Jan 23rd, 2017

FKB’s Andrew S. Kowlowitz and Benjamin M. Oxenburg obtain dismissal of a defamation action arising from articles published in the New York Post and the New York Daily News which described an attorney’s questioning of a prominent former TV executive during post-divorce proceedings for failure to pay child-support and alimony.


FKB successfully obtained pre-answer dismissal on a motion to dismiss from Justice David B. Cohen in New York County Supreme Court.

Plaintiff, a former television executive of several networks, was engaged in a contentious divorce with his ex-spouse, represented by FKB’s client.  Following a ten (10) day trial, the New York County Supreme Court held Plaintiff in criminal contempt for failing to pay pendente lite alimony and child support while spending lavishly on himself.  Plaintiff was sentenced to twenty (20) days in prison.  FKB’s client then instituted post-divorce proceedings to enforce Plaintiff’s support obligations.  During these proceedings, FKB’s client challenged Plaintiff’s claims that he was unable to pay his support obligations by presenting evidence on the record that the bank statements submitted by Plaintiff appeared to have been altered.  Reporters from the New York Post and the New York Daily News were present in the courtroom during the proceedings.

Following an interview and the publication of articles containing statements attributed to the attorney during and after the post-divorce proceedings, Plaintiff filed a Complaint containing a cause of action for defamation against the attorney and his law firm.   

FKB’s pre-answer motion to dismiss the Complaint pursuant to CPLR §3211(a)(1), §3211(a)(5)  and §3211(a)(7) vigorously argued that the attorney’s in-court statements, uttered in furtherance of representing his client, are afforded absolute immunity from defamation claims.  Additionally, all of the statements attributed to FKB’s client were either 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, or protected as pure statements of opinion.  In the Court’s Decision and Order, Justice Cohen granted dismissal of the action in its entirety and with prejudice.

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