Opinion
April 16, 1991
Appeal from the Supreme Court, New York County (Carmen Beauchamp Ciparick, J.).
The complaint in this slander action alleged that, after terminating plaintiff, a sales representative, defendant de Martino, corporate vice president and sales manager, in the presence of other employees, stated, "I want to watch you pack your personal belongings to make sure you do not steal any company property". This statement was allegedly repeated in an incident the next day, with defendant also adding plaintiff's conduct was unprofessional. No specials damages were pleaded. Supreme Court's dismissal of the complaint was proper as these statements do not constitute slander per se (Matherson v Marchello, 100 A.D.2d 233). The construction of the first statement urged by plaintiff, that plaintiff had the intent to commit a crime, which statement also injured her in the trade or business, is strained and artificial (Weiner v. Doubleday Co., 74 N.Y.2d 586, 592, cert denied ___ US ___, 109 L Ed 2d 498). In any event, the statement clearly does not amount to the requisite element of an accusation of having actually committed a crime; mere intent or capability to commit a criminal act is insufficient to constitute slander per se (Restatement [Second] of Torts § 571). We also note this statement does not concern any action undertaken or contemplated by plaintiff as an employee or in her trade or business, but rather related solely to post-termination circumstances. The second alleged statement cannot be regarded as incompatible with the proper conduct of plaintiff's trade or business (Aronson v. Wiersma, 65 N.Y.2d 592, 594).
Concur — Sullivan, J.P., Wallach, Asch and Smith, JJ.