John D. Balliet, Respondent, v. Rajesh Kottamasu, Appellant. (2023)

ORDERED that the appeal from the order entered August 25, 2022 is dismissed, as no appeal as of right lies from a sua sponte order (see CCA 1702 [a] [2]; Sholes v Meagher, 100 NY2d 333 [2003]) and leave to appeal has not been granted; and it is further,

ORDERED that the order entered August 11, 2022, insofar as appealed from, is affirmed, without costs.

This defamation action is premised on written and oral statements made by defendant, plaintiff's former roommate, to the parties' other roommates, expressing concerns regarding certain actions of plaintiff. Defendant moved to, among other things, dismiss the action under CPLR 3211 (g) and recover attorney's fees under Civil Rights Law § 70-a (1) (a). The Civil Court, by order entered August 11, 2022, insofar as appealed from, denied the branches of defendant's motion seeking to dismiss the action and recover attorney's fees. Subsequently, by order entered August 25, 2022, the Civil Court sua sponte dismissed defendant's counterclaim for attorney's fees.

The appeal from the August 25, 2022 order is dismissed, as no appeal as of right lies from a sua sponte order (see CCA 1702 [a] [2]; Sholes v Meagher, 100 NY2d 333 [2003]) and leave to appeal has not been granted.

The Civil Court properly denied dismissal under CPLR 3211 (g) and defendant's request for attorney's fees under Civil Rights Law § 70-a (1) (a). This action is not a strategic lawsuit against public participation (SLAPP). Defendant's statements concern "a purely private matter" (Civil Rights Law § 76-a [1] [a], [d]) and were "directed only to a limited, private audience" (Huggins v Moore, 94 NY2d 296, 303 [1999]). Although defendant's statements touched on topics of public interest, those topics were not their focus. Rather, the statements were private complaints about plaintiff's behavior. Under these circumstances, their content was not within the sphere of public interest (see Miller v Appadurai, 214 AD3d 455, 456 [2023]; Tsamasiros v Jones, 78 Misc 3d 1225[A], 2023 NY Slip Op 50349[U], *4-5 [Sup Ct, Richmond County 2023]; see also Huggins v Moore, 94 NY2d at 302; cf. Coleman v Grand, 523 F Supp 3d 244, 251-252, 259-260 [ED NY 2021]).

Accordingly, the order entered August 11, 2022, insofar as appealed from, is affirmed.

TOUSSAINT, P.J., BUGGS and OTTLEY, JJ., concur.

ENTER:

Paul Kenny

Chief Clerk

Decision Date: November 13, 2023