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Koch v. Blit

Supreme Court, New York

March 15, 2013

DANIEL KOCH, Plaintiff,
MATTHEW BLIT, individually, and LEVINE & BLIT, PLLC, Defendants 114067/11

Unpublished Opinion


Plaintiff Daniel Koch ("Koch") moves for renewal and reargument of this court's decision and order dated September 11, 2012 ("the original decision"), which granted defendants' motion to dismiss the complaint on statute of limitations grounds and for failure to state a cause of action. Defendants Matthew Blit ("Blit") and Levine & Blit, PLLC ("Levine & Blit") oppose the motion and request that sanctions be imposed against plaintiff. Background

This action arises out of defendants' representation of non-party Ashley Chontos ("Chontos") in connection with an action for sexual harassment against Koch. Chontos was a waitress at Jour et Nuit from October 2007 to February 2008, under the supervision of Koch. Chontos filed with the Equal Employment Opportunity Commission Charge of Discrimination ("EEOC Charge") against Jour et Nuit dated June 25, 2008, accusing Koch of discrimination based upon sexual harassment and unlawful termination. On April 2, 2010, Levine & Blit commenced an action on behalf of Chontos against Koch and her former employer based on the same allegations that were the subject of the EEOC charge (hereinafter "the Chontos Action").

The Chontos Action alleged, inter alia, that Chontos was subjected to unwanted and intentional sexual harassment by Koch. The Chontos Action was dismissed by Hon. Judith J. Gishe in her decision, dated August 9, 2011, for lack of personal jurisdiction after finding that service was not properly made upon any of the named defendants.

On April 15, 2010, the New York Post published an article about the lawsuit (hereinafter "the First Article"). The First Article briefly described the nature of Chontos Action and restated the allegations in the complaint as to Koch's purported conduct, and included statements by Chontos in support of these allegations. While the First Article indicated that defendants Blit, and Levine & Blit were Chontos' attorneys, it did not include any statements by them.

On July 2, 2011, the New York Post published an article about the bankruptcy of Frederick Lesort, the owner of Jour et Nuit, and one of the defendants in the Chontos Action (hereinafter "the Second Article"). The article described the judicial proceeding against Koch and the allegations in Chontos Action regarding Koch's conduct. Like the First Article, the Second Article included statements by Chontos in support to her allegations, but did not include any statements by either Blit or any other representative of Levine & Blit about Koch.

Koch commenced this action on December 15, 2011, seeking damages for defamation based on Chontos Action, the First Article, and the Second Article. In his complaint, Koch alleges that defendants filed the Chontos Action containing false and defamatory statements against Koch in an attempt to wrongfully extract money from him. Koch alleges that defendants knew that the statements in the complaint were false and for that reason they never served him with it, and failed to prosecute the action. Koch further alleges that the defendants caused the same defamatory statements to appear in the New York Post.

Defendants moved to dismiss the complaint against them, arguing that the action was time-barred insofar as it was commenced over a year after the filing of the Chontos Action and the publication of the First Article. Defendants further argued that the statements made in the complaint filed in the Chontos Action are protected by absolute privilege against claims of defamation as they were made in connection to a judicial proceeding. Defendants also argued that the First and Second Article did not contain any statements by the defendants and, in any event, they have no liability, as the articles are fair and true reports of the judicial proceedings and are therefore protected by an absolute privilege.

Defendants also assert that contrary to the allegations in the complaint, the defendants prosecuted the Chontos Action and made attempts to serve Koch with the complaint in that action and submit an affidavit of service to support this assertion. In addition, defendants noted that the factual basis for the complaint filed in the Chontos Action was sworn to by Chontos in her complaint before the EEOC, and in an affidavit submitted by Chontos in the Chontos Action in support of Chontos' motion for a default judgment against Koch and other defendants named in the action.

Koch opposed the motion, arguing that the statute of limitation was tolled by the filing of the Chontos Action as the facts that gave rise to the defamation claim were in dispute. Koch further argued that he acquired a legal right to relief, and the statute of limitations began to run, when the Chontos Action was dismissed on August 9, 2011. Koch also argued that the defendants' statements are not privileged as defendants knew when the statements were made that they were false and without merit and that the statements were made to with malice and the sole desire to defame Koch, citing, Youmans v. Smith, 153 N.Y. 214 (1897).

In the original decision, the court found that the one-year statute of limitations applicable to defamation claims barred plaintiffs claims to the extent they were based on statements in the Chontos Action and the First Article since those statements were made more than a year before the action was commenced in December 2011. Moreover, the court rejected plaintiffs argument that the limitations period was tolled and dismissed the complaint as there were no allegations or evidence that defendants misled or prevented plaintiff from filing the action earlier.

Next, while the court found that the defamation claim was timely asserted insofar as it was based on the statements Second Article, the court found that plaintiff failed to state a cause of action based on these statements as they pertained to a judicial proceeding and were thus protected by the absolute privilege created under Civil Rights Law § 74.

After the court issued the original decision, plaintiff submitted a motion to amend its pleadings, ...

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