Opinion
2014-03-25
Eric D. HADAR, et al., Plaintiffs–Respondents, v. Clay PIERCE, et al., Defendants, Michael Rosenbaum, Defendant–Appellant.
Graham Curtin, P.A., New York (Christopher J. Carey of counsel), for appellant. Kasowitz, Benson, Torres & Friedman LLP, New York (Gary W. Dunn of counsel), for respondents.
Graham Curtin, P.A., New York (Christopher J. Carey of counsel), for appellant. Kasowitz, Benson, Torres & Friedman LLP, New York (Gary W. Dunn of counsel), for respondents.
Order, Supreme Court, New York County (Eileen Bransten, J.), entered January 9, 2013, which, to the extent appealed from, denied defendant Michael Rosenbaum's motion to dismiss the complaint as against him, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment accordingly.
The second through fourth causes of action in the complaint are based on the purportedly false statements made in the course of preparing a complaint filed in a prior Supreme Court action and in the complaint itself. Those causes of action have been dismissed as against Rosenbaum's codefendants, lawyers who represented other parties in the underlying action, based on the judicial proceedings privilege, because the alleged false statementswere pertinent to that litigation and a Surrogate's Court proceeding, which this Court found were not shams ( Hadar v. Pierce, 111 A.D.3d 439, 974 N.Y.S.2d 399 [1st Dept.2013] [Hadar I ]; and see Pomerance v. McTiernan, 51 A.D.3d 526, 859 N.Y.S.2d 44 [1st Dept.2008] ). As we stated, the allegations that Eric Hadar (a defendant in the prior action and a plaintiff in the instant case) was allegedly falsely accused of mismanagement, self-dealing, financial improprieties, and other misconduct were pertinent to a prior action that charged him with a breach of his fiduciary duty by mismanaging corporate assets through nonfeasance, neglect, frequent absence and lapses of judgment, misuse of corporate assets, and overcharging of management fees ( see Hadar I, 111 A.D.3d at 439, 974 N.Y.S.2d 399).
The privilege also applies to the fifth cause of action, which alleges defamation. Plaintiffs contend that they pleaded distinct allegations as against Rosenbaum that are outside the scope of the privilege, but those allegations also pertain to conduct undertaken by Rosenbaum as counsel for Eric's father, Richard Hadar, in preparation for the litigation, and they are insufficient to distinguish the claims against him from those against the Patterson defendants ( see Hadar I, 111 A.D.3d at 439, 974 N.Y.S.2d 399;Art Capital Group, LLC v. Neuhaus, 70 A.D.3d 605, 896 N.Y.S.2d 35 [1st Dept.2010] ). Although Rosenbaum only argued that the defamation claim should be dismissed on the ground of the judicial proceedings privilege, our prior decision is controlling here, pursuant to the doctrine of stare decisis, and, under the circumstances, the issue can be raised for the first time on appeal ( see Chateau D'If Corp. v. City of New York, 219 A.D.2d 205, 209, 641 N.Y.S.2d 252 [1st Dept.1996],lv. denied88 N.Y.2d 811, 649 N.Y.S.2d 379, 672 N.E.2d 605 [1996] ). GONZALEZ, P.J., MAZZARELLI, RENWICK, FEINMAN, GISCHE, JJ., concur.