Cave v. Foley , 651 N.Y.S.2d 897 ( 1996 )

—In an action to recover damages, inter alia, for defamation, the plaintiff William O. Cave appeals from a judgment of the Supreme Court, Nassau County (Robbins, J.), dated October 19, 1995, which, upon a jury verdict, is in favor of the defendant, Margie Ann Foley, and against him awarding her compensatory and punitive damages on her counterclaim for defamation in the principal sum of $275,000.

Ordered that the judgment is affirmed, with costs.

In this case, the defendant, Margie Ann Foley, counterclaimed for damages for libel based upon four letters that the plaintiff, William O. Cave, sent to various individuals. In those letters, Cave claimed that Foley, in her capacity as caregiver and housekeeper for an elderly gentleman, Frederick Schilling, had duped Schilling and stolen some of his money. Cave did not appear at trial and did not present a case-in-chief. During the course of the trial, Cave’s attorney did not present any witnesses or any other documentary evidence to establish that Foley had stolen money from Schilling. At the end of the trial, only Foley’s counterclaim was before the jury.

On appeal, Cave challenges certain evidentiary rulings made by the court with respect to Foley’s counterclaim by which the court excluded certain evidence Cave’s attorney sought to elicit during his cross-examination of Foley. We find that, under the circumstances of this case, any error by the court in excluding the evidence is harmless since this Court is satisfied that the verdict would have been the same even if the evidence had not been excluded (see, CPLR 2002; Cotter v Merdeces-Benz Manhattan, 108 AD2d 173, 180).

Cave’s remaining contentions are without merit. Rosenblatt, J. P., O’Brien, Thompson and Luciano, JJ., concur.