Weinstock v. Sanders
| Decision Date | 23 November 2016 |
| Citation | 2016 N.Y. Slip Op. 07947,144 A.D.3d 1019,42 N.Y.S.3d 205 |
| Parties | Sharon Beth WEINSTOCK, appellant-respondent, v. Peter S. SANDERS, respondent-appellant. |
| Court | New York Supreme Court — Appellate Division |
144 A.D.3d 1019
42 N.Y.S.3d 205
2016 N.Y. Slip Op. 07947
Sharon Beth WEINSTOCK, appellant-respondent,
v.
Peter S. SANDERS, respondent-appellant.
Supreme Court, Appellate Division, Second Department, New York.
Nov. 23, 2016.
Zisholtz & Zisholtz, LLP, Mineola, NY (Richard C. Zisholtz of counsel), for appellant-respondent.
Sanders Litigation Associates, P.C., Port Washington, NY (Peter S. Sanders, pro se, of counsel), for respondent-appellant.
RUTH C. BALKIN, J.P., THOMAS A. DICKERSON, JEFFREY A. COHEN, and VALERIE BRATHWAITE NELSON, JJ.
In an action to recover damages for defamation, the plaintiff appeals from an order of the Supreme Court, Nassau County (J. Murphy, J.), entered June 30, 2015, which granted that branch of the defendant's motion which was to dismiss the complaint pursuant to CPLR 3211(a)(7), and the defendant cross-appeals, as limited by his brief, from stated portions of the same order.
ORDERED that the cross appeal is dismissed, as the defendant is not aggrieved by the portions of the order cross-appealed from (see CPLR 5511 ); and it is further,
ORDERED that the order is affirmed insofar as appealed from; and it is further,
ORDERED that one bill of costs is awarded to the defendant.
The plaintiff in this action, Sharon Beth Weinstock, was named as a defendant in an earlier action to extinguish two mortgages (hereinafter the mortgage action). Peter S. Sanders, the defendant in this action, was the attorney for the plaintiffs in the mortgage action. The summons with notice in the mortgage action stated that Weinstock and Joseph Greenblatt, another defendant in that action, had obtained one of the mortgages by fraud. Sanders alleged in an affirmation he submitted in the mortgage action that that mortgage was obtained through a fraud perpetuated by Greenblatt and another person who was not a defendant in the mortgage action, and some time after that mortgage closed, Greenblatt was incarcerated for operating a Ponzi scheme. Sanders also alleged that there had been an assignment of the subject mortgage bearing the name of “Sharon Beth Weinstock” as assignee.
While the mortgage action was still pending, Weinstock commenced this action against Sanders, alleging that she was defamed by the statement in the summons with notice and the allegations in Sanders' affirmation.
Sanders filed a pre-answer motion, inter alia, to dismiss the complaint pursuant to CPLR 3211(a)(7), and for the imposition of sanctions and attorneys' fees against Weinstock and her attorney, Gerald Zisholtz. Weinstock opposed the motion. The Supreme Court granted that branch of Sanders's motion which was to dismiss the complaint pursuant to CPLR 3211(a)(7), holding that the mortgage action was a judicial proceeding to
which absolute immunity attached. The court did not address that branch of Sanders's motion which sought the imposition of attorneys' fees and sanctions based on frivolous conduct.
On a motion to dismiss pursuant to CPLR 3211(a)(7), the pleading must be afforded a liberal construction (see CPLR 3026 ; Leon v. Martinez, 84 N.Y.2d 83, 87, 614 N.Y.S.2d 972, 638 N.E.2d 511 ). The facts as alleged in the complaint are accepted as true, with the plaintiff accorded the benefit of every favorable inference (see id. at 87–88, 614...
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