Poley v. Rochester Community Savings Bank

Order insofar as appealed from unanimously modified on the law and as modified affirmed without costs, in accordance with the following memorandum: Supreme Court properly granted defendant Warshofs motion for summary judgment dismissing the fourth cause of action of the amended complaint. The uncontroverted facts indicate that no defamatory statement was made by Warshof on the alleged date — September 12, 1986. Plaintiffs did, however, raise a factual issue with respect to whether Warshof made the alleged defamatory statement to one or more officers of APlan Holding Company at some time shortly after that date. Accordingly, we modify the order to grant plaintiffs leave to amend their complaint consistent with the averments set forth in the Heikkila affidavit (see, Blue Cross v Wheeler, 93 AD2d 995; Myers v Coradian Corp., 92 AD2d 643). We reject defendant Warshofs contention that statutory sanctions (see, CPLR 8303-a) should have been imposed. Whether Warshof made the alleged statement is a factual issue precluding an award of sanctions at this time. (Appeals from order of Supreme Court, Monroe County, Tillman, J. — sanctions; summary judgment.) Present — Dillon, P. J., Boomer, Green and Balio, JJ.