| Wilson v Erra |
| 2012 NY Slip Op 02487 [94 AD3d 756] |
| April 3, 2012 |
| Appellate Division, Second Department |
| Abdullah Wilson, Also Known as George Wilson,Appellant, v Roger Erra et al., Respondents. |
—[*1] Forchelli & Forchelli, Long Island City, N.Y. (Charles N. Forchelli of counsel), forrespondents.
In an action, inter alia, to recover damages for defamation, the plaintiff appeals from an orderof the Supreme Court, Queens County (Satterfield, J.), entered January 19, 2011, which grantedthe defendants' motion for summary judgment dismissing the complaint and denied, as academic,his cross motion for leave to amend the complaint.
Ordered that the order is affirmed, with costs.
In December 2009, the plaintiff commenced this action against the defendant Roger Erra andhis business, the defendant Erra's Scrap Metal, alleging defamation and intentional infliction ofemotional distress arising out of a criminal proceeding, wherein Erra testified against theplaintiff. The Supreme Court granted the defendants' motion for summary judgment dismissingthe complaint as time-barred and on the additional ground that the complaint failed to state acause of action because the alleged defamatory statements were absolutely privileged. Moreover,the Supreme Court denied, as academic, the plaintiff's cross motion for leave to amend thecomplaint. The plaintiff appeals. We affirm.
The causes of action sounding in defamation and intentional infliction of emotional distressare governed by a one-year statute of limitations (see CPLR 215 [3]; Dinerman v City of N.Y. Admin. forChildren's Servs., 50 AD3d 1087, 1088 [2008]). A cause of action alleging defamationaccrues at the time the alleged statements are originally uttered (see Gigante v Arbucci, 34 AD3d425, 426 [2006]; Teneriello v Travelers Cos., 226 AD2d 1137 [1996]). A cause ofaction alleging intentional infliction of emotional distress accrues on the date of injury (see Passucci v Home Depot, Inc., 67AD3d 1470, 1471 [2009]). Here, the alleged defamatory statements were uttered, and anyinjury to the plaintiff occurred, in September 1995 when Erra testified against the plaintiff at acriminal trial. Since this action was not commenced until 14 years later in December 2009, theSupreme Court properly granted the defendants' motion for summary judgment dismissing thecomplaint as time-barred (see Giglio v Delesparo, 46 AD2d 928 [1974]).
The Supreme Court properly determined that an award of summary judgment to thedefendants was warranted on the additional ground that the alleged defamatory statements byErra were absolutely privileged. "Statements made by parties, attorneys, and witnesses in thecourse of [*2]a judicial or quasi-judicial proceeding areabsolutely privileged, notwithstanding the motive with which they are made, so long as they arematerial and pertinent to the issue to be resolved in the proceeding" (Kilkenny v Law Off. of Cushner & Garvey,LLP, 76 AD3d 512, 513 [2010]; see Toker v Pollak, 44 NY2d 211, 219 [1978];Matter of Gaeta v Incorporated Vil. ofGarden City, 72 AD3d 683, 684 [2010]). To the extent the plaintiff contends that Erra'sreport of the underlying incident to the police in 1992 was defamatory, the defendants made aprima facie showing that such reports are protected by a qualified privilege, and the plaintifffailed to raise a triable issue of fact as to whether the 1992 communications were motivatedsolely by malice (see Toker v Pollak, 44 NY2d at 218; Levy v Grandone, 14 AD3d 660,662 [2005]).
The plaintiff's remaining contentions either are without merit or have been renderedacademic by our determination. Dillon, J.P., Florio, Austin and Roman, JJ., concur.