Opinion
12584/2004.
Decided April 7, 2006.
Upon the foregoing papers, the application by Order to Show Cause of defendant ANN MARIE DICEMBRE for renewal and/or reargument of a prior summary judgment motion is granted, and upon such reargument, defendants' motion for summary judgment is granted.
Plaintiff MICHAEL DICEMBRE commenced this action for slander to recover damages against his ex-wife, defendant ANN MARIE DICEMBRE, who is alleged to have spoken maliciously of him to a third-party. It is alleged that the words of MRS. DICEMBRE were false and defamatory, and that she spoke of MR. DICEMBRE willfully and maliciously and with the intent to damage his good name. In particular, plaintiff alleges that he was a prospective purchaser of a cooperative apartment in the same building where his ex-wife lives, and that MRS. DICEMBRE told the President of the Board of Directors at Sea Cliff Towers, Mr. Harry Hicks, that "plaintiff beat her, threatened her life, and would kill her if he moved in". According to plaintiff, his application to purchase an apartment at Sea Cliff Towers was denied as a result of these slanderous statements.
Plaintiff has withdrawn his cause of action for tortious interference with contract.
On or about August 8, 2005, defendant moved for summary judgment dismissing the complaint and directing an immediate trial on her counterclaims, which included costs and attorney's fees incurred as a result of plaintiff's frivolous lawsuit. In support, MRS. DICEMBRE submitted, inter alia, a copy of the deposition testimony of Mr. Hicks in order to negate plaintiff's claim of slander.
This Court denied the motion as untimely since it was not made within 60 days of the filing of the Note of Issue and MRS. DICEMBRE had failed to show good cause for the delay in filing her motion.
MRS. DICEMBRE now seeks reargument and/or renewal of her motion, contending, in part, that the Court overlooked or misapprehended matters of fact and law in determining the prior motion. As is applicable, MRS. DICEMBRE contends that the papers originally before the Court revealed that the EBT of Mr. Hicks had not been held until June 21, 2005, and therefore, that the Court had before it sufficient information to determine that the late filing was compelled as the result of the timing of this EBT and the return of the transcript. MRS. DICEMBRE also contends that plaintiff made no objection to the timeliness of the summary judgment motion in his opposition.
In support of renewal, MRS. DICEMBRE notes that the Court was not previously made aware of the fact that it was plaintiff's attorney who was responsible for the late scheduling of Mr. Hicks' EBT, and that the transcript of this EBT was not received by defendant until July 25, 2005, i.e., almost 60 days after the Note of Issue was filed.
In opposition, plaintiff contends that MRS. DICEMBRE has failed to set forth any new facts or law which could not have been argued when she first moved for summary judgment. According to plaintiff, the EBT of Mr. Hicks was never the central theme of MRS. DICEMBRE's defense in this matter, as her initial affirmation in support of summary judgment does not even mention the testimony of Mr. Hicks. Rather, her argument was focused on the claim that plaintiff's lawsuit was frivolous, thereby demonstrating both his bad faith and disregard for the Court, and that his allegations are unbelievable and conclusory. Plaintiff also notes that fully half of defendant's summary judgment motion was devoted to the details of her application for attorney's fees. Accordingly, plaintiff urges this Court to find that defendant's motion was not delayed because of the Hicks EBT and, therefore, that good cause has not been shown for the belated motion.
In reply, MRS. DICEMBRE points out that the basis of plaintiff's claim of slander are the words allegedly spoken by her to Mr. Hicks, and that the latter's testimony was therefore essential to establish her defense, namely, that she did not make the statements attributed to her. Accordingly, it is argued that the testimony of Mr. Hicks, whose entire EBT transcript was attached as an exhibit to the original motion, constituted the core of her defense.
Defendant's motion for renewal is denied. On these papers, defendant has failed to offer any new facts that were unavailable to her at the time of the original motion ( see CPLR 2221[e]; McNeil v. Dixon, 9 AD3d 481 [2nd Dept 2004]). Accordingly, the motion is correctly denominated as one for reargument only ( see Inzerillo v. City of New York, 287 AD2d 599 [2nd Dept 2001]).
Defendant's motion for reargument is granted.
It is well settled under CPLR 2221(d)(2) that a motion for leave to reargue shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion. Here, MRS. DICEMBRE has sufficiently demonstrated that the Court overlooked a relevant fact in deciding her prior summary judgment motion, e.g., the post-note scheduling of the deposition of Harry Hicks, and that the foregoing constitutes good cause for the delay in making the motion ( see Brill v. City of New York, 2 NY3d 648). More importantly, it cannot be disputed that the complaint is based on statements allegedly made by defendant to Mr. Hicks and, therefore, his testimony is critical both to plaintiff's claims and the defense of this action.
Upon reargument, it is the opinion of this Court that MRS. DICEMBRE is entitled to summary judgment dismissing the complaint against her.
Plaintiff claims that while he was attempting to purchase a cooperative apartment in the same building where his ex-wife was already living, she spoke maliciously and falsely about him to the president of the cooperative's board of directors, i.e., Harry Hicks, thereby damaging his good name and causing his application to be denied. In particular, plaintiff alleges that MRS. DICEMBRE told Mr. Hicks "Michael Dicembre beats me, he stalks me, he has threatened my life and he will kill me if he moves in". Defendant denies making these statements, and contends that anything she did say to Mr. Hicks was true and not made with the intention to injure him.
In moving for summary judgment, MRS. DICEMBRE detailed the tumultuous history of her relationship with plaintiff, which ended in divorce and the entry of an Order of Protection against him on or about May 21, 2002. According to MRS. DICEMBRE, Mr. Hicks' EBT testimony indicates that his initial conversation with her occurred in the lobby of the building, after he approached her knowing that there was a prospective purchaser with the same last name. He asked her if she knew the applicant, to which she simply said yes. His testimony further indicates that MRS. DICEMBRE subsequently came to the co-op office and told Mr. Hicks that she had an Order of Protection against MR. DICEMBRE and was very nervous about his moving into the building. She then gave Mr. Hicks her copy of the Order of Protection, and he told her that he would talk to his attorney. When Mr. Hicks noticed that the order had expired, he allegedly asked MRS. DICEMBRE if she had a current order, and she told him that she was trying to get one. Finally, Mr. Hicks testified that MRS. DICEMBRE never stated that MR. DICEMBRE had threatened her with physical violence; that he never asked her any such question; and that her she never volunteered any such information.
In opposition, plaintiff contended that summary judgment should be denied as there are material issues of fact regarding the nature of the conversation between defendant and Mr. Hicks, and whether she told him that the Order of Protection had expired. The Court disagrees.
On a motion for summary judgment, the role of the court is not to determine credibility, but whether a factual issue, actually or arguably, exists ( see Capelin Assocs. v. Globe Mfg. Corp., 34 NY2d 338, 341). Once the moving party has demonstrated its prima facie entitlement to judgment as a matter of law, it is incumbent on the opposing party to adduce proof in admissible form sufficient to require a trial of the material questions of fact on which its opposition rests ( see Zuckerman v. City of New York, 49 NY2d 557, 562). However, only a bona fide issue raised by evidentiary facts will suffice to defeat summary judgment; a purported issue based on conclusory or irrelevant allegations will not do (Rotuba v. Extruders v. Ceppos. 46 NY2d 223, 231).
Here, it is the opinion of this Court that the unrefuted EBT testimony of Mr. Hicks is sufficient to establish a prima facie defense to plaintiff's allegations of slander, and that the opposing papers fail to raise a triable issue of fact regarding the nature of the conversation between defendant and Mr. Hicks.
In his EBT testimony, Mr. Hicks clearly details his conversations with MRS. DICEMBRE and the sequence of events which transpired after he learned that she was acquainted with plaintiff. Although there is no testimony reflecting that defendant told Mr. Hicks that the Order of Protection had expired, it is clear from his testimony that he became aware of same as soon as he looked at the order, and that he told defendant so. In the brief conversation which ensued, she explained to Mr. Hicks that her ex-husband had come to her apartment when she was living in Brooklyn, and that she had moved to Staten Island as a result. However, it now appeared that he had discovered where she was living. When Mr. Hicks asked MRS. DICEMBRE what plaintiff did for a living, she told him that he was a karate teacher and a bus driver.
Mr. Hicks then testified that the last time he spoke with MRS. DICEMBRE regarding plaintiff was when he called her to inquire whether a new Order of Protection had been obtained. According to Mr. Hicks, defendant told him that she could not obtain a new order because there had been no further incidents within the past year. Defendant also told him that she was very nervous about plaintiff moving into the building; that she could neither sleep nor eat; and that if he moved into the building, she would have to leave. Defendant made no allegations of other incidents or violence on the part of MR. DICEMBRE, and did not volunteer any further information about him.
According to Mr. Hicks, the cooperative board denied MR. DICEMBRE's application on August 3, 2004, primarily because of the order of protection and MRS. DICEMBRE's fear of her ex-husband; the board did not want to get involved in their domestic dispute.
Contrary to plaintiff's contentions, there is nothing in Mr. Hicks' deposition testimony to generate a triable issue of material fact regarding the nature of his conversations with defendant. In fact, the EBT testimony of this disinterested witness establishes that MRS. DICEMBRE never uttered the defamatory words attributed to her. Also, there is nothing in Mr. Hicks' EBT testimony which would indicate that MRS. DICEMBRE attempted to deceive him by hiding the fact that her Order of Protection had expired. Here, the expiration date was plainly indicated on the Order itself, a fact which was known when the co-op board made its determination to deny plaintiff's application. Also known by this time was the fact that MRS. DICEMBRE could not obtain a new order because there had been no further incidents with plaintiff during the past year. In the absence of any proof that any of this testimony may be untrue, plaintiff has failed to meet his burden of producing sufficient evidence to raise a material issue of fact regarding his claims of defamation.
The balance of defendant's motion is denied. Defendant has failed to demonstrate her right to an immediate trial on her counterclaims.
Accordingly, it is
ORDERED that defendant's motion for reargument is granted, and upon reargument, her motion for summary judgment is granted and the complaint is hereby severed and dismissed; and it is further
ORDERED that the balance of the motion is denied; and it is further
ORDERED that the Clerk shall enter judgment accordingly.