Opinion
No. 2024-51136 Index No. 656108/2023
07-29-2024
Craig Solomon and Diane Solomon, Plaintiffs, v. Glenn Bradford Fine Jewelry Corp and Glenn Bradford, Defendants.
Greenberg Traurig, LLP, New York, NY (Steven Sinatra of counsel), for plaintiffs. Laurence J. Silberman, P.C., New York, NY (Laurence J. Silberman of counsel), for defendants.
Unpublished Opinion
Greenberg Traurig, LLP, New York, NY (Steven Sinatra of counsel), for plaintiffs.
Laurence J. Silberman, P.C., New York, NY (Laurence J. Silberman of counsel), for defendants.
Gerald Lebovits, J.
This is an action brought by plaintiffs, Craig Solomon and Diane Solomon, against defendants, Glenn Bradford Fine Jewelry Corp. ("GBFJ") and Glenn Bradford, for damages resulting from an allegedly fraudulent transaction over watches.
Plaintiffs bought three vintage watches from GBFJ in 2022. Mr. Bradford is GBFJ's principal. Plaintiffs allege that the watches purchased are not authentic as represented to them by Bradford prior to the purchase. Plaintiffs demanded a refund, which GBFJ denied. Plaintiffs have brought claims against defendants for breach of contract, breach of express warranty, and fraud, among other claims. Defendants have counterclaimed for defamation and an award of attorney fees.
Plaintiffs now move to dismiss defendants' counterclaims under CPLR 3211 (a) (7). The motion is granted.
DISCUSSION
A court considering a CPLR 3211 (a) (7) motion to dismiss must interpret the pleadings generously, assuming that the alleged facts are true and granting the non-movant every possible favorable inference. (E.g. Besen v Farhadian, 195 A.D.3d 548, 549 [1st Dept 2021].)
Defendants contend in their counterclaim that the complaint's allegations are "false and/or manufactured by Plaintiff to cause Defendants to suffer financial harm and injury to their reputation." (NYSCEF Doc. No. 4 at 3.) But New York courts have long recognized an absolute privilege for statements made in the course of judicial proceedings. (See e.g. Park Knoll Assoc. v Schmidt, 59 N.Y.2d 205, 209 [1983].) The absolute privilege "affords a speaker or writer immunity from liability for an otherwise defamatory statement to which the privilege applies." (Frechtman v Gutterman, 115 A.D.3d 102, 106 [1st Dept 2014].) Defendants allege only that the statements plaintiffs made in the complaint are defamatory. This argument is meritless; those statements are privileged. (See Manhattan Sports Restaurants of Am., LLC v Lieu, 146 A.D.3d 727, 727 [1st Dept 2017] [finding that allegedly defamatory statements in a complaint made during a judicial proceeding are "absolutely privileged"].)
Bradford's affidavit opposing the motion introduces a theory of liability that defendants did not assert in their counterclaims. Bradford does not in his affidavit dispute that plaintiff's allegations in the complaint are absolutely privileged. He argues instead that plaintiffs also made false statements before the commencement of the judicial proceedings. (NYSCEF Doc. No. 13 at 2.) This new theory is rejected. It is not alleged in defendants' counterclaim.
Even if defendants could amend their defamation counterclaim to include this new allegation, the counterclaim still would be meritless: Defendants do not specify what defamatory words plaintiffs (assertedly) uttered.
To state a claim of defamation, "the particular words complained of" must be "set forth in the complaint"; and the complaint "also must allege the time, place and manner of the false statement and specify to whom it was made." (Dillon v City of New York, 261A.D.2d 34, 38 [1st Dept 1999].) Defendants fail to meet these requirements. They do not identify any nonprivileged false statement that plaintiffs made, when it was made, or to whom. At most, defendants allege that plaintiffs "have told numerous individuals that Defendants were fraudulent businesspeople who sell defective products. (NYSCEF No. 17 at 3-4.) But they do not introduce any details about the exact statements that plaintiffs allegedly made. This allegation, without more, is insufficient. The counterclaim is dismissed.
Defendants' second counterclaim, seeking an award of attorney fees, is subject to dismissal because a party "may not maintain a separate cause of action for attorney fees." (Pier 59 Studios L.P. v Chelsea Piers L.P., 27 A.D.3d 217, 217 [1st Dept 2006].) Fees are instead recoverable only as an element of damages-and even then, only if an award of fees is authorized by statute, regulation, or contract. (See TAG 380, LLC v ComMet 380, Inc., 10 N.Y.3d 507, 515 [2008].) Defendants do not identify a statutory, regulatory, or contractual basis under which this court could properly award fees.
Accordingly, it is
ORDERED that plaintiffs' motion to dismiss defendants' counterclaims is granted, and the counterclaims are dismissed; and it is further
ORDERED that the balance of the claims in the action are severed and shall continue; and it is further
ORDERED that plaintiffs serve a copy of this order with notice of its entry on all parties.