| Lancaster v Town of E. Hampton |
| 2008 NY Slip Op 07094 [54 AD3d 906] |
| September 23, 2008 |
| Appellate Division, Second Department |
| Darlene Lancaster, Respondent, v Town of East Hamptonet al., Defendants, and Tiffany Keckeisen, Appellant. |
—[*1] Warshaw, Burstein, Cohen, Schlesinger & Kuh, LLP, New York, N.Y. (Martin R. Lee andAvi Lew of counsel), for respondent.
In an action, inter alia, to recover damages for age discrimination, defamation, and primafacie tort, the defendant Tiffany Keckeisen appeals from an order of the Supreme Court, SuffolkCounty (Pines, J.) dated November 28, 2007, which denied her motion pursuant to CPLR 3211 todismiss the fourth and fifth causes of action to recover damages for defamation and prima facietort, respectively.
Ordered that the order is modified, on the law, by deleting the provision thereof denying thatbranch of the appellant's motion which was to dismiss the fourth and fifth causes of actioninsofar as asserted against her, and substituting therefor a provision granting that branch of themotion; as so modified, the order is affirmed, without costs or disbursements.
The defamation cause of action insofar as asserted against the appellant in an amendedcomplaint, which added her as a defendant to the plaintiff's existing action against, among others,the Town of East Hampton, related back to the date of the filing of the original complaint inDecember 2004 (see Key Intl. Mfg. v Morse/Diesel, Inc., 142 AD2d 448 [1988]).However, as asserted by the appellant in her motion to dismiss the defamation cause of action,the last statement that she allegedly made about the plaintiff was in October 2003. Thus, theaction was initiated two months past the one-year statute of limitations for defamation(see CPLR 215 [3]).
The Supreme Court erred in refusing to consider the appellant's statute of limitationsargument on the ground that it had been determined by the court on a previous motion for leaveto amend the complaint. The motion for leave to amend the complaint had not been served uponthe [*2]appellant, who was not at that time a party to thelitigation. As such, she had no opportunity to raise her separate statute of limitations' defense tothe motion for leave to amend.
The appellant's affidavit in support of her motion to dismiss, asserting that no defamatorystatements were made within the one-year statute of limitations' period, was not refuted by theplaintiff. The plaintiff did not assert in her affidavit in opposition pursuant to CPLR 3211 (d) thatfacts unavailable to her, essential to justify opposition, may exist but could not then be stated.The plaintiff asserted that the alleged defamatory remarks in issue involved the appellant's falsereports to the Town and its agents. However, the plaintiff did not allege that any of the remarkswere made by the appellant after the plaintiff was fired in December 2003. The plaintiff did notrequest discovery from the appellant as to whether any defamatory statements were subsequentlymade, and she did not assert that she attempted to discover this information during depositions ofthe original defendants to this action.
The cause of action sounding in prima facie tort also must be dismissed insofar as assertedagainst the appellant. The plaintiff's pleadings set forth allegations of pure defamation. "[P]rimafacie tort was designed to provide a remedy for intentional and malicious actions that cause harmand for which no traditional tort provides a remedy, and not to provide a 'catch all' alternative forevery cause of action which cannot stand on its legs" (Bassim v Hassett, 184 AD2d 908,910 [1992] [internal quotation marks omitted]).
Moreover, the plaintiff did not plead that the appellant's alleged defamatory statements weremotivated solely by disinterested malevolence (see Simaee v Levi, 22 AD3d 559 [2005]; Kevin Spence & Sons v Boar's HeadProvisions Co., 5 AD3d 352 [2004]; Matter of Entertainment Partners Group vDavis, 198 AD2d 63 [1993]).
The parties' remaining contentions are without merit. Skelos, J.P., Covello, Leventhal andBelen, JJ., concur. [See 2007 NY Slip Op 34019(U).]