Upon the following papers read on this motion to consolidate and cross-motion to dismiss ; Notice of Motion and supporting papers 66-71 ; Notice of Cross Motion and supporting papers 72-76 ; Answering Affidavits and supporting papers 77-80 ; Replying Affidavits and supporting papers 81-85 ; it is,

ORDERED that the motion by the defendant Zeynal Erdem, aka Zach Erdem, for an order consolidating this action with another action pending in this court (Index No. 606207/2020) [*2]is denied; and it is further

ORDERED that the motion by the plaintiff for an order dismissing the counterclaim of the defendant Zeynal Erdem, aka Zach Erdem is granted; and it is further

ORDERED that the parties are directed to complete a Commercial Division preliminary conference stipulation and order and send a copy of same to chambers.

This is an action by 125 Tuckahoe Lane Corp., a commercial landlord, to recover damages for breach of a commercial lease. The defendant Zeynal Erdem guaranteed the obligations of the defendant Exit Hospitality Group LLC under the lease. Erdem has asserted a counterclaim for defamation against 125 Tuckahoe Lane Corp. He also commenced an action for defamation against 125 Tuckahoe Lane Corp.'s principal, John Flanagan (Index No. 606207/2020). Erdam's allegations in both cases are the same. Erdam alleges that Flanagan published defamatory statements about Erdam's restaurant on a Yelp blog. Erdam moves to consolidate the defamation action against Flanagan with this action. The plaintiff opposes Erdam's motion and cross moves to dismiss the defamation counterclaim.

Erdam contends that the plaintiff's cross- motion is procedurally improper because it was made after the plaintiff replied to the counterclaim. A motion to dismiss is a pre-answer device that must be made before service of a responsive pleading "is required" (CPLR 3211 [e]; Higgit, Practice Commentaries, McKinney's Cons Laws of NY, CPLR C3211:48 at 83). A responsive pleading includes, inter alia, a reply to a counterclaim (Id.). A motion to dismiss for failure to state a cause of action (CPLR 3211 [a] [7]), however, may be made at any time, notwithstanding the service of an responsive pleading (CPLR 3211 [e]; Higgit, supra C3211:49). The plaintiff's motion to dismiss the counterclaim "for failure to state a claim" is a motion to dismiss pursuant to CPLR 3211 [a] [7]. Accordingly, it is not procedurally improper.

Liberally construing the counterclaim, accepting the alleged facts as true, and giving the defendant Zeynal Erdem the benefit of every possible favorable inference (see, Leon v Martinez, 84 NY2d 83, 87-88), the court finds that he has failed to state a cause of action for defamation against the plaintiff, 125 Tuckahoe Lane Corp. It is basic to a claim of defamation that the allegedly defamatory utterances be connected to the party being sued, and an action must be dismissed if no such connection is demonstrated (Bostich v United States Trust Corp., Sup Ct, NY County, Aug. 15, 1995, Shainswit, J. [1995 WL 17962430], affd 233 AD2d 193). There is a presumption of separateness between a corporation and its owners, which is entitled to substantial weight (Mirage Entertainment, Inc. v FEG Entretenimientos S.A., 326 F Supp 3d 26, 36 [SDNY]). Thus, a corporation may be liable for torts committed by its officers or agents acting within the actual or implied scope of their employment or in furtherance of the corporation's business or, if in excess of their authority, when ratified by the corporation (Zausner v Fotochrome, Inc., 36 Misc 2d 84, 85-86; mod on other grounds 18 AD2d 649; Gomez v Loumat Realty Corp., 78 NYS2d 772, 773 [and cases cited therein]). The defendant [*3]Zeynal Erdem does not allege, nor does the record reflect, that John Flanagan made the allegedly defamatory statements on behalf 125 Tuckahoe Lane Corp., as an employee or agent, in furtherance of its business, or that the statements were ratified by 125 Tuckahoe Lane Corp. Erdam's failure to link 125 Tuckahoe Lane Corp. to the alleged defamatory statements is sufficient grounds for dismissal of the counterclaim (see, Bostich v United States Trust Corp., supra; see also, Mirage Entertainment, Inc., supra; MacKay v Real Cars, Inc., 215 AD2d 538, 549). Accordingly, the cross motion is granted.

In view of the foregoing, the motion to consolidate this action with the defamation action against John Flanagan is denied as academic.