Opinion
6411 Index 158747/16
05-01-2018
Manuele VERDI, etc., Plaintiff–Respondent, v. Jeffrey DINOWITZ, etc., Defendant–Appellant.
Stroock & Stroock & Lavan LLP, New York (Charles G. Moerdler, Daniel Bertaccini and Pamela S. Takefman of counsel), for appellant. Conde & Glaser, L.L.P., New York (Ezra B. Glaser of counsel), for respondent.
Stroock & Stroock & Lavan LLP, New York (Charles G. Moerdler, Daniel Bertaccini and Pamela S. Takefman of counsel), for appellant.
Conde & Glaser, L.L.P., New York (Ezra B. Glaser of counsel), for respondent.
Tom, J.P., Andrias, Webber, Kahn, JJ.
Order, Supreme Court, New York County (Arlene P. Bluth, J.), entered October 2, 2017, which, to the extent appealed from as limited by the briefs, denied defendant's motion to dismiss plaintiff's causes of action for defamation and punitive damages, unanimously modified, on the law, to dismiss the seventh and ninth causes of action, and otherwise affirmed, without costs.
The motion court correctly determined that some of the complained-of statements were susceptible of a defamatory meaning. Considering the context of the statements, the court properly determined that they signaled that defendant was asserting a fact rather than opinion (see Gross v. New York Times Co., 82 N.Y.2d 146, 153, 603 N.Y.S.2d 813, 623 N.E.2d 1163 [1993] ).
Although the court struck some of the complained-of statements as responsive to allegations made against defendant in a separate lawsuit brought by plaintiff, the court properly rejected defendant's argument that all of the complained-of statements were privileged on that ground. Nevertheless, the court should have dismissed the seventh cause of action, since it contained only an allegation related to a responsive statement to that lawsuit, which statements the court had stricken.
Plaintiff's independent cause of action for punitive damages should also have been dismissed (see Steinberg v. Monasch, 85 A.D.2d 403, 405–406, 448 N.Y.S.2d 200 [1st Dept. 1982] ).
We have considered defendant's remaining arguments and find them unavailing.