11786. CREDIT AGRICOLE CORPORATE AND INVESTMENT BANK NEW YORK BRANCH, FORMERLY KNOWN AS CALYON NEW YORK BRANCH plf-res, v. BDC FINANCE, L.L.C. defap — Richards Kibbe & Orbe LLP, Washington, DC (David W.T. Daniels of the bar of the District of Columbia, admitted pro hac vice, of counsel), for ap — White & Case LLP, New York (J. Christopher Shore of counsel), for res — Order, Supreme Court, New York County (Paul G. Feinman, J.), entered September 6, 2012, which, to the extent appealed from, granted plaintiffs’ CPLR 3211(a)(7) motion to dismiss the third counterclaim asserted by defendant BDF Finance, L.L.C. and counterclaim-plaintiffs Black Diamond Capital Management, L.L.C. and Black Diamond CLO 2006-1 (Cayman), Ltd. (collectively, “BD-defendants”) sounding in defamation, and directed that the claim be severed and judgment entered thereon, unanimously affirmed, with costs.
The third counterclaim, alleging libel and slander by plaintiffs’ counsel in connection with statements he made to a reporter that were printed in an article published in a financial news publication, was properly dismissed. The article, fairly read, summarized bankruptcy proceedings in which BD-defendants, who held a majority interest in the debtor’s credit financing obligations, acquired the right to supervise the liquidation of the debtor’s assets. Plaintiffs, the debtor’s minority secured lenders, argued that the sale of the debtor’s assets at auction using a “credit bid” effectively compromised their security interests in the assets. Plaintiffs further argued that the bankruptcy trustee’s motion seeking court approval of the auction sale, in essence, failed to adequately protect their security interests. In this context, plaintiffs’ counsel’s statement to the reporter that it was his belief that the trustee’s motion for court approval was “based upon a misconception that something could be good for a liquidating estate but not for its creditors… [and that] [j]ust because the Corleones pay for fireworks in Little Italy doesn’t mean they’re good guys,” would be interpreted by a reasonable reader to be of and concerning the trustee’s conduct, not that of BD-defendants (see Aronson v. Wiersma, 65 NY2d 592, 594 [1985]). Further, this statement is entitled to absolute privilege because it was made in connection with a judicial proceeding (see Rosenberg v. Metlife, Inc., 8 NY3d 359, 365 [2007]; New York Civil Rights Law §74]).
