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Rubin v. Napoli Bern Ripka Shkolnik, LLP

151 A.D.3d 603 Court N.Y. App. Div. Decision date 2017-06-20 English

Judges Concur — Friedman, J.P., Renwick, Manzanet-Daniels, Kapnick and Gesmer, JJ.

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p. 603
Denise A. Rubin, Respondent, v Napoli Bern Ripka Shkolnik, LLP, et al., Defendants, and Paul J. Napoli, Appellant.
[58 NYS3d 320]
p. 604
Order, Supreme Court, New York County (Cynthia S. Kern, J.), entered September 30, 2016, which, to the extent appealed from, denied the individual defendant’s motion to amend his answer insofar as he sought to assert counterclaims for defamation and defamation per se, unanimously affirmed, with costs.

Because the notice of appeal was limited to “the defamation and defamation per se causes of action,” we cannot consider defendant’s arguments relating to the motion court’s denial of leave to amend his answer to assert counterclaims for intentional and negligent infliction of emotional distress (see D’Mel & Assoc. v Athco, Inc., 105 AD3d 451 , 453 [1st Dept 2013]).

As to the proposed defamation counterclaims, defendant initially sought to assert them as standalone counterclaims within the one-year limitations period. However, the counterclaims were dismissed as procedurally improper, since they were not appended to an answer (see CPLR 3011; Newman v Newman, 245 AD2d 353 , 354 [2d Dept 1997]). Because the motion for leave to amend was made less than six months later, the proposed counterclaims could be saved by CPLR 205 (a)’s six-month grace period (see George v Mt. Sinai Hosp., 47 NY2d 170 , 177-179 [1979]; Weksler v Weksler, 140 AD3d 491 , 493 [1st Dept 2016]).

Nevertheless, in the record before us, defendant fails to state with particularity the allegedly defamatory statements, and therefore his fourth and fifth counterclaims are defective as a matter of law (CPLR 3016 [a] [“the particular words complained of shall be set forth in the complaint”]; Dillon v City of New York, 261 AD2d 34 , 40 [1999]).[1] To the extent that defendant’s counterclaim sets forth some of the words complained of, they consist largely of verbatim quotations from the complaint, and thus are “absolutely privileged and cannot form the basis of a defamation action” (Flomenhaft v Finkelstein, 127 AD3d 634 , 637 [1st Dept 2015]; see Tacopina v O’Keeffe, 645 Fed Appx 7 , 8 [2d Cir 2016]).

We have considered defendant’s remaining arguments and find them unavailing.

Concur — Friedman, J.P., Renwick, Manzanet-Daniels, Kapnick and Gesmer, JJ.

* Defendant’s counterclaim refers to exhibits that are not in the record before us. It is not clear whether they were attached to the papers before the motion court.

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