Opinion
570876/03.
Decided January 12, 2005.
Plaintiff appeals from an order of the Civil Court, New York County, entered October 17, 2003 (Donna G. Recant, J.) which, in effect, denied her motion to renew a prior order of the same court and Judge which had granted a motion by defendant for summary judgment dismissing the complaint and for partial summary judgment on the liability aspect of defendant's defamation counterclaim.
Order entered October 17, 2003 (Donna G. Recant, J.) modified to grant plaintiff's motion to renew the court's order of April 4, 2003, and, upon renewal, to deny defendant's motion for partial summary judgment on her defamation counterclaim.
PRESENT: HON. WILLIAM P. McCOOE, J.P., HON. WILLIAM J. DAVIS, HON. PHYLLIS GANGEL-JACOB, Justices.
Summary judgment dismissal of plaintiff's cause of action for defamation was proper, since plaintiff failed to set forth the statements attributed to defendant with the requisite particularity (CPLR 3016 [a]; see Ramos v. Madison Sq. Garden Corp., 257 AD2d 492, 493) or to offer any evidentiary proof that the statements given by defendant to the police were actuated by malice, as was required to overcome the qualified privilege to which the statements were subject ( see Russ v. State Employees Fed. Credit Union, 298 AD2d 791, 793).
A summary disposition of the defendant's own defamation counterclaim is unwarranted, however, defendant having failed to conclusively demonstrate that the statements allegedly made by plaintiff were published to any third parties ( see 164 Mulberry St. Corp. v. Columbia Univ., 4 AD3d 49, 58, lv dismissed 2 NY3d 793) or, if published, that the statements — indicating, inter alia, that defendant was having "an affair" with plaintiff's fiancee — constituted slander per se ( compare Meyer v. Somlo, 105 AD2d 1007, with Dellefave v. Access Temporaries, Inc., 2001 WL 25745, at 4, n 1 [SDNY 2001]).
This constitutes the decision and order of the Court.