VERDI v. Ezra Glaser, Nonparty-Appellant. (2020)

Order, Supreme Court, New York County (Lynn R. Kotler, J), entered March 9, 2020, which, insofar as appealed from as limited by the briefs, granted defendant's CPLR 3211(a)(5) and (7) motion to dismiss the second cause of action, all claims based on paragraphs 104, 108, and 123 of the complaint, and all demands for punitive damages, and imposed sanctions on plaintiff and his counsel pursuant to 22 NYCRR 130.1.1, unanimously affirmed, without costs.

The motion court correctly dismissed claims arising from paragraphs 108 and 123 of the second amended complaint, as the alleged defamatory statements therein had already been stricken as nonactionable “Lawsuit Statements” in prior orders (see Verdi v. Dinowitz, 2017 N.Y. Slip Op. 32073 [U], 2017 WL 4354792 [Sup. Ct., N.Y. County 2017], mod on other grounds 161 A.D.3d 413, 73 N.Y.S.3d 879 [1st Dept. 2018] ).

The court correctly dismissed as time-barred the second cause of action and claims arising from paragraph 104.  Those claims are untimely under the one-year statute of limitations (CPLR 215[3] ), and, as the court found, the relation-back doctrine does not apply because they were based on new statements in entirely new publications (see Luisi v. JWT Group, 128 Misc.2d 291, 295–296, 488 N.Y.S.2d 554 [Sup. Ct., N.Y. County 1985]; Hartmann v. Time, Inc., 60 N.Y.S.2d 209, 211–212 [Sup. Ct, N.Y. County 1945], affd 271 App.Div. 781, 66 N.Y.S.2d 151 [1st Dept. 1946] ).

The court correctly dismissed the demands for punitive damages, because the complaint does not allege that in making the statements defendant was “solely motivated by a desire to injure plaintiff” (Morsette v. The “Final Call,” 309 A.D.2d 249, 255, 764 N.Y.S.2d 416 [1st Dept. 2003], appeal dismissed 5 N.Y.3d 756, 801 N.Y.S.2d 248, 834 N.E.2d 1258 [2005] ).

The imposition of sanctions did not violate plaintiff's or his counsel's procedural due process rights.  Plaintiff and his counsel made their fifth and sixth applications for sanctions in opposition to defendant's motion for a protective order and motion to dismiss and, after defendant responded by arguing that the repetitive requests for sanctions were frivolous and sanctionable, the court held oral argument on all the motions, at which time plaintiff and counsel were present and argued before the court.  Thus, they had fair notice and a reasonable opportunity to be heard (see 22 NYCRR 130–1.1[d]; Dubai Bank v. Ayyub, 187 A.D.2d 373, 374, 589 N.Y.S.2d 486 [1st Dept. 1992]; see also Matter of Gordon v. Marrone, 202 A.D.2d 104, 110–111, 616 N.Y.S.2d 98 [2d Dept. 1994], lv denied 84 N.Y.2d 813, 623 N.Y.S.2d 181, 647 N.E.2d 453 [1995] ). In addition, the order sets forth a number of reasons for the court's finding of frivolous conduct and imposition of the sanctions (see 22 NYCRR 130–1.2).