Gear Up, Inc. v. City of N.Y.

Full title: Gear Up, Inc., etc., Plaintiffs-Respondents, v. The City of New York, et…

Court: Supreme Court, Appellate Division, First Department, New York.

Date published: Jun 16, 2016

140 A.D.3d 515 (N.Y. App. Div. 2016)

2016 N.Y. Slip Op. 4792

34 N.Y.S.3d 17

Opinion

1462 158312/13

06-16-2016

Gear Up, Inc., etc., Plaintiffs-Respondents, v. The City of New York, et al., Defendants, Village Voice, LLC, etc., Defendant-Appellant.

Miller Korzenik Sommers Rayman LLP, New York (David S. Korzenik and Terrence P. Keegan of counsel), for appellant. Brenner Law Office, New York (Scott D. Brenner of counsel), for respondents.

Tom, J.P., Mazzarelli, Manzanet-Daniels, Kapnick, Kahn, JJ.

Miller Korzenik Sommers Rayman LLP, New York (David S. Korzenik and Terrence P. Keegan of counsel), for appellant.

Brenner Law Office, New York (Scott D. Brenner of counsel), for respondents.

Order, Supreme Court, New York County (Lynn R. Kotler, J.), entered September 3, 2015, which denied defendant Village Voice, LLC a/k/a the Village Voice's motion to dismiss the action as against it for failure to serve a complaint, and granted plaintiffs' cross motion for an extension of time under CPLR 3012(b), deeming the proposed complaint timely served nunc pro tunc, unanimously reversed, on the law and the facts, without costs, plaintiffs' motion denied, and defendant's motion granted. The Clerk is directed to enter judgment dismissing the action as against the Village Voice.

Plaintiffs failed to demonstrate either a reasonable excuse for not serving the complaint or a meritorious claim in support of their motion for an extension of time to serve it (CPLR 3012[d]; see Talley v Montefiore Hosp., 167 AD2d 231 [1st Dept 1990]).

The complaint that plaintiffs annexed to their cross motion fails to suffice as an affidavit of merit since it does not contain "evidentiary facts sufficient to establish a prima facie case" (Kel Mgt. Corp. v Rogers & Wells, 64 NY2d 904, 905 [1985]). It alleges that defendant printed "malicious defamatory remarks" but does not set forth the particular words complained of (CPLR 3016[a]; see Khan v Duane Reade, 7 AD3d 311 [1st Dept 2004]). Nor does it allege facts showing that defendant acted with actual malice (see Gertz v Robert Welch, Inc., 418 US 323, 342 [1974]).

In any event, plaintiff, as a public figure, would have had to allege facts that the defendant acted with actual malice, knowledge that the statements were false or a high degree of awareness of falsity (see id.). There is no such showing here.

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

ENTERED: JUNE 16, 2016

CLERK