Strict Defamation Pleading and Litigation Privilege; NIED Duty Limits; and Timely CPLR 3211 Motions After Substituted Service — Orrego v. Knipfing (2025)

Introduction

In Orrego v. Knipfing (2025 NY Slip Op 04100), the Appellate Division, Second Department, addressed a pro se plaintiff’s multi-tort complaint arising from a domestic employment relationship with defendant Kevin Knipfing (also known as Kevin James) and two co-workers. The case squarely tackles four recurring civil-litigation issues in New York:

the scope of the absolute litigation privilege shielding statements made in judicial proceedings;
the strict particularity required by CPLR 3016(a) for defamation claims, even when a plaintiff is self-represented;
the narrow contours of negligent infliction of emotional distress (NIED) and fraudulent misrepresentation in employment-adjacent disputes; and
the procedural effect of substituted service under CPLR 308(2) on default practice and the timeliness of a pre-answer CPLR 3211 motion.

The decision reaffirms settled principles and provides practical clarity on timing and pleading pitfalls, ultimately affirming dismissal of all claims and denial of the plaintiff’s motions for default and renewal, while also disposing of an earlier appeal as superseded by a reargument order.

Summary of the Judgment

The appeal from the August 2, 2021 order was dismissed as superseded by the November 18, 2021 order entered on reargument.
The November 18, 2021 order was affirmed insofar as appealed from.
Defamation claims based on statements made during other litigation were barred by the absolute litigation privilege.
Defamation allegations concerning statements outside litigation failed because the complaint did not satisfy CPLR 3016(a)’s strict particularity (time, place, manner, and to whom the statements were made).
NIED failed because the plaintiff did not plead a duty owed by the co-worker and did not allege conduct that unreasonably endangered her physical safety or caused fear for her own safety.
Fraudulent misrepresentation failed because the alleged assurance that nothing “bad” would happen if she cooperated was a nonactionable opinion/prediction about future conduct, not a misrepresentation of present fact.
Civil conspiracy failed because it is derivative and no underlying tort survived dismissal.
Leave to renew was properly denied for lack of reasonable justification under CPLR 2221(e) for not presenting the purportedly new facts earlier.
Default was properly denied: defendants timely appeared by serving a CPLR 3211(a) motion within 30 days after service was “complete” under CPLR 308(2) (i.e., 10 days after filing affidavits of service).
One bill of costs was awarded to defendants.

Case Background and Procedural History

The plaintiff, formerly employed as a nanny by Knipfing, alleged that a co-worker (Uzcategui) shared troubling information about the workplace and children, urged plaintiff to report it to Knipfing, and promised support. After plaintiff reported, she claimed that Uzcategui failed to support her and that Knipfing and another co-worker (Selga) falsely accused her of criminal conduct connected to her report. Plaintiff asserted claims for negligent infliction of emotional distress, defamation, fraudulent misrepresentation, and civil conspiracy.

Defendants moved to dismiss under CPLR 3211(a); plaintiff moved for a default judgment, arguing defendants failed to answer or appear timely. The Supreme Court (Queens County) granted dismissal under CPLR 3211(a)(7) and denied default, holding that alleged statements made in the course of other litigation were absolutely privileged. Plaintiff then sought reargument and renewal, contending the court overlooked her fraud and conspiracy claims and that some defamatory acts occurred outside any judicial proceeding. She also proffered materials obtained via a FOIL request after the first order. The court granted reargument, adhered to its prior ruling, and denied renewal. Plaintiff appealed.

Detailed Analysis

1) Defamation: Litigation Privilege and Strict Particularity

The court set out the elements of defamation: (a) a false statement exposing a person to contempt or ridicule, (b) publication to a third party without privilege, (c) fault, and (d) special harm or defamation per se (citing Greenberg v Spitzer, 155 AD3d 27, 41). New York’s CPLR 3016(a) requires pleading the “particular words” complained of, and courts strictly enforce this requirement (Horbul v Mercury Ins. Group, 64 AD3d 682, 683; Lemieux v Fox, 135 AD3d 713, 714). A complaint must specify when, where, and how the statement was made, and to whom (Epifani v Johnson, 65 AD3d 224, 233; Oluwo v Mills, 228 AD3d 879, 880).

Two distinct pleading failures doomed plaintiff’s defamation claims:

Absolute litigation privilege: To the extent the complaint targeted statements “made during the course of other litigation,” they were absolutely privileged and categorically nonactionable (Feng Li v Shih, 207 AD3d 444, 447). This privilege is robust: even malicious or defamatory statements are shielded if they are pertinent to a judicial proceeding.
Defamation outside litigation: Even reading the pro se complaint liberally, allegations of non-litigation statements lacked CPLR 3016(a) particulars—no specific time, place, manner, or audience (Oluwo v Mills, Starr v Akdeniz, Golia v Vieira, CSI Group v Harper, Raymond v Marchand). Strict compliance is required regardless of pro se status.

2) Negligent Infliction of Emotional Distress (NIED): Duty and Physical-Safety Nexus

New York generally confines NIED to scenarios where a defendant’s breach of duty either unreasonably endangers the plaintiff’s physical safety or causes the plaintiff to fear for their own safety (Chiesa v McGregor, 209 AD3d 963, 966; Punchar v Bishop, 229 AD3d 818, 819). The plaintiff did not allege that the co-worker (Uzcategui) owed her any legally cognizable duty, nor did she allege endangerment or fear for her physical safety (Weiss v Vacca, 219 AD3d 1375, 1377; Nachbar v Cornwall Yacht Club, 160 AD3d 972, 973). The court therefore held the NIED claim insufficient as a matter of law.

3) Fraudulent Misrepresentation: Nonactionable Future Assurances

Fraud requires a false material statement of present fact, scienter, intent to induce reliance, justifiable reliance, and injury (Mandarin Trading Ltd. v Wildenstein, 16 NY3d 173, 178; Avery v WJM Dev. Corp., 216 AD3d 887, 889; R. Vig Props., LLC v Rahimzada, 213 AD3d 871, 872). The complaint alleged that Knipfing promised nothing “bad” would happen if plaintiff cooperated with his investigation. The court deemed this a nonactionable opinion or prediction of future conduct—insufficient to support fraud (Cantor v Villucci, 212 AD3d 765, 767; Lombardi v Lombardi, 127 AD3d 1038, 1040). Absent a misrepresentation of present or past fact, the fraud claim failed.

4) Civil Conspiracy: Derivative Nature

New York does not recognize civil conspiracy as an independent tort; it “stands or falls” with the underlying tort (McSpedon v Levine, 158 AD3d 618, 621; Philip S. Schwartzman, Inc. v Pliskin, Rubano, Baum & Vitulli, 215 AD3d 699, 703). Because the defamation, NIED, and fraud claims failed, the conspiracy claim could not survive.

5) Procedural Rulings: Default, Appearance, and Timeliness Under CPLR 308(2) and 3211

The plaintiff sought a default judgment, arguing defendants failed to respond timely. The court’s analysis is a procedural roadmap for default practice after substituted service:

Substituted service and completion: The affidavits showed service under CPLR 308(2). Those affidavits were filed on April 14, 2021. Service becomes “complete” 10 days after filing proof (CPLR 308[2]; HSBC Bank USA, N.A. v Johnson, 234 AD3d 675). Here, completion occurred on April 24, 2021.
Time to answer or move: Defendants then had 30 days from completion (April 24) to answer or make a pre-answer motion (CPLR 3012[c]).
Appearance via motion: A defendant may appear by (1) answer, (2) notice of appearance, or (3) a motion that extends the time to answer (CPLR 320[a]). Service of a CPLR 3211(a) motion to dismiss extends the defendant’s time to answer (CPLR 3211[f]; 21st Mtge. Corp. v Raghu, 197 AD3d 1212, 1215).
Defendants’ timeliness: The defendants served their pre-answer CPLR 3211(a) motion on May 14, 2021—well within the 30-day window following April 24. Their motion was thus timely (CPLR 3211[e]) and constituted a proper and timely appearance, defeating default (21st Mtge. Corp. v Raghu; Digital Direct & More, Inc. v Dialectic Distrib., LLC, 230 AD3d 567, 568).

6) Motions to Reargue and Renew (CPLR 2221)

Reargument: Granted. But upon reargument, the court adhered to its original dismissal and denial of default. Reargument corrects matters the court “overlooked or misapprehended”; it is not a vehicle to present new facts.
Renewal: Denied. Renewal requires new facts that would change the prior determination and a reasonable justification for not presenting them earlier (CPLR 2221[e][2], [3]; Carmike Holding I, LLC v Smith, 180 AD3d 744, 747; Citimortgage, Inc. v Roque, 202 AD3d 1041, 1042). The plaintiff’s FOIL-derived materials did not come with a reasonable justification for the earlier omission. Without such justification, the Supreme Court “lacks discretion to grant renewal” (25 Bay Terrace Assoc., L.P. v Public Serv. Mut. Ins. Co., 194 AD3d 668, 674; Groman v Fleyshmakher, 221 AD3d 789, 790).

7) Precedents Cited and Their Influence

The court relied on well-established precedent to resolve each claim:

Defamation elements and pleading: Greenberg v Spitzer (elements); Horbul v Mercury; Lemieux v Fox; Epifani v Johnson; Oluwo v Mills; Starr v Akdeniz; Golia v Vieira; CSI Group v Harper; Raymond v Marchand (strict CPLR 3016[a] particularity). These cases collectively reinforce that defamation demands exactitude: the “particular words,” plus time, place, manner, and audience.
Litigation privilege: Feng Li v Shih confirms absolute privilege for statements made in the course of litigation—dispositive of claims based on statements in other litigation.
NIED: Chiesa v McGregor and Punchar v Bishop emphasize the physical-safety or fear-for-safety requirement; Weiss v Vacca and Nachbar v Cornwall Yacht Club underscore that a cognizable duty must exist.
Fraud: Mandarin Trading v Wildenstein (elements), Avery and R. Vig Props. (applications), and Cantor v Villucci plus Lombardi v Lombardi (future-looking promises and opinions are not fraud). These authorities collectively foreclose promissory “no harm will come” assurances as a basis for fraud.
Civil conspiracy: McSpedon v Levine; Philip S. Schwartzman, Inc. v Pliskin reassert that conspiracy cannot stand without a viable underlying tort.
Renewal standards: Carmike Holding I; Citimortgage v Roque; 25 Bay Terrace; Groman v Fleyshmakher articulate the due-diligence and “would change the result” prerequisites to renewal.
Default and appearance practice: 21st Mtge. Corp. v Raghu; Digital Direct & More and the CPLR provisions (308[2]; 320[a]; 3211[e], [f]; 3012[c]) govern the timing and effect of a pre-answer motion after substituted service.

8) Legal Reasoning Synthesized

The court’s reasoning follows a disciplined sequence:

Apply liberal construction to the pro se complaint but insist on statutory pleading standards (CPLR 3016[a]).
Filter out litigation-context statements under the absolute privilege, which operates as a complete immunity for pertinent statements made during judicial proceedings.
Examine remaining non-litigation defamation allegations for particularity; absent specifics, dismiss under CPLR 3211(a)(7).
Assess tort claims that hinge on duty (NIED) and the present-fact requirement (fraud); where the complaint alleges only co-worker interactions with no actionable duty and promissory future statements, dismissal is mandated.
Recognize conspiracy’s derivative nature; without a viable underlying tort, it falls.
Enforce procedural rigor on motions: a timely CPLR 3211 motion constitutes a proper appearance and defeats default; renewal demands diligence and potentially outcome-altering new facts.

9) Impact and Forward-Looking Considerations

This decision’s practical impact will be felt in several areas:

Defamation in employment-adjacent disputes: Plaintiffs must plead exact words, context, and audience. General accusations—especially by pro se litigants—will not survive. Where statements are tethered to litigation, the privilege likely forecloses liability.
Promises of non-retaliation: Framing employer assurances as fraud is fraught. Absent a misrepresentation of current or past fact, such statements will be treated as nonactionable opinions or predictions.
NIED boundaries: Interpersonal workplace conflicts rarely qualify. Without a specific duty owed and a nexus to physical safety or fear for safety, NIED claims will be dismissed.
Conspiracy claims: Litigants should focus on the viability of the underlying torts; “conspiracy” adds nothing unless a predicate tort is adequately pled.
Default practice post-substituted service: The opinion clarifies the timeline: service completes 10 days after filing proof; only then does the 30-day clock start for an answer or pre-answer motion. A timely CPLR 3211 motion is a proper appearance that defeats default.
Motions to renew: Parties cannot use renewal as a second bite at the apple absent diligence and genuinely outcome-changing new facts with a reasonable justification for earlier unavailability—even FOIL materials won’t suffice without that showing.

Complex Concepts Simplified

Absolute litigation privilege: A complete shield for statements made in or pertinent to a judicial proceeding. It applies even if statements are false or malicious, so long as they are relevant to the litigation.
CPLR 3016(a) particularity in defamation: The complaint must set out the exact words, identify when and where they were spoken or written, explain how they were published, and state to whom they were said. Vague allegations are insufficient.
Defamation per se vs. special harm: Some categories (e.g., imputing a serious crime or harming one’s profession) are per se defamatory and do not require pleading special damages. But particularity is still required.
NIED: Not a catch-all for emotional upset. A plaintiff must plead a duty and either actual endangerment of physical safety or fear for personal safety.
Fraudulent misrepresentation: Requires a false statement of existing or past fact, known to be false, intended to induce reliance, with justifiable reliance and damages. Promises or predictions about the future are generally not fraud.
Civil conspiracy: Not a standalone claim in New York. It only survives if the underlying tort survives.
Substituted service (CPLR 308[2]): Deliver papers to a person of suitable age at the defendant’s actual dwelling place or actual place of business and mail a copy; then file proof of service. Service is deemed complete 10 days after filing that proof. Only then does the defendant’s response time begin.
Appearance and default: A defendant appears by answering, serving a notice of appearance, or making a motion that extends time to answer (e.g., a CPLR 3211 motion). A timely pre-answer motion prevents default.
Reargument vs. renewal: Reargument corrects errors of law or fact the court overlooked; renewal is based on new facts that would change the outcome and requires a reasonable justification for not presenting them earlier.

Practice Pointers

For defamation claims, draft with precision: quote the words; identify the speaker, audience, date, place, and context. Anticipate privilege issues if litigation-related.
Do not rely on “conspiracy” as a ticket to discovery; ensure the predicate tort is robustly pled.
In employment disputes, evaluate whether alleged emotional distress fits NIED’s safety-focused rubric; many workplace grievances will not.
When considering fraud, distinguish between present-fact misstatements and future promises; the latter are generally nonactionable.
Track service and response deadlines meticulously. After substituted service, calendar: (1) proof-of-service filing date; (2) +10 days (service complete); (3) +30 days (deadline to answer or move). A pre-answer 3211 motion made before the deadline prevents default.
For renewal, gather and present all material facts the first time. If new facts arise later, be prepared to show why they could not, with diligence, have been obtained and presented earlier—and how they would change the result.

Conclusion

Orrego v. Knipfing is a comprehensive reaffirmation of core New York doctrines:

the absolute privilege insulating litigation-related statements;
the strictly enforced particularity requirement for defamation under CPLR 3016(a), applicable even to pro se litigants;
the limited scope of NIED and fraud in the employment context; and
the timing mechanics of substituted service and pre-answer motions that foreclose default.

By adhering to these standards and denying renewal without a reasonable justification for late-presented facts, the court underscores that procedural rigor and precise pleading are decisive. The ruling offers clear guidance to practitioners, especially in employment-adjacent disputes and celebrity-defendant contexts, that vague or litigation-privileged defamation claims, non-duty-based NIED theories, promissory “non-retaliation” fraud claims, and derivative conspiracy counts will not survive a CPLR 3211(a)(7) challenge. As a result, Orrego functions as both a cautionary tale on pleading discipline and a practical timeline guide for default-avoidance strategy following substituted service.

Note: This commentary is for informational purposes only and is not legal advice.