Tomashefsky v. Litmor Publishing Corp.

47 A.D.2d 647, 366 N.Y.S.2d 393, 1975 N.Y. App. Div. LEXIS 8829

Opinion

In a libel action, plaintiff appeals from so much of an order of the Supreme Court, Nassau County, dated March 14, 1974, as amended by a further order of the same court, dated May 2, 1974, as denied his motion to dismiss defendants’ counterclaim and affirmative defenses, except the seventh defense, lack of personal jurisdiction over defendants (as to .that defense a traverse hearing was ordered). Order modified, on the law, by adding thereto a provision that the denial of plaintiff’s motion is limited to the first to sixth, inclusive, and the eighth defenses and that plaintiff’s motion is granted as to the combined counterclaim and ninth affirmative defense. As so modified, order affirmed insofar as appealed from, without costs. In the paragraphs of defendants’ pleading comprising what is labeled a “ First, Separate and Distinct Counterclaim and Ninth,Affirmative Defense’’, defendants, as stated' iq theirbrief on this appeal, seek recovery"of monetary damages from- plaintiff on'.a1 theo!ry of-prima facie, tórt. We find.thé facts as alleged insufficient to sustain, such a eause of action of .defense,' HppMns, Acting P. J.pMartuseello. Brennan. ■ Benjamin and-¡Shapiro,' JJ.,-concur. . ,