Background
This is the second time Leffler v. Kotick has reached the First Department. In the underlying action, plaintiff Marc Leffler sued defendant Joel M. Kotick — who appeared pro se throughout — for defamation, alleging that Kotick made false statements to a third party accusing Leffler of committing and suborning perjury at trial. In the first appeal, decided in 2020 (Leffler v Kotick, 187 AD3d 543 [1st Dept 2020]), the First Department found that Leffler had established, prima facie, that Kotick made substantially false statements “to a nonprivileged party” accusing him of perjury, and that Kotick failed to create a triable issue of fact.
On remand, Kotick moved for summary judgment again, this time asserting that his defamatory statements were protected by an absolute or qualified privilege — a defense he had deliberately chosen not to raise in his initial summary judgment motion. His stated reason: he preferred the case be dismissed on the merits rather than on a procedural privilege ground. Supreme Court (Arthur F. Engoron, J.) denied the motion, finding the privilege issue precluded by the law of the case. Kotick appealed. The First Department unanimously affirmed.
The Court’s Holding
The First Department held that the law of the case doctrine bars Kotick from asserting privilege as a basis for summary judgment on the second round. The 2020 appellate decision expressly stated that Leffler established prima facie that Kotick made statements to “a nonprivileged party” — language that is not merely descriptive but constitutes a legal determination on the issue of privilege. That determination is the law of the case and may not be relitigated.
The court rejected Kotick’s argument that privilege was never actually litigated in the first proceeding and that he had no prior opportunity to address it. To the contrary, the record showed that Kotick deliberately declined to raise the privilege defense in his initial motion because he wanted dismissal on the merits of the accusations. The court invoked the principle that a point “could have been raised in [his] prior appeal . . . , which culminated in this Court’s affirmance” — that point is waived. The motion court had independently reached the issue and found the statements were not privileged, and the First Department had affirmed. There was nothing left to litigate on privilege.
Key Takeaways
- The law of the case doctrine applies to legal conclusions embedded in prior appellate decisions, including findings that statements were made to “a nonprivileged party” — a defendant cannot subsequently relitigate privilege by characterizing it as a defense never previously addressed.
- Strategic waiver of a defense — here, deliberately withholding privilege from a summary judgment motion — carries binding consequences on remand: a party cannot strategically pick and choose defenses for subsequent motions after an adverse appellate ruling.
- Any argument that could have been raised in a prior appeal that culminated in an affirmance is waived for purposes of subsequent motion practice in the same case.
- Pro se defendants, like represented parties, are bound by the law of the case and appellate waiver principles — the court declined to relax these doctrines based on defendant’s self-represented status.
Why It Matters
This decision is a pointed reminder of the dangers of strategic gamesmanship in summary judgment practice. Defendants who deliberately withhold a defense — here, privilege — in order to pursue what they perceive as a stronger or more satisfying ground for dismissal will be held to that strategic choice if the first motion fails. The law of the case doctrine and appellate waiver principles together create a system in which parties bear the consequences of their litigation choices across successive proceedings in the same case.
For defamation practitioners, the case illustrates the particular importance of preserving and briefing the privilege defense at the first available opportunity, especially in cases involving statements made in judicial or quasi-judicial contexts where absolute privilege may be available. Once an appellate court characterizes a communication as directed to “a nonprivileged party,” that characterization will foreclose subsequent privilege arguments in the same litigation, even if the analysis in the original opinion was focused on other issues. The decision also reinforces that the law of the case is a real and consequential doctrine, not merely a discretionary guideline that courts apply loosely.