— Kenechukwu C. Okoli, Plaintiff–Appellant, v. LLP

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Supreme Court, Appellate Division, First Department, New York.

— Kenechukwu C. Okoli, Plaintiff–Appellant, v. Paul Hastings LLP, et al., Defendants–Respondents.

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Decided: May 15, 2014

Mazzarelli, J.P., Andrias, DeGrasse, Manzanet–Daniels, Feinman, JJ. Law Offices of Nicholas A. Penkovsky, PC, New York (Nicholas A. Penkovsky of counsel), for appellant. Paul Hastings LLP, New York (Carla R. Walworth of counsel), for respondents.

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Order, Supreme Court, New York County (Cynthia Kern, J.), entered September 19, 2012, which granted defendant's motion to dismiss the complaint, unanimously affirmed, with costs;  order, same court and Justice, entered December 14, 2012, which, to the extent appealed from, denied plaintiff's motion for leave to file an amended complaint and to modify the prior order, unanimously affirmed, with costs.

The court properly dismissed the slander per se claim because the alleged defamatory statements were made during a judicial proceeding and may be considered pertinent to that proceeding (see Sexter & Warmflash, P.C. v. Margrabe, 38 AD3d 163, 171–172 [1st Dept 2007] ).

The court properly dismissed the claim for civil assault.   The physical conduct alleged by plaintiff, which amounts to finger pointing and generalized yelling in the context of a heated deposition, is inappropriate behavior, not to be condoned, but, without more, is not the type of menacing conduct that may give rise to a reasonable apprehension of imminent harmful conduct needed to state an actionable claim of assault (see Holtz v. Wildenstein & Co., 261 A.D.2d 336 [1st Dept 1999] ).

Plaintiff's motion to modify the order and for leave to serve an amended complaint was properly denied since the proposed pleading contained no new allegations to sustain the dismissed causes of action.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

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CLERK