LEMBERG v. JOHN BLAIR COMMUNICATIONS INC (1999)

Order, Supreme Court, New York County (Carol Huff, J.), entered June 30, 1998, to the extent that it denied defendants' motion to dismiss the fourth cause of action in the second amended complaint and directed a reference on the question of sanctions for defendants' frivolous motion practice, unanimously reversed, on the law, with costs, the reference on sanctions is vacated, and the motion to dismiss the fourth cause of action granted.

Defendants moved, in February 1997, to dismiss the original complaint for failure to state a cause of action, inter alia.   It was during the pendency of that motion that plaintiffs served their amended complaint, adding the two individual defendants and asserting two new causes of action-a “fourth” alleging defamation against all defendants, and a “fifth” alleging unlawful retaliation in the form of malicious prosecution by filing a criminal complaint against plaintiff for theft.   In March 1997, defendants moved for a more definite statement on the fourth cause of action, and also moved for dismissal of the newly added fifth cause of action for failure to state a cause of action.   Plaintiffs immediately cross-moved for sanctions for frivolous motion practice, inter alia.   In a series of orders in August 1997, the original motion to dismiss was granted only as against one defendant (Petry Media Corp., the parent company of the employer), and the motions for a more definite statement as to the fourth cause of action and to dismiss the fifth cause of action were denied, as was plaintiffs' cross-motion.   On appeal, this Court dismissed the fifth cause of action as premature (251 A.D.2d 205, 674 N.Y.S.2d 355).

Defendants thereupon moved, in September 1997, to dismiss the fourth cause of action (in the now second amended complaint) for failure to state a cause of action.   Recall, this cause had been the subject of a more-definite-statement motion, but had never been the subject of a dismissal motion.   In the order now before us, the IAS court denied defendants' motion on the ground that the original defendants had waived their right to seek dismissal of the fourth cause of action for failure to include it in their prior dismissal motions.   The IAS court also granted plaintiffs' request to consider sanctions for defendants' frivolous motion practice.

 The legal sufficiency of the fourth cause of action was never challenged on a prior motion (cf., Schwartzman v. Weintraub, 56 A.D.2d 517, 391 N.Y.S.2d 416).   One of the purposes of the more-definite-statement motion addressed to the fourth cause of action, which accompanied the motion to dismiss the fifth cause, was to determine to whom and under what circumstances the allegedly slanderous statement had been uttered.   The indefiniteness of the pleading precluded defendants from seeking dismissal of the fourth claim at that point, and thus the latest motion to dismiss did not contravene the single-motion rule of CPLR 3211(e) (see, Held v. Kaufman, 91 N.Y.2d 425, 430, 671 N.Y.S.2d 429, 694 N.E.2d 430).

 As to the merits, an absolute privilege attaches to out-of-court verbal exchanges between attorneys.   Notwithstanding its utterance in poor taste, defendant Tofel's derogatory characterization of the plaintiff employee must be broadly construed as constitutionally protected opinion by counsel in the context of legal proceedings, and thus is not actionable (Caplan v. Winslett, 218 A.D.2d 148, 637 N.Y.S.2d 967).

MEMORANDUM DECISION.