LEFFLER v. KOTICK (2026)

Order, Supreme Court, New York County (Arthur F. Engoron, J.), entered June 5, 2025, which denied defendant's motion for summary judgment dismissing plaintiff's defamation claim, unanimously affirmed, with costs.

The law of the case doctrine precludes defendant from asserting that his defamatory statements were protected by an absolute or qualified privilege.  This Court's determination in a prior appeal that “plaintiff established, prima facie, that defendant made substantially false statements, to a nonprivileged party, that plaintiff committed and suborned perjury at trial” and that defendant failed to create an issue of fact sufficient to defeat summary judgment (Leffler v. Kotick, 187 A.D.3d 543, 543, 130 N.Y.S.3d 663 [1st Dept. 2020] ) constitutes the law of the case on the issue of privilege (see Kreisler v. B–U Realty Corp., 198 A.D.3d 568, 568, 156 N.Y.S.3d 183 [1st Dept. 2021] ).

We reject defendant's assertion that the issue of privilege was never litigated and that he had no opportunity to address it.  Defendant concedes that he intentionally refrained from asserting the defense of privilege in his first motion for summary judgment because he wished the complaint to be dismissed solely on the merits of the accusations.  Nevertheless, the motion court reached the issue and found that the statements were not privileged (see Leffler, 187 A.D.3d at 543, 130 N.Y.S.3d 663).  Since defendant's privilege argument “could have been raised in [his] prior appeal ․, which culminated in this Court's affirmance, the point is waived” (Goncalves v. Stuyvesant Dev. Assoc., 244 A.D.2d 267, 268, 664 N.Y.S.2d 764 [1st Dept. 1997];  U.S. Bank N.A. v. APP Intl. Fin. Co., B.V., 100 A.D.3d 179, 181, 952 N.Y.S.2d 533 [1st Dept. 2012], lv dismissed 8 N.Y.3d 830, 828 N.Y.S.2d 291, 861 N.E.2d 107 [2007] ).

We decline to exercise our discretion to award sanctions (see 22 NYCRR § 130–1.1[a] ).

We have considered defendant's remaining contentions and find them unavailing.