RIVERA v. GREENBERG

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

Reggie RIVERA, Respondent, v. Leon GREENBERG, et al., Appellants.

Decided: October 27, 1997

Before BRACKEN, J.P., and JOY, ALTMAN and GOLDSTEIN, JJ. Eric Miller, New York City, for appellant Adam Thompson. Leon Greenberg, New York City, pro se (one brief filed). Lysaght, Lysaght & Kramer, P.C., Lake Success (Raymond E. Kerno, of counsel), for respondent.

In an action, inter alia, to recover damages for defamation, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Nassau County (Davis, J.), dated October 9, 1996, as denied their cross motion to dismiss the complaint.

ORDERED that the order is modified, on the law, by deleting therefrom the provision denying that branch of the defendants' cross motion which was to dismiss the thirtieth cause of action, and substituting therefor a provision granting that branch of the cross motion and dismissing that cause of action;  as so modified, the order is affirmed insofar as appealed from, with costs to the plaintiff.

 At several press conferences, the defendant lawyers announced that the plaintiff, a New York City police officer, sexually assaulted six of their clients, raped 100 other unidentified men, and was “a racist cop who must be arrested”.   The Supreme Court properly denied so much of the defendants' cross motion which was to dismiss the causes of action sounding in defamation.   The defendants' statements are not privileged under Civil Rights Law § 74 since they were not “a fair and true report of * * * judicial proceedings” (Campbell v. New York Evening Post, Inc., 245 N.Y. 320, 157 N.E. 153;  see, Ocean State Seafood v. Capital Newspaper, Div. of Hearst Corp., 112 A.D.2d 662, 492 N.Y.S.2d 175;  Ramos v. El Diario Pub. Co., 16 A.D.2d 915, 229 N.Y.S.2d 652).   In addition, the statements are not otherwise protected by the absolute immunity afforded participants in certain governmental proceedings (see, Clark v. McGee, 49 N.Y.2d 613, 427 N.Y.S.2d 740, 404 N.E.2d 1283;  Cheatum v. Wehle, 5 N.Y.2d 585, 186 N.Y.S.2d 606, 159 N.E.2d 166;  Kennedy v. Cannon, 229 Md. 92, 182 A.2d 54;  Green Acres Trust v. London, 141 Ariz. 609, 688 P.2d 617).

 However, the Supreme Court should have dismissed the plaintiff's thirtieth cause of action, which alleges conspiracy to defame, since New York does not recognize civil conspiracy as an independent tort (see, e.g., Chiaramonte v. Boxer, 122 A.D.2d 13, 504 N.Y.S.2d 182).

The defendants' remaining contentions are without merit.

MEMORANDUM BY THE COURT.

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