| BCRE 230 Riverside LLC v Fuchs |
| 2009 NY Slip Op 01311 [59 AD3d 282] |
| February 19, 2009 |
| Appellate Division, First Department |
| BCRE 230 Riverside LLC, Respondent, v Erich Fuchs,Appellant. |
—[*1] O'Connor, O'Connor, Hintz & Deveney, LLP, Melville (Aimee D. Drexler of counsel), forrespondent.
Order, Supreme Court, New York County (Walter B. Tolub, J.), entered November 9, 2007,which granted plaintiff's motion to vacate a prior order that had permitted defendant on default toamend its counterclaims, and upon reconsideration dismissed those counterclaims, and order,same court and Justice, entered January 18, 2008, which denied defendant's motion to renew theNovember 9, 2007 order with respect to the defamation counterclaim, unanimously affirmed,without costs.
Defendant's proposed amplified counterclaim for defamation and new counterclaims forinjurious falsehood and malicious prosecution were "palpably insufficient as a matter of law"(Davis & Davis v Morson, 286 AD2d 584, 585 [2001]). The court thus properly denieddefendant's motion for leave to amend.
The counterclaim for defamation, in both its original and amplified form, was deficient on itsface because it failed to meet the pleading requirements of CPLR 3016 (a). In now alleging that"plaintiff and/or their agents or attorneys" stated to New York Post reporters false anddefamatory "words to the effect" that defendant had been tossing urine and other fluids andobjects from the terrace of his apartment onto construction workers below, and that as a result,plaintiff caused an article to be written repeating the false and defamatory words, the proposedamended counterclaim failed to state with particularity what the allegedly false statements wereand who made them. Defendant's use of the qualifying "words to the effect," as well as hisreliance on the text of a third party's paraphrasing of plaintiff's allegedly false statements, madethese allegations insufficient to satisfy the particularity requirement of CPLR 3016 (a) andrendered the proposed amended counterclaim defective (Ramos v Madison Sq. GardenCorp., 257 AD2d 492, 493 [1999]; Murganti v Weber, 248 AD2d 208 [1998]).Defendant's contention that he is entitled to discovery to ascertain the particulars that are lackingis unavailing. Dismissal of a claim need not await disclosure where it is "otherwise deficient infailing to allege in haec verba the particular defamatory words" (Cerick v MTB Bank,240 AD2d 274 [1997]), and is based instead on a paraphrased version (see Le Sannom Bldg.Corp. v Dudek, 177 AD2d 390, 391 [1991]).[*2]
We also find no merit to defendant's proposedcounterclaim for injurious falsehood. As with the defamation counterclaim, the proposedinjurious falsehood counterclaim fails to specify with particularity the alleged falsehood utteredby plaintiff (see Alexander & Alexander of N.Y. v Fritzen, 114 AD2d 814, 816-817[1985]). Moreover, the court's findings of fact in the earlier preliminary injunction hearing makeclear that plaintiff's representatives had good reason to believe it was defendant who wasdumping fluids and throwing debris on the construction workers. Accordingly, the circumstancesunder which the allegedly false statements were made to the New York Post reporters, if in factmade by plaintiff's representatives, flatly contradict defendant's contention that any suchstatements were made with intentional malice or with reckless disregard for the consequencesflowing therefrom (see Gilliam vRichard M. Greenspan, P.C., 17 AD3d 634, 635 [2005]). Defendant's allegation ofspecial damages, a necessary element of an action for injurious falsehood that must be pleadedwith particularity (see Wasserman v Maimonides Med. Ctr., 268 AD2d 425, 426 [2000]),is wholly inadequate because it fails to allege specific injury to legally protected propertyinterests (see Cunningham v Hagedorn, 72 AD2d 702, 704 [1979]). The allegation thatdefendant has incurred legal fees does not satisfy this requirement (see Rall v Hellman,284 AD2d 113, 114 [2001]).
We similarly reject defendant's argument that the court erred in denying him leave to add acounterclaim for malicious prosecution. In addition to failing on the elements of actual maliceand special damages for the reasons set forth above, defendant's proposed counterclaim failssufficiently to allege facts tending to show that plaintiff instituted the prior civil proceedingsagainst him without probable cause (see Burt v Smith, 181 NY 1 [1905], writdismissed 203 US 129 [1906];Rossi v Attanasio, 48 AD3d 1025, 1028-1029 [2008]). As the testimony from plaintiff'switnesses at the preliminary injunction hearing made clear, plaintiff had reasonable cause tobelieve that defendant had committed the acts complained of against the construction workers,causing it to seek an injunction and to evict defendant. Plaintiff thus clearly had knowledge offacts, actual or apparent, strong enough to justify a reasonable person in believing he had lawfulgrounds for prosecuting defendant in the manner complained of (see Burt, 181 NY at 5).
Finally, the court properly denied defendant's motion to renew with respect to the proposedamended counterclaim for defamation. Contrary to defendant's contention, the fact he had failedto apprise the court of having served the Post reporters with subpoenas was not "new" becausethe court had previously been aware of this through defendant's submissions in connection withhis original motion for leave to amend and in opposition to plaintiff's motion to vacate. To theextent defendant argues that the court overlooked this fact in considering plaintiff's motion tovacate, such an argument is consistent with a motion for reargument, the denial of which is notappealable (see Siegel v Monsey NewSq. Trails Corp., 40 AD3d 960, 962 [2007]). In any event, even if the facts relied onwere "new facts" properly considered on a motion to renew, they would not have changed theprior determination because the failure of defendant to avail himself of the discovery devices toascertain the necessary facts to support his defamation counterclaim was but one of severalinfirmities that invalidated his defamation counterclaim (see Peycke v Newport Media Acquisition II, Inc., 40 AD3d 722[2007]).[*3]
We have considered defendant's remaining contentionsand find them unavailing. Concur—Tom, J.P., Moskowitz, Acosta and Freedman, JJ.[See 2007 NY Slip Op 33686(U).]