Drapkin v. Zingale

148 A.D.2d 660, 540 N.Y.S.2d 202, 1989 N.Y. App. Div. LEXIS 4216

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 27, 1989
• Status: Published

Opinion

In an action, inter alia, to recover damages for slander, the defendant appeals from an order of the Supreme Court, Suffolk County (Cohalan, J.), entered May 25, 1988, which denied his motion to dismiss the amended complaint for failure to state a cause of action or, in the alternative, to strike certain portions of the amended complaint as scandalous and prejudicial.

Ordered that the appeal from so much of the order as denied that branch of the defendant’s motion which was to strike certain portions of the pleading is dismissed (see, CPLR 5701 [b] [3]); and it is further,

Ordered that the. order is affirmed insofar as reviewed; and it is further,

Ordered that the plaintiff is awarded one bill of costs.

We have reviewed the defendant’s numerous challenges, both technical and substantive, to the amended complaint and concur with the Supreme Court that that branch of his motion which was for the dismissal of the amended complaint for failure to state a cause of action must be denied (see, 219 Broadway Corp. v Alexander’s, Inc., 46 NY2d 506).

We further note that the purported appeal from the denial of that branch of the defendant’s motion which was to strike certain portions of the amended complaint pursuant to CPLR 3024 (b) must be dismissed, since an order which refuses to strike scandalous or prejudicial matter from a pleading is not appealable as of right (see, CPLR 5701 [b] [3]). We are not inclined to grant permission to appeal sua sponte (see, Albert v Rossi, 108 AD2d 833). Lawrence, J. P., Rubin, Eiber and Balletta, JJ., concur.