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Jonathan K. Smith, Etc v. John A. Catsimatidis

May 29, 2012

JONATHAN K. SMITH, ETC.,
PLAINTIFF-APPELLANT,
v.
JOHN A. CATSIMATIDIS,
DEFENDANT-RESPONDENT.



Smith v Catsimatidis

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on May 29, 2012

Friedman, J.P., Sweeny, Renwick, Freedman, Abdus-Salaam, JJ.

Order, Supreme Court, New York County (Anil C. Singh, J.), entered April 15, 2011, which granted defendant's motion to dismiss the complaint, unanimously affirmed, without costs.

The IAS court correctly determined that the allegedly defamatory statement contains nothing that would allow a reader to discern that it was "of and concerning" plaintiff (Giaimo v Literary Guild, 79 AD2d 917, 917 [1981]; Salvatore v Kumar, 45 AD3d 560, 563 [2007], lv denied 10 NY3d 703 [2008]; see generally Prince v Fox Tel. Stas., Inc., 93 AD3d 614, 614-615 [2012]). Indeed, the statement did not name plaintiff at all, and gave no reason for any reader to think that defendant was referring to him.

In view of the foregoing determination, we need not decide whether the statement is privileged.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MAY 29, 2012

CLERK

20120529

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