Recitation, as required by CPLR § 2219 [a] of the papers considered in the review of this (these) motion(s):

PapersNumbered

Pltff n/m w/KAP affirm, exhs1

Def n/xm w/ DLB affirm, exhs2 [*2]

KAP reply affirm, ehhs3

DLB reply affirm, ehs4 ———————————— 1;————————————&# 151;———————————— ———————————— 1;—————-

Upon the foregoing papers, the decision and order of the court is as follows:

Plaintiff moves for an order, pursuant to CPLR 3214, compelling defendant to respond to plaintiff's interrogatories and document requests. Defendant has cross-moved, pursuant to CPLR 3212, for summary judgment dismissing the complaint. Issue has been joined, and no note of issue has been filed. Therefore, the cross-motion for summary judgment is properly before the court and will be considered on its merits. (CPLR § 3212 [a]; Brill v. City of New York, 2 NY3d 648 [2004]; Myung Chun v. North American Mortgage Co., 285 AD2d 42 [1st Dept. 2001]). The Court considers the cross-motion first, because its disposition will impact the motion in chief.

Arthur Richard Ely ("Ely") was an artist and fashion illustrator, who in February 2009, at age 80, died, leaving behind an extensive collection of his artwork ("Ely art collection"). Plaintiff, Scott Laine ("Laine") claims that on or before May 2008, Ely, by written instrument(s) ("transfer documents"), transferred the Ely art collection to her. Defendant Katherine Pride ("Pride") is the daughter of Ely and duly appointed executrix of his estate. She has contested Laine's ownership of the Ely art collection and the authenticity of the transfer documents. Pride claims that the Ely art collection belongs to the estate.

In this action, Laine has asserted causes of action respectively for: [1] slander per se; [2] tortious interference with contract and prospective business advantage and [3] conversion. All three causes of action, at their core, depend upon resolution of the parties' disputes over the true ownership of the Ely art collection. Thus, the slander cause of action is based upon claims that Pride told others that the transfer documents were forgeries. Interference with prospective business is based upon allegations that Pride interfered with Laine's rights under the transfer documents and told potential art dealers that Laine did not own the Ely art collection. The conversion claim is based upon Laine's allegations that Pride is holding art from the Ely art collection the really belongs to Laine.

In March 2009, Laine previously commenced a federal district court action, in the Southern District of New York, involving the parties' disputes about the ownership of the Ely art collection ("federal action"). Some of the claims asserted were identical to one now made in this action. By opinion and order, dated January 15, 2010, the Hon. Harold Baer dismissed the action, stating as follows:

"..Defendant's motion to dismiss is GRANTED for failure to adequately state a copyright infringement claim and for lack of diversity jurisdiction due to the required joinder of the estate. The dismissal is WITHOUT PREJUDICE to ensure that Plaintiff can refile her federal claim if the contract dispute at the heart of this case is resolved by the New York Surrogate court in her favor..."

In June 2009, while the federal action was pending, Pride commenced an action in the Surrogates Court ("Surrogates Court proceeding") which primarily seeks the return and an accounting of the Ely art collection from Laine. Critical to resolving the [*3]Surrogates Court petition is a determination regarding whether Laine or the Estate owns the Ely art collection, as well as the collateral issue about the enforceability of the transfer documents.

The are three arguments advanced for the cross-motion: [1] there is another action pending in the Surrogates Court; and [2] the action is barred by collateral estoppel and [3] the complaint fails to state a cause of action. Pride claims that this action should be dismissed because the Surrogates Court action raises the same issues and was commenced prior in time. Pride also claims that Judge Baer's decision collaterally estops Laine from litigating her claim in any venue other than the Surrogates Court. Pride argues that, in any event, the first and second causes of action respectively for slander and tortious interference, are insufficient as a matter of law.

Laine argues in opposition that the federal action was dismissed without prejudice and, therefore, she was free to commence this action in the New York State Supreme Court, even though it asserts several causes of action that are identical to those stated in the federal action. As to the Surrogates Court proceeding, Laine denies that it was brought prior in time, since she asserted the same claims in the federal action, and that federal actions was interposed before the Surrogates Court proceeding. Laine also states that Pride has done nothing to advance the Surrogates Court proceeding. Finally, she argues that her claims, as stated, are sufficient under law.

For the reasons set forth below, the court grants the cross-motion only to the extent of dismissing the first cause of action, dismissing the second cause of action in part and otherwise staying the remainder this action, pending determination of the Surrogates Court proceeding.

The court rejects Laine's position that this State action is really only a "continuation" of her federal proceeding and, thus, she filed first in time. Laine has provided no legal authority that two actions, commenced in entirely different courts at entirely different times, can legally be considered the continuation of only one proceeding, simply because they raise identical claims. The court does not believe that such argument otherwise holds weight.

The court also rejects Pride's argument that Judge Baer's decision dismissing the federal action, mandates that plaintiff can proceed only in the Surrogates Court on her disputes. The dismissal of the federal action was based upon that court's lack of jurisdiction, in part because the estate, a necessary party, thwarted any claim of diversity. At the time of the decision, the Surrogates Court proceeding had already been filed. Hence the court noted that the validity of the transfer documents were best decided in the Surrogates Court, which had the necessary expertise to decide disputes regarding the affairs of decedents.

Collateral estoppel applies only when the issue litigated in the prior action is identical to the one raised in the instant action. Lodal Inc. v. Home Ins. Co., 309 AD2d 634 (1st dept. 2003). It does not apply to statements made only by the court in dicta. Sahn v. AFCO Industries, 192 AD2d 480 (1st dept. 1980). The federal court only addressed issues related to its own jurisdiction, it was not considering the issue before this court, which is whether the parties' disputes are best heard in Surrogates or the Supreme Court. Thus, the reference in dicta to proceeding in proceeding in the Surrogates Court is not entitled to an collateral estoppel effect. [*4]

Notwithstanding that Judge Baer's decision may not be entitled to collateral estoppel effect, the court agrees with its reasoning. The Surrogates Court is in the best position to address the parties' issues regarding the validity of the transfer documents and the ownership of the Ely art collection. Since these issues relate directly to the affairs of a decedent, the Surrogates Court has the necessary jurisdiction and expertise to hear the issues. Since the issues are currently before the Surrogates Court, and there are threshold issues in this case, the Surrogates court should be allowed to determine them before this case is resolved.

The court is unpersuaded by Laine's argument that the Surrogates Court proceeding has not moved forward since it was commenced in 2009. The parties each have recourse in the Surrogates Court to address this problem. In any event, a status conference in the Surrogates Court was scheduled for October 25, 2010.

The court is not willing to completely dismiss this case on account of the pending Surrogates Court proceeding. While there are significant overlapping issues, and the resolution of the Surrogates Court proceeding, will necessarily affect all of the claims raised is this action, not all of the claims raised in this action are currently before the Surrogates Court. In this regard, the parties' arguments about whether or not the Surrogates Court can determine all of the claims raised in this action is a red herring.At this time the better course of action is to simply stay this action, pending either final determination in the Surrogates Court. Lispenard Partners, Inc. v. 35 Smoke & Grill, LLC, 74 AD3d 496 (1st dept. 2010).

Pride separately argues that for various reasons the first and second causes of action fail to state a cause of action and should be dismissed.

The first cause of action is for slander per se. Pride claims that the pleading is insufficient because it fails to allege the slander with sufficient particularity; it does not allege slander per se and, consequently, special damages are required, but not plead. Laine claims that she has plead the claim with sufficient particularity and that the claim is for slander per se, which does not require any allegations of special damages. Alternatively, Laine claims she has plead special damages.

CPLR § 3016 (a) requires that the particular words complained of be set forth in a complaint alleging defamation. Paraphrasing is insufficient. Le Sannon Bldg. Corp. v. Dudek, 177 AD2d 390 (1st dept. 1991). A plaintiff must also provide the time, place and manner of the purported defamatory statement and identify to whom it was said. Dillon v. City of New York, 261 AD2d 34 (1st dept. 1999); Grynberg v. Alexander's Inc., 133 AD2d 667 (2nd dept. 1987). The pleading fails to allege any of the specific words forming the claim of slander. It fails to set out when and where any of the statements were made. Although two people to whom the statements were allegedly made are identified, others are simply identified as "colleagues."This is insufficient for pleading purposes and warrants dismissal of the first cause of action.

In view of the insufficiency of the allegations in terms of their particulairty, the court does not reach the other disputed issues regarding pleading special damages. The cross-motion for summary judgment dismissing the first cause of action is granted.The second cause of action seeks damages for tortious interference with "contractual rights and advantageous business prospects." Laine alleges further "the contractual rights interfered with include the contractual rights in the transfer documents. The advantageous business relations include business prospects Laine [*5]had developed as an art consultant." (Complaint ¶51).

In order to establish a validly stated cause of action for tortious interference with contract a plaintiff must the allege the existence of a valid contract between plaintiff and a third party, the defendant's intentional and unjustified procurement of the third party's breach of contract and resulting damages. JM Ball Chrysler LLC v. Marong Chrysler-Plymounth, Inc., 19 AD3d 1094 (4th dept. 2005). Plaintiff argues that because Pride is the executrix of the Ely's estate, the contract(s) on which Laine is relying are not with third parties. Pride, however, is also sued individually, so that to the extent any actions taken by her in an individual capacity interfered with the Laine's rights under the transfer documents, a viable claim has been asserted. Such claim is limited to Pride in her individual capacity only. Although Pride claims the transfer documents are not enforceable, those issues remain to be determined in the Surrogates Court proceeding.Intentional interference with prospective business advantage is a distinct and separate claim from tortious interference with contract. Carvel Corp. v. Noonan, 3 NY3d 359 (2004). It applies to those situations where a third party would have entered into, or extended a contractual relationship with, plaintiff but for the wrongful and intentional acts of the defendant. The elements are: [1] business relations with a third party; [2] the defendants interference with those business relations; [3] the defendant acting with the sole purpose of harming the plaintiff or suing wrongful means and [4] injury to the business relationship. Guard-Life Corp. V. S. Parker hardware MFG. Corp., 50 NY2d 183 (1990). There needs to be a specific claim that the plaintiff was actually and wrongfully prevented from entering into or continuing in a specific business relationship. White v. Ivy, 63 AD3d 1236 (3rd dept. 2009). Pride argues that this cause of action fails because Laine has not identified any actual or specific business relationships that were interfered with. This court agrees. Laine generally identifies that Prides behavior has extended to "members of the faculty and staff at the Fashion Institute of Technology in New York City (complaint ¶48). To the extent there are references to particular persons (e.g. Maria Zervos, Laine McAllister or Frank Paulin), she has not alleged that there was some business specific relationship with any of them that has been interfered with.

Accordingly, the second cause of action is dismissed only to the extent it seeks relief for prospective business advantage. To the extent it seeks relief for interference with contract, the claim may proceed, but onl against Pride in her individual capacity.

Lain's request, in her memorandum of law, to serve an amended complaint is not considered by the Court based on various defects including: failure to cross-move for such relief; failure to include a proposed amended pleading and failure to otherwise provide any sworn statement from the client that would warrant amendment.

Inasmuch as the court has stayed this action, pending the final determination of the Surrogates Court proceeding, the motion for discovery at this time is denied. Issues about what discovery, if any, is necessary in this action, will be addressed following the lifting of the stay.

Conclusion

In accordance herewith it is hereby

ORDERED that the motion to compel defendant to comply with plaintiff's discovery demands is denied, and it is further [*6]

ORDERED that the cross-motion is granted in part and denied in part, and it is further

ORDERED that the first cause of action asserted in the complaint is hereby dismissed, and it is further

ORDERED that the second cause of action asserted in the complaint is dismissed only to the extent that it alleges tortious interference with prospective business and also to the extent that it asserts claims against defendant in her capacity as executrix of the estate Arthur Richard Ely, and it is further

ORDERED that the second cause of action asserted in the complaint may otherwise continue, and it is further

ORDERED that the action, including all remaining claims and counterclaim are hereby stayed until such time as there is a final adjudication In the New York County Surrogates Court proceeding entitled Application of Katherine E Pride against Scott Laine (index No. 0870/2009), and it is further

ORDERED that an relief not otherwise exressly gratned herein is denied, and it is further

ORDERED that this constitutes the decision and order of the court.

Dated: New York, NY

February 18, 2011

SO ORDERED:

__________________

J.G. J.S.C.