BENEDICT v. DECKER (2008)

In an action to recover on promissory notes, the defendant appeals, as limited by his brief, from so much of an order of the Supreme Court, Suffolk County (Cohalan, J.), dated January 31, 2006, as granted that branch of the plaintiff's motion which was pursuant to CPLR 3211(a)(5) to dismiss the defendant's counterclaim for libel as time-barred.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The Supreme Court properly dismissed the defendant's counterclaim for libel as time-barred.   Contrary to the defendant's contention, his counterclaim for libel did not arise from “the transactions, occurrences, or series of transactions or occurrences” upon which the claims asserted in the complaint depend, such that it was timely interposed (CPLR 203[d];  see Messinger v. Mount Sinai Med. Ctr., 279 A.D.2d 344, 345, 720 N.Y.S.2d 13).   The newspaper article containing the alleged libelous statements related to credit card fraud and misappropriation of company funds which were the subject of a criminal case against the defendant, and the instant complaint focuses on promissory notes representing loans made to the defendant by the plaintiff (cf. Bloomfield v. Bloomfield, 97 N.Y.2d 188, 193, 738 N.Y.S.2d 650, 764 N.E.2d 950;  United States Fid. & Guar. Co. v. Delmar Dev. Partners, LLC, 22 A.D.3d 1017, 1020, 803 N.Y.S.2d 254).

The defendant's remaining contentions are without merit.