Statute of Limitations on Defamation Claim Runs from Date of Statement, Not Date of Discovery

On December 17, 2020, Justice Ostrager of the New York County Commercial Division issued a decision in H. Roske & Assoc., LP v. Burghart, 2020 NY Slip Op. 34220(U), holding that the statute of limitations on a claim for defamation runs from the date of the defamatory statement, not the date of discovery, explaining:

Counterclaim defendants’ motion to dismiss the first counterclaim for defamation is granted. The first counterclaim alleges that Henry Roske of H. Roske & Associates LLP (“the Roske Firm”), defamed Christian Burghart and Schumann Burghart, LLP (“the SB Firm”) by falsely telling a client of the Roske Firm, Vierol, that Schumann (partner at the SB Firm) had incorrectly filed a Visa application prior to his departure from the Roske firm. The alleged defamatory statements made by Henry Roske to Vierol appear in e-mails dated November 2016. Claims for defamation are subject to a one-year statue of limitations from the date of publication of the alleged defamatory statement. Thus, a claim for defamation based on statements made in November 2016 must have been made by November 2017. This action was initiated in December 2017, and counterclaim plaintiffs filed their amended counterclaims in March 2020.

In opposition, counterclaim plaintiffs argue that they could not have brought a defamation claim within the statute of limitations, because the e-mails containing the defamatory words were not produced in discovery in this action until February 2020 and therefore the statute of limitations does not bar plaintiffs’ claims. However, the law on the statute of limitations is specific that the statute of limitations runs from the date of publication of the defamatory words, not discovery.

A party may be estopped from raising a statute of limitations defense where there is an affirmative misrepresentation or active concealment of a fact. That is not the situation here. As Justice Scarpulla previously noted, counterclaim plaintiffs had various methods of discovering the alleged defamation including the opportunity to seek discovery from any party to whom the defamatory statements had been made. Accordingly, because this claim was brought well after the applicable statute of limitations expired, count one for defamation is dismissed.

Counterclaim defendants’ motion to dismiss the second counterclaim for defamation is denied. The second counterclaim for defamation alleges that Henry Roske made defamatory statements about Schumann Burghart, which could be reasonably understood to be about the SB Firm to Ridel, a client of the Roske Firm. These defamatory statements appear in an e-mail dated March 22, 2018. Counterclaim defendants included this counterclaim in their first Answer and Counterclaims filed on August 30, 2019.

While according to the above analysis, this counterclaim should have been filed by March 22, 2019, the Court finds that counterclaim plaintiffs have waived a statute of limitations defense with respect to this particular claim. See CPLR 3211 (e). Counterclaim plaintiffs moved before Justice Scarpulla to dismiss the counterclaims on September 19, 2019 and did not raise a statute of limitations defense. Justice Scarpulla heard oral argument on the motion (008) on November 16, 2019 and counterclaim plaintiffs did not raise a statute of limitations defense. Justice Scarpulla issued a written decision on the motion on February 9, 2020 and declined to dismiss this claim for defamation. As such, the second counterclaim for defamation may proceed.

(Internal citations omitted).

It is not unusual for the statute of limitations to be an issue in complex commercial litigation. Contact Schlam Stone & Dolan partner John Lundin at jlundin@schlamstone.com if you or a client have questions regarding whether claims are barred by the statute of limitations.