Perritano v. Perone

130 A.D.2d 472, 515 N.Y.S.2d 55, 1987 N.Y. App. Div. LEXIS 46445

Opinion

In an action to recover damages for libel and intentional infliction of emotional distress, the plaintiff appeals from an order of the Supreme Court, Westchester County (Coppola, J., on order; Isseks, J., on decision), dated April 3, 1987, which granted the defendant’s motion for summary judgment dismissing the complaint as barred by the Statute of Limitations.

Ordered that the order is affirmed, with costs.

In June 1984 the plaintiff commenced this action, inter alia, to recover damages for libel, alleging the publication of libelous statements on September 21, 1981 and a republication in December 1983. In September 1984 the defendant moved to dismiss the complaint pursuant to CPLR 3211 upon the grounds of failure to state a cause of action and that the action was barred by the Statute of Limitations. Contrary to the plaintiffs argument, the fact that that motion was denied (Buell, J.), did not bar the defendant’s subsequent motion for summary judgment pursuant to CPLR 3212 (see, Scott v Transkrit Corp., 91 AD2d 682; Fink v Horn Constr. Co., 58 AD2d 574).

Turning to the merits, it is clear that the original publication occurred more than one year prior to the commencement of the action (see, CPLR 215 [3]). With respect to the alleged republication, we find that the plaintiff failed to present any evidentiary facts in admissible form to raise a triable issue of fact with respect thereto (see, Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065). Further, the plaintiff did not set forth any basis upon which an adjournment should have been granted for the purpose of further discovery (see, CPLR 3212 [f]). Thompson, J. P., Lawrence, Rubin, Kunzeman and Sullivan, JJ., concur.