E.2d 511), the amended complaint failed to state a cause of action to recover damages for libel per se ( seeCPLR 3211[a][7]; Rabiea v. Stein, 69 A.D.3d 700, 893 N.Y.S.2d 224; Rufeh v. Schwartz, 50 A.D.3d 1002, 858 N.Y.S.2d 194).
In view of the foregoing, we need not consider the plaintiff's remaining contention.