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Sklover v. Sack

Supreme Court of New York, Appellate Division, Second Department

January 23, 2013, Decided

2012-01198

Opinion

 [**475]  [*855]   In an action to recover damages for defamation, the defendants appeal from an order of the Supreme Court, Nassau County (Mahon, J.), entered November 10, 2011, which granted the plaintiff's motion for summary judgment on the issue of liability and dismissing their affirmative defenses, and denied their cross motion for summary judgment dismissing the complaint.

Ordered that the order is reversed, on the law, with costs, the plaintiff's motion for summary judgment on the issue of liability and dismissing the affirmative defenses is denied, and the defendants' cross motion for summary judgment dismissing the complaint is granted.

In February 2008, nonparty Daniel Magnus, represented by the plaintiff, commenced an action against his former employer in the United States District Court for the Southern District of New York  [***2] (hereinafter the federal action). Shortly thereafter, Magnus discharged the plaintiff as his attorney and retained the defendant law firm, Sack & Sack, to represent him in the federal action. Shortly after the commencement of the federal action, the parties thereto reached a settlement.

Prior to the filing of the stipulation of discontinuance in the federal action on July 16, 2008, the defendant Jonathan Sack, an attorney at Sack & Sack, sent a letter to the plaintiff accusing him of mishandling Magnus's claims and weakening Magnus's negotiating position. Sack demanded that the plaintiff return all of the fees that Magnus paid to the plaintiff, and advised that Magnus would not pay the outstanding balance of the fees that were charged. In response, the plaintiff sent letters to Sack and Marjorie Kaye, Jr., counsel to Magnus's former employer in the federal action, notifying them that his firm held a charging lien on the proceeds of the settlement. The plaintiff also sent a letter to Sack, with a copy sent to Kaye, proposing a settlement of his claim for the legal fees secured by the charging lien.

On July 10, 2008, by email addressed to the plaintiff and copied to Sack, Kaye sent a response  [***3] to the plaintiff's letter asserting the charging lien initiating a series of email correspondence among the three attorneys. The correspondence culminated in an email written by Sack in which, among other things, he repeated his allegations that the plaintiff mishandled Magnus's claims. Sack proposed a settlement of Magnus's claim, pursuant  [*856]  to which the plaintiff would agree to a return of the fees previously paid to the plaintiff, in consideration of Sack's  [****2]  forbearance from commencing a legal malpractice action on behalf of Magnus if the plaintiff promptly returned the fees. The plaintiff rejected the proposal, and then commenced this defamation action against Sack and his law firm, Sack & Sack, alleging that a number of statements in Sack's email were libelous per se. Following discovery, the plaintiff moved for summary judgment on the issue of liability and dismissing the defendants'  [**476]  affirmative defenses, and the defendants cross-moved for summary judgment dismissing the complaint. The Supreme Court granted the plaintiff's motion and denied the defendants' cross motion.

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102 A.D.3d 855 *; 958 N.Y.S.2d 474 **; 2013 N.Y. App. Div. LEXIS 352 ***; 2013 NY Slip Op 323 ****; 2013 WL 238930

 [****1]  Alan L. Sklover, Respondent, v Jonathan Sack et al., Appellants. (Index No. 12868/08)

Prior History: Sklover v. Sack, 2011 N.Y. Misc. LEXIS 7286 (N.Y. Sup. Ct., Oct. 28, 2011)

CORE TERMS

federal action, settlement, summary judgment, defendants', cross motion, email, judicial proceedings, affirmative defense, issue of liability, charge a lien, summary judgment motion, absolute privilege, former employer, law firm, correspondence, commencement, malpractice, defamation, mishandled, proceeds