Opinion
2014-05-15
Kenechukwu C. OKOLI, Plaintiff–Appellant, v. PAUL HASTINGS LLP, et al., Defendants–Respondents.
Law Offices of Nicholas A. Penkovsky, PC, New York (Nicholas A. Penkovsky of counsel), for appellant. Paul Hastings LLP, New York (Carla R. Walworth of counsel), for respondents.
Law Offices of Nicholas A. Penkovsky, PC, New York (Nicholas A. Penkovsky of counsel), for appellant. Paul Hastings LLP, New York (Carla R. Walworth of counsel), for respondents.
MAZZARELLI, J.P., ANDRIAS, DeGRASSE, MANZANET–DANIELS, FEINMAN, JJ.
Order, Supreme Court, New York County (Cynthia Kern, J.), entered September 19, 2012, which granted defendant's motion to dismiss the complaint, unanimously affirmed, with costs; order, same court and Justice, entered December 14, 2012, which, to the extent appealed from, denied plaintiff's motion for leave to file an amended complaint and to modify the prior order, unanimously affirmed, with costs.
The court properly dismissed the slander per se claim because the alleged defamatory statements were made during a judicial proceeding and may be considered pertinent to that proceeding ( see Sexter & Warmflash, P.C. v. Margrabe, 38 A.D.3d 163, 171–172, 828 N.Y.S.2d 315 [1st Dept.2007] ).
The court properly dismissed the claim for civil assault. The physical conduct alleged by plaintiff, which amounts to finger pointing and generalized yelling in the context of a heated deposition, is inappropriate behavior, not to be condoned, but, without more, is not the type of menacing conduct that may give rise to a reasonable apprehension of imminent harmful conduct needed to state an actionable claim of assault ( see Holtz v. Wildenstein & Co., 261 A.D.2d 336, 693 N.Y.S.2d 516 [1st Dept.1999] ).
Plaintiff's motion to modify the order and for leave to serve an amended complaint was properly denied since the proposed pleading contained no new allegations to sustain the dismissed causes of action.