Opinion
Index No. 151024/2022 Motion Seq. No. 001 NYSCEF Doc. No. 59
05-30-2023
BARBARA SILVERSTEIN, Plaintiff, v. ROBIN GREGORY, WILSON ELSER MOSKOWITZ EDELMAN & DICKER LLP Defendants.
Unpublished Opinion
MOTION DATE 08/15/2022
DECISION + ORDER ON MOTION
DAKOTA D. RAMSEUR, J.S.C.
The following e-filed documents, listed by NYSCEF document number (Motion 001) 18, 19, 20, 21, 22, 23, 24, 25, 26, 28, 29, 30, 31,32, 33, 34, 35, 36, 37, 38, 39, 40, 41,42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58 were read on this motion to/for DISMISS.
Plaintiff, Barbara Silverstein (plaintiff), commenced this action pursuant to New York Judiciary Law § 487 and for libel against defendants Robin Gregory, Esq. (Gregory) and Wilson Elser Moskowitz Edelman & Dicker LLP (Wilson Elser) (collectively, defendants) stemming from their representation of the defendant in the disposed underlying action in New York County entitled Silverstein v Farr Nezhat, et al., Index no. 109486/2006 (the underlying action). Defendants now move pursuant to CPLR 3211(a)(1), (7) to dismiss the amended complaint. Plaintiff opposes defendants' motion and cross-moves for leave to amend her amended verified complaint, and pursuant to CPLR 602 to consolidate the instant action with the underlying action. For the following reasons, the motion to dismiss the complaint is granted, and the cross-motion is denied.
Plaintiff alleges that while Gregory and Wilson Elser represented Mt. Sinai Medical Center (Mt. Sinai) and Farr Nezhat, M.D. (Nezhat) in the underlying action, they engaged in a deceit upon the court and published false information about plaintiff on the Wilson Elser website. In the underlying action, plaintiff brought allegations of medical malpractice, including lack of informed consent and battery stemming from two office consults by plaintiff with Nezhat in June 2005 and the July 13, 2005 surgery upon plaintiff at Mt. Sinai. Plaintiff was a patient at Mt. Sinai from July 13 to July 15, 2005.
The underlying action ended in a jury verdict for the defendants. Subsequently, plaintiff moved to vacate the verdict, arguing that defense trial counsel knowingly deceived the court in violation of Judiciary Law § 487 during discovery and pretrial proceedings as well as during the trial of this case. This motion has not yet been decided.
Plaintiff appealed the jury verdict but did not perfect the appeal. She then brought an action against her trial lawyer and that case was dismissed.
FACTCUAL ALLEGATIONS
Plaintiff alleges that on June 23, 2005, plaintiff consulted with Nezhat prior to surgery. Plaintiff alleges that prior to that meeting, Nezhat reviewed the video tape of Hany Reich, M.D. (Reich), performing "laproscopic removal of Plaintiff's endometriosis (endo)" (NYSCEF doc. no. 6, amended complaint, ¶ 24). According to plaintiff, during that consult, Nezhat "failed to advise Plaintiff and her husband that Reich had removed Plaintiffs uterosacral ligaments during his laproscopic surgery as they were covered with endo" (id., ¶ 25). Plaintiff further alleges that Nezhat failed to advise plaintiff that "she should go for pelvic floor dysfunction physical therapy rather than have surgery inasmuch as Reich had removed Plaintiffs uterosacral pelvic support ligaments" (id, ¶ 26).
According to plaintiff, prior to June 23, 2005, Nezhat phoned plaintiff and told her "she needed a hysterectomy as she had endo in her uterine lining" (id., ¶ 27), and on June 23, 2005, "Nezhat agreed with Plaintiff and her husband he would perform a supracervical laparoscopic surgery upon Plaintiff' (id., ¶ 28). It is plaintiffs allegation that Nezhat "failed to tell Plaintiff that she was high risk for any hysterectomy because Reich had removed her uterosacral ligaments . . . Nezhat failed to tell Plaintiff and her husband on June 23, 2005 that he might have to convert to a complete hysterectomy during her surgery" (id., ¶ 30).
On July 12, 2006, Nezhat performed a complete hysterectomy, instead of a supracervical hysterectomy, on plaintiff without her consent (id., ¶¶ 31 and 32). Nezhat created an enterocele inside plaintiffs pelvis by removing the adhesions between plaintiffs uterus and rectum, but allegedly Nezhat failed to tell plaintiff after her surgery that he created an enterocele during his surgery of July 13, 2005. Nezhat further failed to tell plaintiff that he had repaired the enterocele at the end of the hysterectomy. Finally, Nezhat failed to tell plaintiff that he had created a vaginal cuff after he removed her cervix, and failed to place plaintiff on laxatives while she was healing from her complete hysterectomy. Additionally, Nezhat did not tell plaintiff and her husband that he might have trouble performing a supracervical hysterectomy since plaintiffs landmarks that would ordinarily show him where to cut to keep plaintiffs cervix, her uterosacral ligaments, had been removed by Reich.
With respect to the allegations against Gregory, plaintiff alleges that "[i]n order to protect Mt. Sinai from liability for its wrongful hiring of Nezhat, Gregory created a scheme of deceit and collusion with Nezhat prior to his depositions in Silverstein case" (id., ¶ 63). Specifically, plaintiff alleges that Gregory spoke to Nezhat in preparation for his depositions in the underlying Action. Plaintiff believes that "Gregory reviewed Nezhat's office records [and Mt. Sinai's hospital records] concerning the Plaintiff [with Nezhat] prior to Nezhaf s depositions in the Silverstein case" (id., ¶ 43). Plaintiff alleges that Nezhat prepared two separate operative reports regarding his July 13, 2005 surgery upon plaintiff, and that one of Nezhat's operative reports states that "Nezhat cut Plaintiffs aterosacral ligaments in order to remove Plaintiffs uterus and cervix on July 13, 2005". Nezhat's second operative report states that Nezhat "cut plaintiffs cardinal ligaments in order to remove plaintiff s uterus and cervix on July 13, 2005" (id., ¶¶ 47, 48).
Furthermore, regarding the Judiciary Law § 487 claim, plaintiff alleges that Gregory reviewed Nezhat's two (2) separate operative reports with Nezhat prior to his depositions in the underlying action, but that only one of the two operative reports was brought to Nezhat's depositions. According to Nezhat, the only operative report brought to Nezhat's depositions in the underlying Action was the operative report that states that Nezhat cut plaintiff s uterosacral ligaments in order to remove plaintiff s uterus and cervix. Nezhat testified at his depositions that he did not recall much about plaintiff s surgery other than what was stated in the operative report, but Nezhat testified at his deposition that he cut plaintiffs uterosacral ligaments to remove her uterus and cervix. Nezhat also testified at his deposition that he used plaintiffs uterosacral ligaments to create plaintiff s vaginal cuff even though he did not write this in his operative report. Plaintiff alleges that Nezhat failed to testify at his depositions that he had to convert the surgery to a complete hysterectomy, because plaintiffs" 'landmarks' that would ordinarily show him where to cut to perform a supracervical hysterectomy, the uterosacral ligaments, had been removed by Reich" (id., ¶ 55).
Furthermore, with respect to the § 487 claim, plaintiff alleges that Gregory intentionally only brought one of the two operative reports to Nezhat's depositions, and that Gregory told Nezhat not to testify at his deposition that Reich had removed plaintiffs uterosacral ligaments. Plaintiff contends that Gregory told Nezhat not to testify at his depositions that he removed plaintiffs cervix because her uterosacral ligaments were missing, and he could not see where to cut to keep her cervix.
On August 11, 2005, four weeks after Nezhat's surgery, plaintiff sustained an evisceration of her vaginal cuff, whereby her small intestine pushed through the top of plaintiffs vagina and came through her vaginal opening. Plaintiff had to undergo emergency surgery on August 11, 2005, to remove 18 inches of her small intestine and patch up her vagina. At his depositions, Nezhat testified that he did not tell plaintiff and her husband during the pre-surgery consult on June 23, 2005, that a vaginal cuff evisceration is a risk of a supracervical hysterectomy, as an evisceration could only happen if the cervix was removed. Nezhat further failed to tell Silverstein after her cervix had been removed that she was at risk for an evisceration, even though he wrote an article about this before the surgery.
Plaintiff alleges that in order to protect Mt. Sinai from liability for its wrongful hiring of Nezhat, Gregory "created a scheme of deceit and collusion with Nezhat prior to his depositions" and also with the defense experts in the underlying action, by having Drs. Herzog and Kavaler falsely testify that plaintiffs acupuncture at Maplewood Medical Associates, in Maplewood, New Jersey was in reality pelvic floor physical therapy. As part of Gregory's "scheme of deceit" (id., ¶¶ 57, 58 and 64), Gregory also had Nezhat testify "on the defense case at trial, rather than at his deposition, that he had to remove Plaintiffs cervix because Plaintiffs 'landmarks,' her uterosacral ligaments, that ordinarily show him where to cut to keep Plaintiffs cervix had been removed by Reich" (id., ¶ 65). Gregory also had Nezhat falsely testify at trial, rather than at his deposition, that he did not send plaintiff for "PFD PT before recommending surgery as plaintiff had already tried this PT before she came to see him" (id., ¶ 80).
Plaintiff further alleges that Gregory had the defense expert Dr. Gharibo falsely testify that plaintiff developed Narcotic Bowel Syndrome (NBS) after her hysterectomy despite there being a complete absence of any medical records documenting that plaintiff suffered from severe stomach aches following her taking pain medication. Gregory had defense expert Dr. Gharibo falsely testify that plaintiff s pain management physician, Steven Grenell, M.D., prescribed plaintiff so much pain medication that plaintiff developed NBS despite the complete absence of any medical records documenting this condition.
Gregory had defense expert Dr. Gharibo falsely testify that Dr. Grenell prescribed plaintiff so much pain medication that she developed an opioid addiction, despite the complete absence of any medical records documenting this condition. Gregory had all three defense witnesses, Herzog, Kavaler and Gharibo, testify that plaintiff failed to follow Grenell's recommendation to see a cognitive behavior therapist. Gregory obtained plaintiffs psychotherapy records from Rusk Institute at NYU, for which no authorization was provided, as well as the Summit Medical Group medical records before the year 2000 neither of which had anything to do with Nezhat's surgery.
Plaintiff alleges that she is entitled to vacatur of the jury's verdict dated February 2, 2016 and the judgment entered June 1, 2016, as well as the grant of summary judgment on liability, the award of lost earnings in the sum of $3,989,007 plus interest, as well a hearing on the value of plaintiffs other damages including, but not limited to, her pain and suffering and loss of enjoyment of life, as well as a determination of treble damages pursuant to Judiciary Law § 487.
As set forth above, plaintiff alleges that Dr. Gharibo falsely testified that plaintiff was addicted to opioids prescribed by Grenell, and that plaintiff s ingestion of opioids caused her injuries following Nezhat's surgery. Plaintiff alleges that at no time in her lifetime "has [she] ever been addicted to opioids" (id., ¶ 96) and that there are no medical records documenting that plaintiff was ever addicted to opioids, that none of plaintiffs treating doctors after Nezhaf s surgery told plaintiff that she was addicted to opioids and that none of plaintiff s treating doctors after Nezhat's surgery told her to seek treatment for opioid addiction.
Plaintiff alleges that Gregory falsely stated on her Wilson Elser webpage, under the section entitled "Exemplar Jury Verdicts," "Silverstein v. Nezhat, M.D," that "Defense verdict in case alleging complications of lap hysterectomy result in opioid addiction" (id., ex b). Plaintiff alleges that Gregory knowingly made this intentional and false statement in the absence of medical documentation in support thereof, and that as a result, plaintiff has been damaged by defendants and now seeks punitive damages for libel per se in the sum of $5,000,000.
DISCUSSION
Judiciary Law § 784
Defendants argue that plaintiffs Judiciary Law § 784 claim fails as a matter of law because plaintiff lacks standing as the firm owes no duty to her, and she has requested remedies not available under the Judiciary Law. According to defendants, plaintiff s claims arise from nothing other than Mt. Sinai's right to defend itself against her medical malpractice claim. Defendants further argue that plaintiffs claim lacks standing as defendants did not owe her a duty, specifically because plaintiff never had an attorney-client relationship with Wilson Elser, and Wilson Elser's only relationship with her is as opposing counsel.
In her amended complaint, plaintiff alleges that Nezhat generated two reports concerning Silverstein's July 13, 2005 operation, but that Gregory only brought one of the two reports, the one that states that Nezhat cut Silverstein's uterosacral ligaments during her surgery, to Nezhat's deposition. Further, according to plaintiff, Gregory prepared Nezhat for his deposition and coached him to testify falsely: "Gregory told Nezhat not to testify at his depositions that he removed Plaintiffs cervix only because Plaintiffs uterosacral ligaments were missing and he could not see where to cut to keep Plaintiffs cervix" (id, ¶ 58). Furthermore, plaintiff alleges that Gregory told Nezhat "not to testify at his deposition that Reich had removed Plaintiffs uterosacral ligaments," 11 years earlier, during a previous surgery in 1994 (id., ¶ 57).
In her affidavit in support of her motion to vacate the jury verdict, plaintiff avers that Gregory violated Judiciary Law § 487 "by having Dr. Gharibo falsely testify that Plaintiff suffered from Narcotic Bowel Syndrome" (Berk [Silverstein] affidavit, ¶ 86). In her amended complaint, plaintiff alleges that this testimony directly contradicted her medical records: "despite there being a complete absence of any medical records documenting that Plaintiff suffered from severe stomach aches following her taking pain medication" (amended complaint, ¶ 68). With respect to Dr. Gharibo, a pain doctor who solely treated musculoskeletal problems, and not GYN issues, he testified that Dr. Grenell overprescribed narcotics to Silverstein and Gregory violated Judiciary Law § 487 by intentionally misrepresenting the amount of pain medication plaintiff was taking (id., ¶ 70). Gregory falsely told the jury that "Plaintiff was a drug addict at a time that Opioid abuse was all over the news" (Berk [Silverstein] affidavit, ¶ 94).
Plaintiffs position is essentially that Nezhat, Drs. Herzog and Kavaler, and Dr. Gharibo testified falsely, all part of an intentional plan by Gregory. Specifically, Gregory had Drs. Herzog, Kavaler and Gharibo testify that plaintiff failed to follow Dr. Grenell's recommendation to see a cognitive behavioral therapist (amended complaint, ¶ 71). Gregory had the insurance records reflecting the name of plaintiffs cognitive behavioral therapist. Although plaintiff provided authorizations to Gregory for all of her relevant medical treatment, which established the truth of plaintiffs condition, in contravention of these documents, Gregory had these witnesses lie at trial. Further-more, Gregory intentionally misrepresented the amount of pain medication that plaintiff was taking and falsely told the jury that plaintiff was a drug addict (id., ¶ 81). But again, according to plaintiff, the medical records, including the updated pharmacy authorizations that Gregory received throughout the case, establish how much medication plaintiff was taking and how often the prescriptions were filled prior to trial. Plaintiff argues that Dr. Gharibo made false statements about plaintiffs addiction to opioids despite the information in the medical records.
Silverstein concludes her affidavit: "It is obvious that Gregory's deceit and collusion resulted in a jury verdict in favor of Nezhat and Mt Sinai and against Plaintiff despite Nezhat's appalling medical treatment of Plaintiff. Therefore, the jury's verdict should be set aside and the judgment reversed" (Berk [Silverstein] affidavit, ¶ 122).
Judiciary Law § 487 states, in relevant part, that:
"An attorney or counselor who: Is guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive the court or any party .... Is guilty of a misdemeanor, and in addition to the punishment prescribed therefor by the penal law, he forfeits to the party injured treble damages, to be recovered in a civil action."
Under Judicial Law § 487, a civil action may be maintained "by any party who is injured by an attorney's intentional deceit or collusion in New York on a court or on any party to litigation, and it provides for treble damages" (Amalfitano v Rosenberg, 533 F.3d 117, 123 [2d Cir 2008], citing Fields v Turner, 1 Mise 2d 679, 680-81 [Sup Ct, NY County 1955] ["holding that the predecessor [statute] to section 487 provides a remedy to any party injured by the deceit of an attorney representing a party to an action, not only that attorney's client"]). The Appellate Division, First Department has held that "deliberate misrepresentations," rather than "unfounded allegations" are actionable under Judiciary Law § 487 (Schnur v Balestriere, 208 A.D.3d 1117, 1118 [1st Dept 2022]; see also Tacopina v Kerik, 2016 WL 1268268, *6 [SD NY 2016] ["Under this threshold, an action grounded essentially on claims that an attorney made meritless or unfounded allegations in ... court proceedings would not be sufficient to make out a violation of § 487"] [internal quotation marks and citation omitted]).
"Relief under a cause of action based upon Judiciary Law § 487 'is not lightly given'" (Facebook, Inc. v DLA Piper LLP (US), 134 A.D.3d 610, 625 [1st Dept 2015] [internal citation omitted]). Allegations regarding an act of deceit or intent to deceive must be stated with particularity (see Armstrong v Blank Rome LLP, 126 A.D.3d 427, 427 [1st Dept 2015]). The claim will be dismissed if the allegations as to scienter are conclusory and factually insufficient (see Briarpatch Ltd., L.P. v Frankfurt Garbus Klein &Selz, P.C., 13 A.D.3d 296, 297-298 [1st Dept 2004], Iv denied 4 N.Y.3d 707 [2005]). In Nehmadi v Claude Castro &Assoc. PLLC (204 A.D.3d 544 [1st Dept 2022]), the First Department affirmed the trial court's grant of the defendants' motion to dismiss the plaintiffs Judiciary Law § 487 claim, finding that the plaintiff failed to allege "the elements of a cause of action under the statute, i.e., intentional deceit and damages proximately caused by the deceit" (id., at 544). Specifically, the court determined that the plaintiffs conclusory allegations did not support a finding of" 'egregious conduct or a chronic and extreme pattern of behavior' on the part of defendant attorney who allegedly caused the damages" (id., see also Napoli v James, 204 A.D.3d 413, 414 [1st Dept 2022]).
In Schnur, the First Department found that the Judiciary Law 487 claim should not have been dismissed as against defendant-attorney. In addressing the trial court's decision regarding the defendants' motion to dismiss, the court found that the plaintiffs sufficiently alleged that the allegations about them in the underlying action were not just unfounded but were intentionally false and "these allegations have not been conclusively refuted" (Schnur, 208 A.D.3d at 1118). The facts alleged by plaintiff support the § 487 claim included the attorney's "reiteration of allegations [the attorney] knew to be false in multiple filings, even after receipt of information refuting these allegations and even after being sanctioned" (id.). The court found these actions were sufficiently egregious to support the claim (id.; see Papa v 24 Caryl Ave. Realty' Co., 23 A.D.3d 361, 361-362 [2d Dept 2005] [deeming attorney's commencement of an action to foreclose on a mortgage to be an intentional deceit where the attorney knew of two prior judicial determinations that the mortgage was satisfied]).
The Court finds that plaintiffs allegations fail to state a claim that Gregory or Wilson Elser intended to deceive the court. Plaintiff does not allege that defendants falsified documents or made statements regarding matters particularly within their knowledge that were untrue. Instead, plaintiff alleges, and then argues, in a conclusory fashion that Gregory deceived the court by instigating false testimony by her clients and the expert physicians who testified on behalf of her clients' position. For example, plaintiff alleges that Gregory asked questions at trial knowing that they were not supported by the medical records or other legally admissible evidence and tainted the case, which resulted in the jurors rendering a fraudulent verdict in Nezhat's favor (pla aff, ¶ 6). Yet, plaintiff does not allege, nor is there any indication that there was any finding by the lower court that this testimony was false, or that Gregory had knowledge that the testimony was false. Further, plaintiff had the opportunity at trial to cross examine these witnesses, place her medical records in evidence and draw the jury's attention to those records. Plaintiff argues that Gregory was motivated to deceive the court in order to protect Mt. Sinai from liability, which is no more than the expected posture in our adversarial system (see Curry v Dollard, 52 A.D.3d 642 [2d Dept 2008] [granting defendants' motion to dismiss plaintiffs claim pursuant to Judiciary Law § 487, holding that because "defendants were advocating a reasonable interpretation of the QDRO most favorable to their clients their conduct cannot fairly be considered deceitful or fraudulent"]). Plaintiff alleges no communications between Gregory and these witnesses in which the witnesses were instructed or asked to testify in a false manner.
Even accepting all of plaintiffs allegations as true, this Court cannot find that there are sufficient facts alleged establishing that Gregory intentionally deceived the court. Plaintiff offers specific facts concerning the testimony of Nezhat and the expert defendants in the underlying action, and how the testimony was not consistent with facts in plaintiff s possession, or plaintiffs version of the facts. Yet, plaintiff offers no specific facts concerning either the falsity of the testimony, Gregory's intention to deceive, or his actual deception upon the court (see Sammy v Haupel, 170 A.D.3d 1224, 1225 [2d Dept 2019] [the court granted the defendants' motion to dismiss plaintiffs section 487 claim on the grounds that the plaintiff failed to set forth "with specificity," either in her complaint or in her papers opposing the motions, "how the defendants knew or should have known that she did not sign the release upon which they relied in asserting affirmative defenses on behalf of their clients" or that the defendants had "intended to deceive the court"]).
Here, plaintiff s conclusory statements that the testimony was false cannot substitute for facts establishing that the testimony was false, or facts supporting that Gregory knew or should have known that the testimony was false. That Nezhat's testimony during his deposition was not consistent with his testimony at trial does not support a finding that the defendants behaved in an egregious way, as there are many explanations for this inconsistency and no factual basis supporting plaintiffs claim of deception. Similarly, the fact that the expert witnesses' testimony on contested issues in the underlying action was not consistent with plaintiff s testimony, plaintiffs expectation of defendants' testimony or with plaintiff s medical records does not establish a deceit upon the court.
Libel Per Se
Defendants also move to dismiss this claim on the grounds that it is time barred, not pled with the specificity required by CPLR § 3016, and the statement at issue is an accurate summary of the arguments presented during a judicial proceeding, upon which a defense verdict was rendered.
In the amended complaint, plaintiff alleges that Gharibo falsely testified at trial that plaintiff was addicted to opioids prescribed by Grenell and that plaintiff s ingestion of too many opioids resulted in, among other things, severe bowel disfunction following Nezhat's surgery. Plaintiff further alleges that Gregory falsely stated that plaintiff developed an opioid addiction as the result of complications from her hysterectomy. Plaintiff argues that this statement falsely attributes an opioid addiction to her. Plaintiff argues that the initial 2019 posting on the website statement was republished on Gregory's Wilson Elser webpage in 2020 and 2021, and thus, her claim for libel is timely.
In order to establish libel, a plaintiff must prove: (1) a false and defamatory statement of facts; (2) regarding the plaintiff; (3) which is published to a third party and which (4) results in injury to plaintiff (see Banco Popular N. Am. v Lieberman, 75 A.D.3d 460, 462 [1st Dept 2010]). Certain statements are considered libelous per se, one of which is that the plaintiff has some loathsome disease. Here, plaintiff argues that the false statement made by Gregory is essentially that plaintiff has some loathsome disease. Libel per se has a one year statute of limitations (CPLR215[3]).
The alleged libelous statement: "Defense verdict in case alleging complications of laparoscopic hysterectomy resulted in opioid addiction" was posted under the heading "Robin N. Gregory Exemplar Trial Experience," in a list of other defense verdicts, on Wilson Elser's website in October 2019 (Roer aff, exhibit D). Defendants argue that this date is the only relevant date regarding the timeliness of plaintiff s 2022 lawsuit, and that the re-posting of this information on the firm website in 2020 or 2021 did not change the accrual date for plaintiffs libel claim.
According to defendants, modifications to a website do not constitute a republication such as to restart or alter the statute of limitations of an alleged defamatoiy statement. The court agrees. "The statute of limitations applicable to defamation claims is one year [CPLR 215(3)] and generally accrues on the date of the first publication" (Hoesten v Best, 34 A.D.3d 143, 150 [1st Dept 2006] [internal citations omitted]). Under the "single publication rule," which New York follows, the publication of a defamatory statement in a single issue of a newspaper or magazine, although widely circulated and distributed, constitutes one publication that gives rise to one cause of action, and the statute of limitations runs from the date of that publication (id.).
An exception to the single publication rule is the concept of "republication" (id. at 150). Republication restarts the time of accrual and the statute of limitations and "[i]t occurs upon a separate aggregate publication from the original, on a different occasion, which is not merely 'a delayed circulation of the original edition'" (id.). The republication exception has been applied most frequently where "the subsequent publication is intended to and actually reaches a new audience" (Firth v State of New York, 306 A.D.2d 666, 667 [3d Dept 2003] [internal quotation marks and citations omitted]).
In Martin v Daily News LP, the First Department held that the re-posting of the alleged defamatory information on the defendants' websites was not republication for the purpose of extending the statute of limitations (121 A.D.3d 90 [1st Dept 2014]). The court found that the defendants' inadvertent deletion of the alleged defamatory statements "during a changeover to a new computer content-management system, and their restoration" was not "geared" toward a new audience and was not a republication (id. at 104). The court found that "[h]ad the columns remained on the Daily News website as was intended, their presence there three years later would not have justified any additional action" (id.). This was so, according to the court, even though the plaintiff argued that the "new posting" reached a new audience, "observing that the restored columns included new hyperlinks to social media and networking sites" (id.; see Firth v State of New York, 98 N.Y.2d 365, 370-371 [2002] [holding that updating a website by adding new information that is not related to the subject alleged defamatory information does not constitute a republication which would retrigger the statute of limitations]).
The Court finds that the alleged libelous statement was initially published on the firm's website in 2019 and remained in the same form on the website over the following three years. Over the years defendants added other cases, unrelated to plaintiffs case to the list on the website, which did not amend, alter or add to the alleged libelous statement in any way, and, therefore, did not extend or modify the initial publication of the statement. Since the statute of limitations is one year, this libel claim, filed approximately three years later in 2022, is time barred and, therefore, dismissed.
CPLR 3025It is plaintiffs position that her proposed second amended complaint sets forth a valid cause of action of libel per se. A statement is defamatory per se if it "imputes to the plaintiff a loathsome disease" (Kasavana v Vela. 172 A.D.3d 1042, 1044 [2d Dept 2019], citing Liberman v Gelman, 80 N.Y.2d 429 [1992]). It is well settled that leave to amend the pleadings is to be freely granted, as long as there is no prejudice or surprise to the adversary, "unless the proposed amendment is palpably insufficient or patently devoid of merit" (Risk Control Assoc. Ins. Group v Maloof Lebowitz Connahan & Oleske, PC, 127 A.D.3d 500, 500 [1st Dept 2015] [internal quotation marks and citation omitted]; RBP of400 W42 St.. Inc. v 400 W. 42nd St. Realty Assoc., 27 A.D.3d 250, 250 [1st Dept 2006]). Because the court has determined that plaintiffs libel claim is time barred, the branch of plaintiffs motion to amend the complaint with respect to the libel claim is without merit and is denied.
CPLR 602Additionally, the Court declines to consolidate this action with the underlying action A motion pursuant to CPLR 602 (a) for consolidation should be granted where common questions of fact or law exist absent a showing of prejudice to a substantial right by the party opposing the motion (see Calle 2118 Flatbush Ave. Realty LLC, 209 A.D.3d 961, 963 [2d Dept 2022]). However, "a precondition for merging two or more actions is that each action should itself be viable, meaning that neither is confronted with a pending-and apparently meritorious-motion to dismiss" (see HSBC Bank USA, N.A. v Francis, 214 A.D.3d 58, 58 [2d Dept 2023]). Here, as the Court finds no merit to plaintiffs claims, and thereby dismisses the amended complaint in this action, the Court finds that plaintiffs motion to consolidate is moot.
Accordingly, it is hereby
ORDERED that defendants motion to dismiss is granted; it is further
ORDERED that plaintiffs cross-motion is denied; it is further
ORDERED that defendants shall serve a copy of this decision and order upon plaintiff, with notice of entry, within ten (10) days of entry.
This constitutes the decision and order of the Court.