| Dickson v Slezak |
| 2010 NY Slip Op 03816 [73 AD3d 1249] |
| May 6, 2010 |
| Appellate Division, Third Department |
| Russell T. Dickson, Appellant-Respondent, v Polly Slezak et al.,Respondents, and Edward S. Lomanto et al., Respondents-Appellants, et al.,Defendants. |
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Stein, J. Cross appeals from an order of the Supreme Court (Aulisi, J.), entered May 7, 2009in Fulton County, which, among other things, granted certain defendants' motions to dismiss thecomplaint and/or for summary judgment.
Plaintiff previously held real estate broker licenses, individually and on behalf of hiscorporation.[FN1]After hearing rumors in early 2007 that other real estate brokers and attorneys were disparaginghim, plaintiff hired a licensed private investigator to confirm such rumors. The privateinvestigator, Allen Hills, posing as a potential seller of real estate interested in listing propertywith plaintiff or as a potential buyer interested in purchasing property through plaintiff, met withvarious individuals and taped his conversations with them. Plaintiff then commenced this actionagainst defendants alleging defamation, emotional distress and trauma[FN2]based on their statements to Hills.
Supreme Court granted motions to dismiss and/or for summary judgment made by variousdefendants and summarily dismissed the complaint as against all defendants pursuant to CPLR3212 (b). Plaintiff now appeals and defendants Edward S. Lomanto, Patricia Sherman and RealtyUSA-Capital District Agency, Inc. cross-appeal insofar as Supreme Court's order failed to granttheir requests for an award of sanctions and counsel fees.
We affirm. As the movants for summary judgment, defendants bear the initial burden ofdemonstrating their entitlement to judgment as a matter of law; only upon such showing does theburden shift to plaintiff to demonstrate the existence of a triable issue of fact (see Alvarez vProspect Hosp., 68 NY2d 320, 324, 326 [1986]; Zuckerman v City of New York, 49NY2d 557, 562 [1980]; Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1068[1979]).[FN3]A claim [*3]of defamation requires proof that the defendant made"a false statement, published that statement to a third party without privilege, with faultmeasured by at least a negligence standard, and the statement caused special damages orconstituted defamation per se" (Roche vClaverack Coop. Ins. Co., 59 AD3d 914, 916 [2009]; see Dillon v City of NewYork, 261 AD2d 34, 37-38 [1999]).
Here, defendants do not deny making the statements in question. However, such statementsare not actionable for a number of reasons. The majority of the statements made by defendantswere statements of opinion and, therefore, are deemed to be privileged (see Mann v Abel, 10 NY3d 271,276 [2008], cert denied 555 US —, 129 S Ct 1315 [2009]; Weiner vDoubleday & Co., 74 NY2d 586, 593 [1989], cert denied 495 US 930 [1990]; Versaci v Richie, 30 AD3d 648,648 [2006], lv denied 7 NY3d 710 [2006]). Furthermore, plaintiff's name did not becomepart of any conversation with defendants unless and until Hills inquired about plaintiff's ethicsand business methods. Only then did defendants make any comment with regard to plaintiff. Tothe extent the statements complained of were factual, they are subject to the complete defensethat, because plaintiff hired Hills to garner what he had every reason to anticipate would bedefamatory comments from defendants, he implicitly consented to the publication of suchcomments (see LeBreton v Weiss, 256 AD2d 47, 47 [1998]; Handlin v Burkhart,220 AD2d 559, 559 [1995]; Park v Lewis, 139 AD2d 961, 962 [1988]). Notably, there isno proof of publication of defamatory statements by these defendants to any other persons.
In addition, defendants demonstrated the existence of a qualified privilege in that they had agood faith bona fide interest in the statements they were making (see Curren v Carbonic Sys.,Inc., 58 AD3d 1104, 1106 [2009]; Sanderson v Bellevue Maternity Hosp., 259AD2d 888, 889 [1999]) because many of the questions asked by Hills, while posing as apurchaser or seller inquiring about real estate and legal services, required defendants to comparetheir services to services provided by plaintiff. Plaintiff failed to overcome the qualified privilegewith proof that defendants spoke with actual malice (see Sanderson v Bellevue MaternityHosp., 259 AD2d at 890). Plaintiff also failed to demonstrate the falsity of any of thestatements (see Roche v Claverack Coop. Ins. Co., 59 AD3d at 916). In fact, many of thestatements are consistent with the findings made by the Department of State.
Turning to the cross appeals, we disagree with the contentions of Lomanto, Sherman andRealty USA that Supreme Court's failure to address their motions for sanctions and counsel feeswas reversible error. A court's failure to specifically address a motion or a part thereof isequivalent to a denial (see Matter ofLongton v Village of Corinth, 49 AD3d 995, 995-996 [2008]; Pyptiuk vKramer, 295 AD2d 768, 769 n [2002]; Geloso v Monster, 289 AD2d 746, 747[2001], lv denied 98 NY2d 601 [2002]). Moreover, whether to award sanctions orcounsel fees is "a matter committed to the trial court's sound discretion" (Ireland v GEICO Corp., 2 AD3d917, 919 [2003]) based upon the specific facts and circumstances of the case (see 22NYCRR 130-1.1 [a], [b]; McMahon vThornton, 69 AD3d 1157, 1160 [2010]). On the record before us, [*4]while plaintiff's arguments are unconvincing, we cannot say that hisclaims are so clearly frivolous (see 22 NYCRR 130-1.1 [c]; Matter of GarettYY., 258 AD2d 702, 704 [1999]; Stern v Ofori-Okai, 246 AD2d 807, 809 [1998]) asto warrant a finding that Supreme Court's failure to award sanctions constituted an abuse ofdiscretion.
Plaintiff's remaining contentions have been reviewed and are either academic and/or withoutmerit.
Peters, J.P., Lahtinen, Malone Jr. and Garry, JJ., concur. Ordered that order is affirmed,without costs.
Footnote 1: Both licenses were the subjectof complaints brought by the Division of Licensing Services of the Department of State. The firstcomplaint resulted in the issuance of fines. The second resulted in the revocation of the licenses,although plaintiff maintains that he resigned and surrendered them prior to their revocation.
Footnote 2: Plaintiff has abandoned theclaims for emotional distress and trauma on appeal.
Footnote 3: We recognize that there aredifferent standards for reviewing a motion to dismiss and a motion for summary judgment(see CPLR 3026, 3211, 3212; Leon v Martinez, 84 NY2d 83, 87-88 [1994];Alvarez v Prospect Hosp., 68 NY2d at 324, 326; Zuckerman v City of NewYork, 49 NY2d at 562; Friends of Animals v Associated Fur Mfrs., 46 NY2d at1068). However, where, as here, at least one party has moved for summary judgment, SupremeCourt may search the record and grant summary judgment even as to parties who have notmoved for such relief (see CPLR 3212 [b]; Perkins v Kapsokefalos, 57 AD3d 1189, 1191 [2008], lvdenied 12 NY3d 705 [2009]; Schultes v Kane, 50 AD3d 1277, 1278 [2008]).