Feb 29th, 2016

FKB’s Andrew S. Kowlowitz and Benjamin M. Oxenburg obtain dismissal of a defamation action arising from comments attributed to an attorney in the New York Post describing an indictment charging the son of a prominent attorney with multiple counts of unlawful surveillance

FKB successfully obtained pre-answer dismissal on a motion to dismiss from Justice Joan M. Kenney in New York County Supreme Court.

Plaintiff, the son of a prominent attorney, is presently being prosecuted by the New York County District Attorney’s Office on a nineteen (19) count indictment for second degree unlawful surveillance after he allegedly recorded romantic encounters with multiple women without their knowledge in two (2) separate locations. FKB’s client represents one of the Plaintiff’s victims. Following an interview and the publication of statements attributed to the attorney in the New York Post, Plaintiff filed a Complaint containing three (3) causes of action for defamation, defamation per se and vicarious liability against the attorney’s law firm.

FKB’s defense presented numerous procedural challenges, the most significant of which was the need to use the official records from the criminal action against Plaintiff, which is the subject of a protective order. Prior to filing the motion to dismiss, FKB secured a sealing order from the Court so as not to run afoul of the criminal action protective order.

FKB’s pre-answer motion to dismiss the Complaint pursuant to CPLR §3211(a)(1) and CPLR §3211(a)(7) argued that the attorney’s statements to the New York Post were shielded from defamation claims by the Fair Report Privilege codified in Civil Rights Law §74, as they were all substantially accurate reports of a judicial proceeding. Plaintiff delayed in submitting opposition to the motion to dismiss until the Court refused to permit Plaintiff’s second set of attorneys to withdraw from their representation until they had done so. Plaintiff’s carefully worded opposition was noteworthy in that he failed to deny under oath the truth of any of the underlying allegations in the criminal action or the statements attributed to FKB’s client by the New York Post. In the Court’s Decision and Order, Justice Kenney seized upon this fatal defect in Plaintiff’s opposition and granted dismissal of the action in its entirety.

If you have any questions about this decision, or the defense of attorneys in general, please contact Andrew S. Kowlowitz or Benjamin M. Oxenburg.