The following e-filed documents, listed by NYSCEF document number (Motion 006) 89, 90, 91, 92, 93, 94, 95, 96, 97, 98, 99, 100, 101, 102, 103, 104, 105, 106, 107 were read on this motion to/for JUDGMENT — DEFAULT & SUMMARY.

Plaintiff commenced this action for defamation against defendants Mariah Carey, MacMillan Publishing Group, LLC D/B/A Henry Holt and Company, Michaela Angela Davis, and Andy Cohen d/b/a Andy Cohen Books pertaining to nine statements directed towards Mr. Carey from defendant Carey's book, "The Meaning of Mariah Carey". Pursuant to her Order dated February 15, 2022, Judge Barbara Jaffe granted defendants Macmillan Publishing Group, LLC d/b/a Henry Holt and Company, Michaela Angela Davis and Andy Cohen d/b/a Andy Cohen Books' motion to dismiss the first amended complaint against them in its entirety (Exh B).^[FN1] While the Court did not dismiss the entire action against defendant Mariah Carey (defendant), Judge Jaffe dismissed much of the complaint against her, except for several statements and the fifth and seventh causes of action, providing defendant 20 days to file an answer (Exhs A & B).

Plaintiff moves here for a default judgment as to liability against defendant Carey on the [*2]remaining two causes of action, arguing that defendant Carey's unverified answer dated March 22, 2022 is a nullity and that she failed to answer plaintiff's verified complaint. In the alternative, plaintiff seeks summary judgment on both causes of action and three alleged defamatory statements and an order dismissing all of defendant's affirmative defenses, except for the fourth, as well as her counterclaim, pursuant to CPLR 3211(b), on the ground that they lack merit.^[FN2]

Default Judgment Based Upon Defendant Carey's Unverified Answer:

Plaintiff relies upon, amongst others, Lepkowski v State, which provides that "[p]ursuant to CPLR 3022, 'when a pleading is required to be verified, the recipient of an unverified or defectively verified pleading may treat it as a nullity provided that the recipient 'with due diligence' returns the [pleading] with notification of the reason(s) for deeming the verification defective'. We have never specified a uniform time period by which to measure due diligence. A defendant who does not notify the adverse party's attorney with due diligence waives any objection to an absent or defective verification (1 NY3d 201 (2003); quoting Matter of Miller v Board of Assessors, 91 NY2d 82 (1997); CPLR 3022). Plaintiff argues that defendant Carey's unverified answer was rejected by plaintiff within twelve hours and that defendant Carey failed to pursue options to remedy the filing, such as signing the answer, resulting in a willful default (Exh D). Plaintiff maintains that defendant Carey's attorney does not have the option available under CPLR 3020(d)(3) to verify the answer since Ms. Carey maintains a residence in New York.

While plaintiff contends that an attorney verified complaint is entitled to a verified answer, the Court has considered the following "Verification" by Richard A. Altman, attorney for plaintiff displayed in the end of the complaint:

Richard A. Altman affirms . . . that I am the attorney for plaintiff in this action, that I know and have read the contents of the foregoing complaint, and that the allegations in the complaint are true to my own knowledge, except as to matters alleged upon information and belief, and as to those matters I believe them to be true. The sources of my information and grounds of my belief as to all matters in the foregoing document not stated to be made upon my knowledge are review of documents and conversations with the plaintiff. (Exh A, p 18).

The Court finds such verification by Mr. Altman to be insufficient to demonstrate any personal knowledge of the facts as he asserts that the allegations provided are true to his own knowledge and he believes them to be true. He further states that those not stated upon his knowledge are based on review of documents and discussions with his client. Mr. Altman cannot attest to the personal details of the subject statement, which describes experiences of the individual parties. "A complaint verified by an attorney, although permissible under CPLR 3020(d)(3) . . . is insufficient for purposes of CPLR 3215(e) when the attorney lacks personal knowledge of the facts constituting the claim" (Joosten v. Gale, 129 AD2d 531 (1st Dept 1987). "The amended complaint being without verification it was unnecessary that the answers to it should be verified" (Brooks Bros. v. Tiffany, 117 A.D. 470 (1st Dept 1907)).

It should be noted that that CPLR 3020(b) provides instances where an answer must be verified, none of which applies to this matter (e.g., "when the complaint charges the defendant with having confessed or suffered a judgment, executed a conveyance, assignment or other [*3]instrument ). Nonetheless, "since plaintiff does not claim that [he] was prejudiced by the submission of the defective verification, the defect should be ignored" (Duerr v. 1435 Tenants Corp., 309 AD2d 607 (1st Dept 2003)). "We take cognizance of the court's discretionary authority to excuse lack of verification where a substantial right of a party is not prejudiced" (Deepdale Gardens Third Corp. v. Bechky, 104 AD2d 846 (2nd Dept 1984)). The Court notes that Judge Jaffe's Order directed that defendant serve an "answer" within 20 days, without specifying that it be verified (Exh B, p 27). Thus, plaintiff's motion for a default judgment based upon defendant Carey's unverified answer is denied.

Summary Judgment on Liability on the Remaining Causes of Action:

Plaintiff depends heavily upon Judge Jaffe's decision dated February 15, 2022, stating that it has been judicially determined that three statements written in defendant Carey's book are defamatory per se, which is the law of the case. An affidavit and prior motion papers were submitted in support of plaintiff's motion, emphasizing the falsity of the statements.

Plaintiff asserts that he maintains his status as a private person complaining of private matters, thus not requiring a showing of malice for a defamation claim. Moreover, plaintiff claims that the only remaining issue relates to the sole defense available for defendant regarding the truth of the statements, since defendant Carey waived the defenses of whether the statements were uttered with malice or that plaintiff is a public figure by failing to raise them in her prior motion or answer under CPLR 3211(e). "However meritorious the affirmative defense might have been, the law is settled that a jurisdictional defense not asserted in the first responsive pleading, whether answer or pre-answer dismissal motion pursuant to CPLR 3211, is waived" (McGowan v. Hoffmeister, 15 AD3d 297 (1st Dept 2005); CPLR 3211[e]). The Court is not convinced by plaintiff's argument that defendant Carey waived her defenses relating to malice and plaintiff's status as a public figure since defendant raised it in its prior motion to dismiss claims "involving public petition and participation" under Civil Right Law § 76-a and discussed the truth behind the passages in defendant Carey's memoir, as this Court will further discuss (NYSCEF doc 61).

First, the Court notes that Judge Jaffe stated that statement 6 is "sufficient to support the fifth cause of action" and that because statement 8 is a "factual statement that can be disproven the statement pleads a cause of action for defamation per se" (Exh. B at 17-20). Defendant contends that seven of the initial nine statements were dismissed by the Court, including the sixth cause of action, which is predicated on Statement 7. Judge Jaffe indicated the following in her decision on statement 7, prior to its dismissal:

And yet, the statement as a whole expresses Carey's confusion at plaintiff's intent in telling her that he had a plan to silence her stepfather and that all he needed was five thousand dollars, which conversation panicked her. In this statement, plaintiff's life is described as a "long history of violence, of being mixed up with shady characters and shady situations, and there was no telling what he might do for money. To that extent, it conveys factual assertions of plaintiff's violent past and that he had agreed to perform potentially reprehensible acts for money in the past, as evidenced in his participation in the criminal case. When read in this context, the average reader could reasonably conclude that the statement implies that plaintiff would have agreed to inflict violence on their stepfather in exchange for money. Consequently, statement 7 is actionable for defamation. (Exh B, p 18).

However, the Court later provided that "defamation, apart from defamation per se, is not [*4]actionable absent special damages" and that "[t]he only statements that are actionable for defamation are statements 1 and 7", which it later found that plaintiff failed to plead (Id. at 20-21). Given Judge Jaffe's finding that plaintiff did not plead special damages, this Court finds that statement 7 is no longer applicable, with only the following two statements remaining in this defamation action:

Statement 6: He was in the downtown New York scene in the late eighties. He worked in some of the hippest bars and clubs. He was strikingly handsome and occasionally worked as a model. He was well known and well liked. He discreetly supplied the beautiful people with their powdered party favors. He was diabolically charismatic.

Statement 8: At one point we were all hanging out together at the house, and Morgan proceeded to get spectacularly inebriated. When he disappeared for a bit, my mother turned directly to her usual dramatics. "Where's Morgan?" she bellowed. "I can't find Morgan!" Mind you, Morgan was a thirty-something grown man, but still my mother was in a self-induced panic. "I can't find Morgan!" She called his hotel room repeatedly, but there was no answer. So, what did she do? She called the cops. My mother called the cops in Aspen, Colorado, to find my nonwhite, sometimes drug dealing, been-in-the-system, drunk-ass brother. The cops came to the hotel, and it was a whole big drama. She asked them to break down his hotel door, behind which it turned out Morgan was lying naked, butt up, passed out on the bed. The news spread like wildfire throughout the town, and that, ladies and gentlemen, was the last time Morgan and Cop Caller Mom were invited to spend Christmas with me in Aspen. I really don't want a lot for Christmas. Particularly not the cops.

Defendant opines that issues of fact exist involving her defenses and whether the remaining statements are substantially true and were not published with actual malice.

"Summary judgment is a drastic remedy which should not be granted if there is a material and triable issue of fact presented. If there is any doubt as to the existence of such an issue, or if the issue is arguable, a motion for summary judgment should be denied" (DuLuc v. Resnick, 224 AD2d 210 (1st Dept 1996)). "Defamation is the making of a false statement which tends to expose the plaintiff to public contempt, ridicule, aversion or disgrace, or induce an evil opinion of him in the minds of right-thinking persons, and to deprive him of their friendly intercourse in society. To create liability for defamation there must be: (a) a false and defamatory statement concerning another; (b) an unprivileged publication to a third party; (c) fault amounting at least to negligence on the part of the publisher; and (d) either actionability of the statement irrespective of special harm or the existence of special harm caused by the publication" (Franklin v. Daily Holdings, Inc., 135 AD3d 87 (1st Dept 2015)).

"Truth is an absolute defense to a cause of action based on defamation" (Silverman v. Clark, 35 AD3d 1 (1st Dept 2006)). "A defamation action is subject to an absolute defense that the alleged defamatory statements are substantially true. Plaintiffs bear the burden of proving that the statements are false, and the inquiry only advances to the issues of whether the statements are defamatory or published with malice after their falsity is established" (Proskin v. Hearst Corp., 14 AD3d 782 (3rd Dept 2005)).

In the answer, defendant Carey argues that plaintiff's claims are barred, pursuant to NY Civil Rights Law § 76-a, otherwise known as the anti-SLAPP statute, because the passages from Ms. Carey's book were not published with "actual malice - - i.e., knowledge or recklessness with respect to the truth or falsity of the statements" (Exh C, p 20). Although plaintiff claims there is [*5]no requirement of malice since he is a private person complaining of private matters, Judge Jaffe already ruled that "defendants demonstrate the applicability to this case of Civil Rights Law § 76-a (1)(a)(2)" and that "plaintiff fails to demonstrate that the book falls outside the scope of New York's anti-SLAPP statute" (Exh B, p 9-10). Pursuant to Civil Rights Law § 76-a(2), "In an action involving public petition and participation, damages may only be recovered if the plaintiff, in addition to all other necessary elements, shall have established by clear and convincing evidence that any communication which gives rise to the action was made with knowledge of its falsity or with reckless disregard of whether it was false, where the truth or falsity of such communication is material to the cause of action at issue" (McKinney). "The actual malice rule requires a public figure to prove by clear and convincing evidence that a defamatory statement was published with knowledge that it was false or with reckless disregard of whether it was false or not" (Stepanov v. Dow Jones & Co., 120 AD3d 28 (1st Dept 2014)).

Considering the above applicable law, the Court finds that genuine issues of fact exist regarding the truth of the two statements and whether there was actual malice in expressing them, which plaintiff describes in his affidavit as a "lie" and denies (Plaintiff Aff, 1, 3, & 12). According to defendant Carey, her mother, a photographer, and a hairstylist were aware that plaintiff was dealing drugs and/or providing cocaine to others (Defendant Aff, 3). Defendant Carey stated that it "was inner-circle common knowledge at the time that plaintiff was heavily involved in the Manhattan night life scene and that he often was in possession of cocaine and provided it to members of the night life crowd that he associated with" (Id). As to statement 8, defendant stated that plaintiff spent time in the Sagamore facility on Long Island and that he was "implicated in a murder-for-hire conspiracy" (Id at 4). In consideration of the foregoing, the Court denies plaintiff's motion for summary judgment, given the conflicting testimony in the parties' affidavits and the clear issues of fact that must be resolved at trial.

Motion to Dismiss Defendant Carey's Affirmative Defenses and Counterclaim:

"On a motion to dismiss affirmative defenses pursuant to CPLR 3211(b), the plaintiff bears the burden of demonstrating that the defenses are without merit as a matter of law. In deciding a motion to dismiss a defense, the defendant is entitled to the benefit of every reasonable intendment of the pleading, which is to be liberally construed. A defense should not be stricken where there are questions of fact requiring trial" (534 E. 11th St. Hous. Dev. Fund Corp. v. Hendrick, 90 AD3d 541 (1st Dept 2011)). As indicated above, issues of fact exist at this stage of the action, as both parties rely primarily upon their contradictory affidavits. Plaintiff has not demonstrated a lack of merit as a matter of law in the majority of Ms. Carey's affirmative defenses.

Nonetheless, the Court shall proceed to address some of defendant Carey's affirmative defenses in more detail. Although plaintiff asserts that the Judge Jaffe's decision barred defendant Carey's affirmative defenses on #1 (failure to state cause of action) and #5 (no substantial basis), this Court finds that Judge Jaffe did not prohibit them, and plaintiff failed to demonstrate that either of the two defenses are without merit as a matter of law. The same is true regarding #13 (defendant's incorporation of all defenses and arguments in its motion to dismiss), which was not rejected by Judge Jaffe and is not rejected by this Court. Defendant's affirmative defense #10 regarding the anti-SLAPP statutes and absence of actual malice shall not be dismissed since it was provided in the answer (Exh C, p 20). Affirmative defense #6 (waiver, estoppel, ratification), is not identical to #4 (truth), and plaintiff failed to demonstrate that #6 is without merit as a matter of law. The same is true for affirmative #3 (failure to mitigate), #8 [*6](acts or omissions of others), and #12 (failure of causation). The Court is not inclined at this time to dismiss the affirmative defense for unclean hands (#7), unjust enrichment (#9), and speculative damages (#11), nor defendant's Counterclaim.

However, "[t]he statute of limitations applicable to defamation claims is one year (CPLR 215[3]), and generally accrues on the date of the first publication" (Hoesten v. Best, 34 AD3d 143 (2006). Although defendant avers that its defense #2 should not be dismissed prior to discovery, she does not contend that the memoir was published on October 29, 2020. The Court finds that plaintiff timely commenced this action on March 3, 2021, which is within one-year from the published date. Thus, affirmative defense #2 is dismissed from defendant Carey's answer.

Accordingly, it is hereby

ORDERED, that plaintiff's motion is denied, except to the limited extent that defendant Carey's affirmative defense #2 (statute of limitations) is dismissed.

The foregoing constitutes the Order and Decision of the Court.