Jaroslawicz & Jaros PLLC, New York (David Tolchin of counsel), for appellants.
Dechert LLP, New York (Kathleen N. Massey of counsel), for respondent.
FRIEDMAN, J.P., RENWICK, SAXE, GISCHE, JJ.
Orders, Supreme Court, New York County (Jennifer G. Schecter, J.), entered November 19, 2015, which, to the extent appealed from as limited by the briefs, denied plaintiff's motion to dismiss the defamation counterclaim and denied third-party defendant's motion to dismiss the third-party defamation claim, unanimously reversed, on the law, without costs, and the motions granted. The Clerk is directed to enter judgment dismissing the third-party complaint.
The alleged defamatory statements made in the complaint by plaintiff at the direction of third-party defendant (its managing member) are absolutely privileged, because they were made in the course of a judicial proceeding (see Park Knoll Assoc. v. Schmidt, 59 N.Y.2d 205, 209, 464 N.Y.S.2d 424, 451 N.E.2d 182 [1983] ).
There are no facts alleged supporting a conclusion that the instant litigation is "a sham action brought solely to defame" (see Flomenhaft v. Finkelstein, 127 A.D.3d 634, 638, 8 N.Y.S.3d 161 [1st Dept.2015] ). Plaintiff has diligently prosecuted its claims, inter alia, filing an amended complaint and vigorously opposing defendant's prior motion to dismiss, both at the motion court and on appeal (see id., at 638, 8 N.Y.S.3d 161 ; Casa de Meadows Inc. [Cayman Is.] v. Zaman, 76 A.D.3d 917, 908 N.Y.S.2d 628 [1st Dept.2010] ; Lacher v. Engel, 33 A.D.3d 10, 13–14, 817 N.Y.S.2d 37 [1st Dept.2006] ). The fact that several of plaintiff's claims were sustained on the prior motion to dismiss further undercuts defendant's contention that this litigation is a sham (see Manhattan Sports Rests. of Am., LLC v. Lieu, 137 A.D.3d 504, 27 N.Y.S.3d 125 [1st Dept.2016] ; but see Lacher, 33 A.D.3d at 14, 817 N.Y.S.2d 37 ["If the privilege existed only in cases that were ultimately sustained, none of the persons whose candor is protected by the rule ... would feel free to express themselves"] ).
Nor are any of the alleged defamatory statements not "pertinent" to the litigation (see Rosenberg v. MetLife, Inc., 8 N.Y.3d 359, 365, 834 N.Y.S.2d 494, 866 N.E.2d 439 [2007] [internal quotation marks omitted]; Park Knoll Assoc., 59 N.Y.2d at 209, 464 N.Y.S.2d 424, 451 N.E.2d 182 ). The allegations in the complaint that defendant contends are not pertinent are not "so outrageously out of context" as to permit the conclusion that they were intended solely to defame and are thus not actionable (see
Sexter & Warmflash, P.C. v. Margrabe, 38 A.D.3d 163, 173, 828 N.Y.S.2d 315 [1st Dept.2007] [internal quotation marks omitted] ).