Simons v. Katz

Appellate Division of the Supreme Court of New York

Simons v. Katz

257 A.D.2d 402, 683 N.Y.S.2d 66, 1999 N.Y. App. Div. LEXIS 47

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJanuary 7, 1999

StatusPublished

Cited by1 cases

This text of 257 A.D.2d 402 (Simons v. Katz) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Simons v. Katz, 257 A.D.2d 402, 683 N.Y.S.2d 66, 1999 N.Y. App. Div. LEXIS 47 (N.Y. Ct. App. 1999).

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Opinion

—Order, Supreme Court, New York County (Alice Schlesinger, J.), entered on or about November 3, 1997, which, insofar as appealed from as limited by plaintiff’s brief, granted defendant’s cross motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

The allegedly defamatory statement, contained in a letter written by defendant, an attorney, while representing a client in a partition action against plaintiff, to a nonparty tenant occupying the apartment owned by plaintiff and defendant’s client, and not otherwise published, that “[i]t appears that [plaintiff] has merely been pocketing your rental payments”, was clearly an expression of fact. Viewed in the context of the rest of the letter (see, Brian v Richardson, 87 NY2d 46, 51), the truth of the assertion that plaintiff was diverting the payments was essential to the point of the letter that the tenant send future rent payments to defendant for deposit into an escrow [403]*403account. However, as defendant made the statement in furtherance of her representation of her client and therefore enjoyed a qualified privilege (see, Toker v Pollak, 44 NY2d 211, 219), and plaintiff failed to raise an issue of fact as to malice (see, Liberman v Gelstein, 80 NY2d 429, 437-439), summary judgment dismissing the complaint was properly granted. We have considered plaintiff’s other arguments and find them to be unavailing. Concur—Sullivan, J. P., Rosenberger, Williams and Tom, JJ.

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—Order, Supreme Court, New York County (Alice Schlesinger, J.), entered on or about November 3, 1997, which, insofar as appealed from as limited by plaintiff’s brief, granted defendant’s cross motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

The allegedly defamatory statement, contained in a letter written by defendant, an attorney, while representing a client in a partition action against plaintiff, to a nonparty tenant occupying the apartment owned by plaintiff and defendant’s client, and not otherwise published, that “[i]t appears that [plaintiff] has merely been pocketing your rental payments”, was clearly an expression of fact. Viewed in the context of the rest of the letter (see, Brian v Richardson, 87 NY2d 46, 51), the truth of the assertion that plaintiff was diverting the payments was essential to the point of the letter that the tenant send future rent payments to defendant for deposit into an escrow [403]*403account. However, as defendant made the statement in furtherance of her representation of her client and therefore enjoyed a qualified privilege (see, Toker v Pollak, 44 NY2d 211, 219), and plaintiff failed to raise an issue of fact as to malice (see, Liberman v Gelstein, 80 NY2d 429, 437-439), summary judgment dismissing the complaint was properly granted. We have considered plaintiff’s other arguments and find them to be unavailing. Concur—Sullivan, J. P., Rosenberger, Williams and Tom, JJ.

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Bluebook (online)

257 A.D.2d 402, 683 N.Y.S.2d 66, 1999 N.Y. App. Div. LEXIS 47, Counsel Stack Legal Research, https://law.counselstack.com/opinion/simons-v-katz-nyappdiv-1999.

Opinion

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