CONGEL v. MALFITANO (2009)

In an action, inter alia, to recover damages for breach of contract and breach of fiduciary duty and for a judgment declaring that the defendant wrongfully dissolved the Poughkeepsie Galleria Company Partnership, the defendant appeals from an order of the Supreme Court, Dutchess County (Pagones, J.), dated November 28, 2007, which granted the plaintiffs' motion to confirm a referee's report awarding them costs and disbursements pursuant to CPLR 6514(c) in the sum of $37,130 and directed the defendant to pay a referee's fee in the sum of $4,466, and granted the plaintiffs' separate motion pursuant to CPLR 3025(b) for leave to amend the complaint.

ORDERED that the order is modified, on the law, by deleting the provisions thereof granting the plaintiffs' motion to confirm the referee's report and directing the defendant to pay the referee's fee and substituting therefor provisions denying that motion and directing the plaintiffs to pay one half of the referee's fee and the defendant to pay one half of the referee's fee;  as so modified, the order is affirmed, without costs or disbursements.

 Contrary to the defendant's contention, in granting leave to amend the complaint to add a cause of action alleging trade libel, the Supreme Court properly concluded that that cause of action was pleaded with particularity (see CPLR 3016[a];  cf. Fusco v. Fusco, 36 A.D.3d 589, 591, 829 N.Y.S.2d 138).   The defendant's contention that the language quoted in the complaint is not defamatory is improperly raised for the first time in his reply brief (see Borbeck v. Hercules Constr. Corp., 48 A.D.3d 498, 499, 852 N.Y.S.2d 264;  Cappiello v. Johnson, 21 A.D.3d 921, 922, 800 N.Y.S.2d 766).

 The Supreme Court improperly granted the plaintiffs' motion to confirm a referee's report awarding them costs and disbursements and improperly directed the defendant to pay all of the referee's fee.   The plaintiffs should have been directed to pay one half of the referee's fee (see Congel v. Malfitano, --- A.D.3d ----, 2008 WL 2682619 [Appellate Division Docket No. 2007-04386;  decided herewith] ).