Opinion
2164
November 13, 2003.
Order, Supreme Court, Bronx County (Stanley Green, J.), entered on or about October 22, 2002, which denied the parties' respective motions for summary judgment as to plaintiff's second cause of action for slander of title, unanimously affirmed, without costs.
Donald A. Derfner, for plaintiff-respondent-appellant.
Tahirih M. Sadrieh, for defendants-appellants-respondents.
Before: Buckley, P.J., Mazzarelli, Andrias, Sullivan, Marlow, JJ.
The intervention of a subsequent clarifying decision in this case ( 96 N.Y.2d 468) provides sufficient cause to entertain a second motion for summary judgment by defendants (Varsity Tr. v. Board of Educ., 300 A.D.2d 38, 39). However, the first element of plaintiff's claim — "a communication falsely casting doubt on the validity of complainant's title" (Brown v. Bethlehem Terrace Assoc., 136 A.D.2d 222, 224) — has already been established by the Court of Appeals' ruling that the purported liens filed against the premises were invalid ( 96 N.Y.2d 468, at 474). Defendants' argument that a lien arose upon their advancement of funds to plaintiff's transferor has been rejected ( 96 N.Y.2d, at 473-474). As to the second element, the filing of the invalid liens after the parties entered into "an in rem installment agreement for the payment of $64,000 with respect to noticed liens for real estate taxes, water, sewer rent and emergency repairs" ( 271 A.D.2d, at 414-415) that "'purported to settle all outstanding liens'" ( 271 A.D.2d, at 414) raises a factual question as to whether the filing constitutes a communication "reasonably calculated to cause harm" (Brown, at 224; see also Iuliano v. Romano, 225 A.D.2d 493). While the complaint did not adequately plead special damages (see Drug Research Corp. v. Curtis Pub. Co., 7 N.Y.2d 435, 440-41), the defect was remedied in plaintiff's opposing affidavits, and the IAS court providently exercised its discretion in accepting a de facto amendment of the pleadings (CPLR 3025[b]; see Edenwald Contr. Co. v. City of New York, 60 N.Y.2d 957, 959). Plaintiff has offered evidence of a lost sale at a price of $525,000. However, defendants assert that the building was ultimately sold for a considerably greater sum, raising an issue of fact as to damages (see Childers v. Commerce Mtge. Invs., 63 Ohio App.3d 389, 393, 579 N.E.2d 219, 222; see also Bamira v. Greenberg, 295 A.D.2d 206, 207; Marcus v. Bressler, 277 A.D.2d 108, 110). Although other expenses may have been incurred, such as operating expenses and real estate taxes, these are not documented in the record, leaving a factual question as to the special damages element of plaintiff's cause of action. Finally, plaintiff's restyling of his claim to include injurious falsehood is inconsequential since the elements of that cause of action are essentially identical to slander of title (compare Tolisano v. Texon, 144 A.D.2d 267, 272 [Smith, J., dissenting],revd on dissenting op 75 N.Y.2d 732, with Brown, 136 A.D.2d at 224).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.