FOSTER v. CITY OF NEW YORK (2026)

Order, Supreme Court, New York County (Nicholas W. Moyne, J.), entered November 19, 2024, which, to the extent appealed from as limited by the briefs, granted defendant Jeffrey B. Maddrey's motion to dismiss the cause of action for assault (the cause of action) and the cause of action for defamation per se (the fourth cause of action) as against him, unanimously affirmed, without costs.  Order, same court and Justice, entered January 28, 2026, which granted plaintiff pro se's motion for leave to reargue and, upon reargument, adhered to its prior order and denied plaintiff's motion to vacate the money judgment entered against her, unanimously affirmed, without costs.

Supreme Court properly found that plaintiff's assault cause of action had already been dismissed by a prior order of the same court, different Justice, dated January 20, 2021.  In issuing the January 2021 order, the prior Justice found that the assault cause of action was time-barred because the most recent assault alleged in the complaint was in April 2016 and the action was filed in July 2019, well outside the one-year statute of limitations (CPLR 215[3] ), and Supreme Court was correct to adopt this finding.  We reject plaintiff's argument that the decretal paragraphs of the January 2021 order did not specifically address the cause of action for assault, and that the order therefore did not dispose of the assault cause of action.  As Supreme Court noted, the prior order expressly stated that the cause of action for assault was “plainly time barred.”

Moreover, Supreme Court properly dismissed the cause of action for defamation, regardless of whether it is classified as a cause of action for defamation per se or general defamation.  None of the alleged statements that Maddrey made to the Daily News rise to a cognitable claim for defamation.

With respect to the motion for reargument, Supreme Court properly found that plaintiff's motion was, in fact, one for reargument under CPLR 2221(d) and not, as plaintiff argues, for reconsideration.  Moreover, the court properly denied the motion, as plaintiff failed to identify matters of fact and law allegedly overlooked or misapprehended by the court in determining the prior motion (CPLR 2221[d][2] ).

Supreme Court providently exercised its discretion in declining to vacate the money judgment for costs against plaintiff.  Maddrey presented an affidavit of service, which constituted prima facie evidence of proper service, and plaintiff's mere denial of receipt was insufficient to rebut the presumption (see HSBC Bank USA, N.A. v. Gifford, 224 A.D.3d 447, 450, 206 N.Y.S.3d 4 [1st Dept. 2024] ).

We have considered plaintiff's remaining arguments and find them unavailing.