8670. NICOLA STAMPONE plf-res, —AGAINST— CONSOLIDATED EDISON, INC. def-ap — Fabiani Cohen & Hall, LLP, New York (Kevin B. Pollak of counsel), for ap — The Yankowitz Law Firm, P.C., Great Neck (Andrew S. Koenig of counsel), for res — ORDER, SUPREME COURT, NEW YORK COUNTY (EMILY JANE GOODMAN, J.), ENTERED ON OR ABOUT JANUARY 30, 2012, WHICH, TO THE EXTENT APPEALED FROM AS LIMITED BY THE BRIEFS, DENIED DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT DISMISSING THE COMPLAINT, UNANIMOUSLY AFFIRMED, WITHOUT COSTS. The motion court properly denied defendants’ motion to dismiss. There are questions of fact as to whether a special employment relationship exists between plaintiff and def, including who controlled and directed the manner, details, and ultimate result of plaintiff’s work (see ; Vincente v. Silverstein Props., Inc., 83 AD3d 586 [1st Dept 2011], lv denied 17 NY3d 710; Bautista v. David Frankel Realty, Inc., 54 AD3d 549, 550 [1st Dept 2008]). THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. ANDRIAS, J.P., FRIEDMAN, DEGRASSE, ROMÁN, GISCHE, JJ. 8671-8672. AMARANTH LLC, plf-ap, AMARANTH ADVISORS L.L.C., PLAINTIFF, v. J.P. MORGAN CHASE & CO., def-res, J.P. MORGAN CHASE BANK, N.A. def — Kleinberg, Kaplan, Wolff and Cohen, P.C., New York (Marc R. Rosen of counsel), and Bartlit Beck Herman Palenchar and Scott LLP, Chicago, IL (John D Byars, III of the bar of the State of Illinois, admitted pro hac vice, of counsel), for ap — Paul, Weiss, Rifkind, Wharton & Garrison, LLP, New York (Eric S. Goldstein of counsel), for res — Judgment, Supreme Court, New York County (O. Peter Sherwood, J.), entered September 9, 2011, dismissing the complaint, unanimously affirmed, with costs. Appeal from order, same court and Justice, entered August 5, 2011, unanimously dismissed, without costs, as subsumed in the appeal from the judgment.
As plaintiff Amaranth LLC (the Fund) conceded at oral argument, and as it concedes in its opening brief, it no longer relies on the defamatory statement alleged in its complaint. Rather, it relies on a statement set forth in an interrogatory response — which was later superseded — stating, in essence, that defendant J.P. Morgan Chase & Co. (JPMC) had concerns about the impact of any potential bridge loan to the Fund on preference risk in the event of the Fund’s bankruptcy. This statement is not “sufficiently analogous” to the statement alleged in the complaint (Rossignol v. Silvernail, 185 AD2d 497, 499 [3d Dept 1992], lv denied 80 NY2d 760 [1992]; see CPLR 3016[a]). Moreover, it is not defamatory, as it simply expresses an opinion based on information available to all potential parties to the potential Fund transaction (see Silverman v. Clark, 35 AD3d 1, 14 [1st Dept 2006]; cf. Guerrero v. Carva, 10 AD3d 105, 112 [1st Dept 2004]). Furthermore, the statement is substantially true, as there is uncontroverted evidence that JPMC did consider, if only briefly, making a bridge loan to the Fund and concluded that it was “less than creditworthy” and a “potential[] preference risk” (see Silverman, 35 AD3d at 14).
