Galasso, Langione & Botter, LLP v. Liotti

Decision Date22 February 2011
Citation917 N.Y.S.2d 664,81 A.D.3d 880
CourtNew York Supreme Court — Appellate Division
PartiesGALASSO, LANGIONE & BOTTER, LLP, et al., plaintiffs-respondents, v. Thomas F. LIOTTI, defendant third-party plaintiff-appellant; Frederick K. Brewington, third-party defendant-respondent.

Thomas F. Liotti, Garden City, N.Y. (Michael P. Hilferty of counsel), defendant third-party plaintiff-appellant pro se.

Frederick K. Brewington, Hempstead, N.Y. (Mark E. Goidell of counsel), third-party defendant-respondent pro se and for plaintiffs-respondents.

REINALDO E. RIVERA, J.P., JOHN M. LEVENTHAL, L. PRISCILLA HALL, and SHERI S. ROMAN, JJ.

In an action, inter alia, to recover damages for defamation, the defendant third-party plaintiff appeals (1), as limited by his brief, from so much of an order of theSupreme Court, Nassau County (Palmieri, J.), entered May 16, 2008, as granted those branches of the plaintiffs' motion which were to dismiss his first, third, and tenth affirmative defenses, and granted thethird-party defendant's motion, inter alia, to dismiss the third-party complaint pursuant to CPLR 3211(a)(7), and (2), as limited by his brief, from so much of an order of the same court entered August 21, 2008, as denied that branch of his motion which was to dismiss the complaint pursuant to CPLR 3211(a)(7), or for summary judgment dismissing the complaint, and as, upon renewal, adhered to the determination in the order entered May 16, 2008, granting those branches of the plaintiffs' motion which were to dismiss his first, third, and tenth affirmative defenses, and (3) an order of the same court dated November 3, 2008, which, after a hearing on the third-party defendant's motion to impose sanctions pursuant to 22 NYCRR 130-1.1, directed the entry of a judgment in favor of the third-party defendant and against him in the principal sum of $14,098.69, and (4), as limited by his brief, from so much of an order of the same court entered April 1, 2009, as denied that branch of his motion which was, in effect, for leave to reargue, among other things, his opposition to the third-party defendant's motion, inter alia, to dismiss the third-party complaint pursuant to CPLR 3211(a)(7).

ORDERED that the appeal from the order entered April 1, 2009, is dismissed, as no appeal lies from an order denying leave to reargue; and it is further,

ORDERED that the appeal from so much of the order entered May 16, 2008, as granted those branches of the plaintiffs' motion which were to dismiss the first, third, and tenth affirmative defenses, is dismissed, as that portion of the order was superseded by the order entered August 21, 2008, made upon renewal; and it is further,

ORDERED that the order entered August 21, 2008, is modified, on the law, by deleting the provision thereof, upon renewal, adhering to the determination in the order entered May 16, 2008, granting that branch of the plaintiffs' motion which was to dismiss the first affirmative defense, and substituting therefor a provision, upon renewal, vacating so much of the order entered May 16, 2008, as granted that branch of that motion and denying that branch of the motion; as so modified, the order entered August 21, 2008, is affirmed insofar as appealed from; and it is further,

ORDERED that the order entered May 16, 2008, is affirmed insofar as reviewed; and it is further,

ORDERED that the order dated November 3, 2008, is affirmed; and it is further,

ORDERED that one bill of costs is awarded to the plaintiffs and the third-party defendant.

The plaintiff Peter J. Galasso, a partner in the plaintiff law firm Galasso, Langione & Botter, LLP (hereinafter GLB), represented Stephen Baron in his divorce action. Baron designated GLB as his escrow agent in June 2004, to hold almost $5 million in an escrow account. Peter J. Galasso's brother, Anthony Galasso, was GLB's bookkeeper. In January 2007, Anthony Galasso confessed that he had stolen approximately $4.4 million from the escrow account. The defendant third-party plaintiff, Thomas F. Liotti, is a criminal defense attorney who represented Anthony Galasso in the criminal action against him. Anthony Galasso eventually pleaded guilty to all 22 counts charged in Nassau County Indictment No. 2349N/2007 and, in his allocution, stated that the attorneys at GLB played no role in his crimes. FollowingAnthony Galasso's arraignment, Liotti made a statement to a reporter, which was published in the October 25, 2007, edition of Newsday, in effect, accusing the attorneys at GLB of "[d]ipping into company accounts." The plaintiffs commenced the instant action, inter alia, to recover damages for defamation. Thereafter, Liotti commenced a third-party action against the plaintiffs' attorney, Frederick K. Brewington, inter alia, to recover damages for defamation, abuse of process, and intentional infliction of emotional distress.

A party may move to dismiss a defense "on the ground that a defense is not stated or has no merit" (CPLR 3211[b] ). When moving to dismiss or strike an affirmative defense, the plaintiff bears the burden of demonstrating that the affirmative defense is " 'without merit as a matter of law' " ( Greco v. Christoffersen, 70 A.D.3d 769, 771, 896 N.Y.S.2d 363, quoting Vita v. New York Waste Servs., LLC, 34 A.D.3d 559, 559, 824 N.Y.S.2d 177). "In reviewing a motion to dismiss an affirmative defense, the court must liberally construe the pleadings in favor of the party asserting the defense and give that party the benefit of every reasonable inference" ( Fireman's Fund Ins. Co. v. Farrell, 57 A.D.3d 721, 723, 869 N.Y.S.2d 597; see Courthouse Corporate Ctr. LLC v. Schulman, 74 A.D.3d 725, 727, 902 N.Y.S.2d 160; Greco v. Christoffersen, 70 A.D.3d at 771, 896 N.Y.S.2d 363; Butler v. Catinella, 58 A.D.3d 145, 147-148, 868 N.Y.S.2d 101). "If there is any doubt as to the availability of a defense, it should not be dismissed" ( Federici v. Metropolis Night Club, Inc., 48 A.D.3d 741, 743, 853 N.Y.S.2d 160).

Here, while the Supreme Court properly granted those branches of the plaintiffs' motion which were to dismiss the third and tenth affirmative defenses, it should have denied that branch of the plaintiffs' motion which was to dismiss the first...

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  • 1710 Owners Corp. v. Sussman
    • United States
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    • April 25, 2023
    ... ... (CPLR 3211[b]; see Galasso, Langione & Botter, LLP v ... Liotti, 81 A.D.3d 880, 882, 917 N.Y.S.2d ... ...
  • Mazzei v. Kyriacou
    • United States
    • New York Supreme Court — Appellate Division
    • September 26, 2012
    ...one or more defenses, on the ground that a defense is not stated or has no merit” (CPLR 3211[b]; see Galasso, Langione & Botter, LLP v. Liotti, 81 A.D.3d 880, 882, 917 N.Y.S.2d 664). “[W]hen moving to dismiss or strike an affirmative defense, the plaintiff bears the burden of demonstrating ......
  • Barretti v. Detore
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    • May 1, 2012
    ...which was to dismiss those affirmative defenses, in effect, pursuant to CPLR 3211(b) ( see generally Galasso, Langione & Botter, LLP v. Liotti, 81 A.D.3d 880, 882, 917 N.Y.S.2d 664;Coppa v. Fabozzi, 5 A.D.3d at 718, 773 N.Y.S.2d 604). Thus, we need not reach those branches of CML's motion w......
  • Ochoa v. Townsend
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    • New York Supreme Court — Appellate Division
    • October 19, 2022
    ...merit as a matter of law (see id. ; Mazzei v. Kyriacou, 98 A.D.3d 1088, 1088–1089, 951 N.Y.S.2d 557 ; Galasso, Langione & Botter, LLP v. Liotti, 81 A.D.3d 880, 882, 917 N.Y.S.2d 664 ). However, the Supreme Court should have denied that branch of the plaintiff's motion which was, in effect, ......
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