Stafford v. Bickford

Wherein it seeks leave to appeal to Court of Appeals from the order of this court entered on January 30, 1990 (157 AD2d 609), motion denied; and wherein it seeks reargument, motion granted and, upon reargument, the memorandum decision accompanying the aforesaid order is recalled and vacated and the following substituted therefor. Order, Supreme Court, New York County (David Edwards, Jr., J.), entered on or about July 15, 1988, which granted [457] plaintiffs motion striking defendants’ answer unless the defendants appeared for an examination before trial, granted leave to plaintiff to serve an amended complaint and denied defendants’ cross motion for summary judgment dismissing the complaint, reversed, on the law, the plaintiffs motion denied and the defendants’ cross motion granted, without costs. This is an action for defamation. There are two causes of action in the original complaint. In the first, plaintiff alleges that he was slandered at a meeting at the home of Dr. Elaine Hart around May 1979, a meeting attended by Dr. Hart, her lawyer, defendant Nathaniel Bickford, the vice-chairman of the board of plaintiffs employer, Carter Wallace Co., C.O. Hoyt, and the general counsel to Carter Wallace, Ralph Levine. Plaintiff alleges that at the meeting defendant Nathaniel Bickford stated that plaintiff had made a number of harassing phone calls to Dr. Hart, a person with whom plaintiff had had a relationship. At the time, plaintiff alleges, defendant Nathaniel Bickford knew that plaintiff had not made the calls. Defendant Nathaniel Bickford denied that he made the statement but both Hoyt and Levine say that the statement was made. In the second cause of action plaintiff alleges that he was slandered at an unspecified time when defendant Jewelle Bickford told plaintiffs former wife, Anita Stafford, the plaintiff "was a bad man, untrustworthy and responsible for harassing and threatening Dr. Hart.” The first cause of action is barred by the one-year Statute of Limitations applicable to actions for defamation. (CPLR 215.) The complaint is dated March 25, 1982. The first slanderous statement is alleged to have occurred in May 1979. While plaintiff contends that the defendant Nathaniel Bickford should be estopped from claiming the Statute of Limitations because plaintiff was told by Nathaniel Bickford that no meeting would take place and nothing would be said about plaintiff allegedly making harassing phone calls, the argument is untenable in view of the absence of any claim of estoppel in the pleadings. (Florio v Cook, 48 NY2d 792 [1979]; Simcuski v Saeli, 44 NY2d 442 [1978]; Five Platters v Williams, 81 AD2d 534 [1st Dept 1981], appeal dismissed 54 NY2d 752.) Finally, as to the claim against Jewelle Bickford, there is no evidence that the words were published and she is entitled to summary judgment dismissing the complaint. While the motion court did not specifically deny the motion of the defen [458] dant Jewelle Bickford for summary judgment, it is clear that her motion was implicitly denied by the court’s order that she appear for a deposition, and this court has jurisdiction to determine the appeal. Concur—Kupferman, J. P., Carro, Ellerin and Smith, JJ.