Summary
holding that claim properly dismissed where plaintiff alleged libel per se since statements failed to impugn basic integrity or credit worthiness of plaintiff's business
Summary of this case from In re Andrew Velez Construction, Inc.Opinion
January 27, 1986
Appeal from the Supreme Court, Westchester County (Rubenfeld, J.).
Order modified, on the law, by granting those branches of defendants' motions which were to dismiss plaintiffs' second cause of action. As so modified, order affirmed, with one bill of costs to defendants appearing separately and filing separate briefs.
On August 16, 1983, Westchester County's Reporter-Dispatch newspaper reported that defendant Charles Mandelstam believed that the sewage disposal system of an office and shopping center which plaintiffs proposed to build in North Salem could increase nitrate levels and "lead to the development of cancer-causing materials in water supplies". Mandelstam, a North Salem attorney and partner in the defendant Inland Vale Farm Co., was reported to have based his "layman's opinions" upon conversations with an engineer who had studied the impact the proposed center would have upon the local environment. The remarks attributed to Mandelstam appeared in the newspaper shortly after the Inland Vale Farm Co. had initiated a proceeding pursuant to CPLR article 78 to review a resolution of the North Salem Planning Board, approving plaintiffs' plans for the proposed development (see, Inland Vale Farm Co. v Stergianopoulos, 104 A.D.2d 395, affd 65 N.Y.2d 718). Several days later, the Reporter-Dispatch reported a denial by the engineer of any mention in the study or in conversations with Mandelstam that high nitrate levels in the water could lead to the development of cancer-causing materials.
Plaintiffs alleged that Mandelstam's reported statements "falsely described" his conversations with the engineer, and defamed plaintiffs' business by "falsely and maliciously cast[ing] plaintiffs as a source and propagator of cancer-causing agents in the local water supply system".
Plaintiffs' first cause of action was properly dismissed by Special Term, insofar as it alleged libel per se, because the statement complained of failed to impugn the basic integrity or creditworthiness of plaintiffs' business (see, Ruder Finn v Seabord Sur. Co., 52 N.Y.2d 663, 670-671; Drug Research Corp. v Curtis Pub. Co., 7 N.Y.2d 435; Hamlet Dev. Co. v Venitt, 95 A.D.2d 798, affd 60 N.Y.2d 677). Since the reported remarks were directed at plaintiffs' product, that is, the proposed development, plaintiffs could maintain an action for disparagement, but only if malice and special damages were alleged (see, Ruder Finn v Seaboard Sur. Co., supra).
Plaintiffs' second cause of action, denominated as one for slander to property, was found by Special Term to have been sufficiently pleaded. We disagree. "`[S]pecial damages * * * must be alleged with sufficient particularity to identify actual losses and be related causally to the alleged tortious acts'" (Tanenbaum v Anchor Sav. Bank, 95 A.D.2d 827, quoting from Lincoln First Bank v Siegel, 60 A.D.2d 270, 279-280; Drug Research Corp. v Curtis Pub. Co., supra; Matherson v Marchello, 100 A.D.2d 233, 235). Here, plaintiffs alleged that the defamatory statement "was a factor" which delayed the granting of permission to commence the project, thereby increasing various construction costs, causing $1,000,000 in damages. Such round figures, with no attempt at itemization, must be deemed to be a representation of general, and not special, damages (see, Drug Research Corp. v Curtis Pub. Co., supra; Matherson v Marchello, supra).
Plaintiffs' third cause of action to recover damages for tortious interference with contractual and precontractual relations failed to allege sufficient facts to make out a claim that defendants, by improper means, interfered with plaintiffs' relationship with its lessee, the United States Postal Service (see, Guard-Life Corp. v Parker Hardware Mfg. Corp., 50 N.Y.2d 183). Finally, the allegations in plaintiffs' fourth cause of action are insufficient to make out a claim of intentional infliction of emotional distress (see, James v Saltsman, 99 A.D.2d 797). Gibbons, J.P., Weinstein, Eiber and Kooper, JJ., concur.