Tauber v. Wald

173 A.D.2d 465, 570 N.Y.S.2d 998, 1991 N.Y. App. Div. LEXIS 7409

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 6, 1991
• Status: Published

Opinion

In an action to recover damages for libel, slander and defamation, the defendant Robert Jay Dinerstein appeals from so much of an order of the Supreme Court, Kings County (Ramirez, J.), dated September 27, 1989, as denied his motion pursuant to CPLR 3012 (b) to dismiss the action as against him.

Ordered that the order is reversed insofar as appealed from, on the law, with costs, the appellant’s motion is granted, the action is dismissed insofar as it is asserted against him, and the action against the remaining defendants is severed.

The plaintiffs served the defendants with a summons with notice on or about October 7, 1988, alleging that the basis of the action was to recover damages for libel, slander and defamation. In response to the appellant’s notice of appearance and demand for service of a complaint, the plaintiffs sought and obtained an order permitting the depositions of two nonparty witnesses (see, CPLR 3102 [c]). Those depositions were completed on April 28, 1989, and, by notice dated June 1, 1989, the appellant moved to dismiss the action insofar as it was asserted against him, based upon the plaintiffs failure to timely serve a complaint (see, CPLR 3012 [b]). The Supreme Court denied the appellant’s motion, but directed the plaintiffs to serve their complaint within 20 days. This appeal ensued.

Dismissal of the action against the appellant is required because the plaintiffs, after being afforded prepleading discovery, failed to establish the existence of a meritorious claim against him sounding in defamation (see, Kel Mgt. Corp. v Rogers & Wells, 64 NY2d 904; Stolowitz v Mount Sinai Hosp., 60 NY2d 685). Thompson, J. P., Bracken, Brown and Eiber, JJ., concur.