Opinion
December 24, 1986
Appeal from the Supreme Court, Tompkins County (Smyk, J.).
On or about March 1, 1985, defendant, as a then executive assistant to the Administrative Judge of the Sixth Judicial District, allegedly gave plaintiff, following the termination of his provisional appointment of three years as a court reporter assigned to a Tompkins County Judge, permission to take a typewriter home for the purpose of completing transcripts. On June 11, 1985, defendant stated in the presence of several court personnel that plaintiff "had no permission to take any typewriter from this court house". When advised that the filing of a felony complaint against him was contemplated by defendant, plaintiff returned the typewriter and demanded an apology from defendant. In response plaintiff received a letter from defendant repeating the allegation previously made orally in which publication of the letter to six other persons was evidenced.
Plaintiff commenced this action for defamation in Tompkins County, based on plaintiff's residence. Defendant moved to dismiss the first cause of action alleged in the complaint for legal insufficiency and the second cause of action for plaintiff's failure to particularize the alleged libelous material. Plaintiff filed a cross motion seeking a change of venue of the action to Cayuga County in the Seventh Judicial District. Special Term granted defendant's motion and denied plaintiff's cross motion. We agree with the determination of Special Term.
Plaintiff's first cause of action attempts to plead slander based on defendant's statement that plaintiff "had no permission to take any typewriter from this court house". Inasmuch as the allegations do not allege slander per se (see, Matherson v Marchello, 100 A.D.2d 233, 236), since they fail to attack plaintiff's professional ability and fall far short of accusing plaintiff of a crime (see, Caffee v. Arnold, 104 A.D.2d 352), the complaint is insufficient for its failure to allege special damages (see, Aronson v. Wiersma, 65 N.Y.2d 592, 594; Privitera v Town of Phelps, 79 A.D.2d 1, 13).
As to the second cause of action, the general rule is that a writing will be considered libelous if it "`tends to expose the plaintiff to public contempt, ridicule, aversion or disgrace, or induce an evil opinion of him in the minds of right-thinking persons, and to deprive him of their friendly intercourse in society'" (Rinaldi v. Holt, Rinehart Winston, 42 N.Y.2d 369, 379, cert denied 434 U.S. 969, quoting Sidney v. MacFadden Newspaper Pub. Corp., 242 N.Y. 208, 211-212). At most, defendant's letter accuses plaintiff, a professional man, of impropriety or other unprofessional conduct on a single occasion only and does not accuse him of general ignorance or lack of skill. As such, the words are not actionable in the absence of special damages (see, Shaw v. Consolidated Rail Corp., 74 A.D.2d 985). The second cause of action, therefore, was properly dismissed by Special Term.
This determination renders a ruling on plaintiff's cross motion academic.
Judgment affirmed, with costs. Kane, J.P., Main, Casey, Yesawich, Jr., and Levine, JJ., concur.