Cite as: Blit v. Savitt Law Firm, 152536/12, NYLJ 1202583126364, at *1 (Sup., NY, Decided December 4, 2012)

Justice Cynthia S. Kern

Decided: December 4, 2012

Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion for:

Papers Numbered

Notice of Motion and Affidavits Annexed 1

Answering Affidavits

Cross-Motion and Affidavits Annexed

Answering Affidavits to Cross-Motion

Replying Affidavits

Exhibits 2

DECISION/ORDER

 

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Plaintiffs Matthew J. Blit ("Blit") and Levine & Blit, PLLC commenced the instant action against defendants Savitt Law Firm, PLLC and Richard Savitt ("Savitt") for defamation and intentional infliction of emotional distress. Plaintiffs now move pursuant to CPLR §3215 for default judgment against defendants as they have failed to answer or otherwise respond to the complaint and the time to do so has expired. For the reasons set forth below, plaintiffs' motion is denied.

Pursuant to CPLR §3215, on application for default, plaintiff must not only show proof of the default but "proof of the facts constituting the claim." In the instant action, plaintiff has failed to make a prima facie showing of entitlement to judgment as a matter of law on either its

 

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defamation or intentional infliction of emotional distress claims to warrant judgment against the defaulting defendants.

As an initial matter, a defamation claim against defendants can not stand as the alleged defamatory statements were made in the course of a judicial proceeding and are privileged. It is well settled that "[n]othing that is said in the court room may be the subject of an action for defamation unless, this court has declared, it is 'so obviously impertinent as not to admit of discussion, and so needlessly defamatory as to warrant the inference of express malice.'" Masesson v. Jacob D. Fuchsberg Law Firm, 257 A.D.2d 381 (1st Dept 1999) (quoting Martirano v. Frost, 25 N.Y.2d 505, 508 (1969)). "Public policy mandates that certain communications, although defamatory, cannot serve as the basis for the imposition of liability in a defamation action." Toker v. Pollak, 44 N.Y.2d 211, 218 (1978).

Here, plaintiffs base their defamation claim upon the following statements made by Savitt during oral argument on a motion to dismiss in an unrelated action:

"It's a simple shakedown by Attorney Blit. This is what they do. They file lawsuits against high-profile individuals and try to extract money from them."

"They sent a complaint to the New York Post which has this false information. Attorney Blit knew the information was false…He knew them to be false and he published them and he published them in the complaint."

"This is what their law firm does. They have 30 cases within their website of how they filed these frivolous actions against named defendants."

It is undisputed that the statements were made in the course of a judicial proceeding. Moreover, a review of the entire transcript annexed to plaintiffs' moving papers makes clear that none of statements outlined above are "so obviously impertinent as not to admit of discussion, and so needlessly defamatory as to warrant the inference of express malice." See Mosesson, 257 A.D.2d at 381. Thus, the alleged defamatory statements herein are cloaked with immunity and cannot be

 

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actionable.

In regards to plaintiffs' claim for intentional infliction of emotional distress, in order to state a cause of action to recover damages for said claim, the complaint must allege conduct that was "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." Howell v. New York Post Co., Inc., 81 N.Y.2d 115, 122 (1993) (internal quotation marks omitted). Here, none of the alleged defamatory statements made by Savitt, as outlined above, rise to this level.

Accordingly, as plaintiffs have failed to make a prima facie showing of their entitlement to judgment as a matter of law on either their defamation or intentional infliction of emotional distress claims, their motion for default judgment must be denied. This constitutes the decision and order of the court.