Fowler v. Conforti

Jun 10, 1993
Versions:194 A.D.2d 394
598 N.Y.S.2d 782
1993 N.Y. App. Div. LEXIS 5895

—Judgment, Supreme Court, New York County (Harold Tompkins, J.), entered August 19, 1992 which granted defendant’s motion for summary judgment dismissing the complaint, and awarded sanctions of $10,000 against plaintiff for frivolous conduct, unanimously affirmed, with costs.

This is yet another action arising out of the Parks v Greenberg matter (161 AD2d 467, mot to dismiss appeal granted 76 NY2d 888, lv denied 76 NY2d 712; Parks v Leahey & Johnson, 180 AD2d 479, mod 81 NY2d 161). In this instance, plaintiff-lawyer who represented Parks in the original action commenced an action for defamation against an attorney from the firm who represented defendant in the original action as well as defendant law firm in the second action. The alleged defamation is claimed to arise from statements made at oral argument before this Court on an appeal in the second action. As such, the complained of statement is absolutely privileged since it was uttered in response to a footnote which plaintiff himself set forth in a brief filed with this Court (see, Joseph v Larry Dorman, P. C., 177 AD2d 618). Moreover, we do not deem the statement defamatory and, in any event, would be governed by the single instance rule which would require the pleading of special damages, here absent (Bowes v Magna Concepts, 166 AD2d 347).

Finally, the imposition of the maximum sanction of $10,000 for frivolous conduct was appropriate in this circumstance since plaintiff was forewarned about the dubious nature of this action and further because the plaintiff has repeatedly engaged in vexatious litigation arising from the original Parks v Greenberg case. We note parenthetically that plaintiff is now enjoined from any further litigation emanating from that *395case. Concur—Sullivan, J. P., Milonas, Ellerin and Asch, JJ. [See, 152 Misc 2d 909.]