Opinion
No. 571316/23
03-22-2024
William Wagner, Plaintiff-Appellant, v. Andy Park, Defendant-Respondent.
Unpublished Opinion
PRESENT: Tisch, J.P., James, Perez, JJ.
Plaintiff appeals from (1) an order of the Civil Court of the City of New York, New York County (Phaedra F. Perry, J.), entered February 22, 2022, which granted defendant's motion for summary judgment dismissing the complaint, and (2) that portion of an order (same court and Judge) entered August 11, 2022, which denied plaintiff's motion for leave to amend the complaint.
PER CURIAM.
Order (Phaedra F. Perry, J.), entered February 22, 2022, and order (Phaedra F. Perry, J.), entered August 11, 2022, insofar as appealed from, affirmed, without costs.
We sustain the grant of summary judgment dismissing plaintiff's claim for defamation. This claim, which arises from a customer review posted on the Yelp website regarding nonparty moving company "Urban Flat Rate," was not "of and concerning" the plaintiff William Wagner, who is not named or identified in the post (Three Amigos SJL Rest., Inc. v CBS News Inc., 28 N.Y.3d 82, 86-87 [2016]; see Matter of Soames v 2LS Consulting Eng'g, D.P.C., 187 A.D.3d 490, 492 [2020]). Nor did plaintiff sustain his burden of pleading and proving that the allegedly defamatory statement referred to him (see Lihong Dong v Ming Hai, 108 A.D.3d 599, 600 [2013]). In this connection, plaintiff's written statement submitted in opposition to the motion was unsigned, unsworn, and not affirmed to be true under penalties of perjury, and therefore devoid of probative value (see Yonkers Ave. Dodge, Inc. v BZ Results, LLC, 95 A.D.3d 774, 775 [2012]).
Plaintiff's subsequent motion was properly denied, since at the time plaintiff moved for leave to amend the caption, the original complaint had already been dismissed (see Sodhi v IAC/InterActive Corp., 216 A.D.3d 556, 557 [2023]). Accordingly, "there was no complaint left before the court to amend" (Tanner v Stack, 176 A.D.3d 429 [2019][internal quotation marks and citation omitted]).
I concur.