Opinion
July 1, 1985
Appeal from the Supreme Court, Nassau County (Levitt, J.).
So much of the appeal as is by defendants Norelle Associates, Inc., Binder, Ward, Mullady and Gonzalez which seeks review of the provision granting plaintiff's motion to dismiss certain counterclaims dismissed, without costs or disbursements. Those defendants are not aggrieved by the portion of the order in question which dismissed counterclaims asserted by other defendants.
Order modified by deleting therefrom the provision granting plaintiff's motion to dismiss the counterclaims, and substituting therefor a provision denying that motion. As so modified, order affirmed insofar as appealed from, without costs or disbursements. Plaintiff's time to reply to the counterclaims of defendants Dahr, Heilweil, Ciantro and Eastern Laboratories, Ltd., is extended until 20 days after service upon it of a copy of the order to be made hereon, with notice of entry.
The counterclaims asserted by defendants Dahr, Heilweil, Ciantro and Eastern Laboratories, Ltd., in this case are based on a letter written by plaintiff's president to one of plaintiff's customers dated September 26, 1983. The statements made in that letter seemed to implicate the defendants, Dahr, Heilweil and Ciantro, former employees of the plaintiff, in a conspiracy to sabotage the quality of the work performed by plaintiff, in contemplation of organizing their own competing enterprise and stealing plaintiff's customers. So read, the statements contained in that letter tend to expose those defendants "to public contempt, ridicule, aversion or disgrace, or induce an evil opinion of [them] in the minds of right-thinking persons" ( Sydney v. MacFadden Newspaper Pub. Corp., 242 N.Y. 208, 211-212; Rinaldi v. Holt, Rinehart Winston, 42 N.Y.2d 369, 379, cert denied 434 U.S. 969; Matherson v. Marchello, 100 A.D.2d 233, 236). The words, taken in their natural meaning, reasonably permit the construction that the statements contained within the letter were libelous ( Schermerhorn v. Rosenberg, 73 A.D.2d 276, 283; Mencher v. Chesley, 297 N.Y. 94, 99). Therefore, the statements can be found to constitute libel per se and those defendants were not required to plead special damages ( Matherson v. Marchello, supra). Additionally, the statements can be construed as disparaging defendants Dahr, Heilweil and Ciantro in their profession or business, which are actionable without proof of special damages ( Nichols v. Item Publishers, 309 N.Y. 596, 601; Four Star Stage Light. v. Merrick, 56 A.D.2d 767, 768; Tedeschi v Smith Barney, Harris Upham Co., 548 F. Supp. 1172). Therefore, the counterclaims asserted on behalf of defendants Dahr, Heilweil and Ciantro should not have been dismissed. Furthermore, the counterclaim asserted on behalf of defendant Eastern Laboratories, Ltd., states a cause of action for disparagement ( see, Payrolls Tabulating v Sperry Rand Corp., 22 A.D.2d 595, 598; White v. Delavan, 17 Wend 49; Marlin Fire Arms Co. v. Shields, 171 N.Y. 384). We make no determination on this appeal as to whether the counterclaims could survive a CPLR 3212 motion for summary judgment or a trial; our inquiry is limited to ascertaining whether the pleadings state any cause of action ( see, Matherson v. Marchello, supra, pp 238-239; Holly v. Pennysaver Corp., 98 A.D.2d 570, 571-572).
Special Term properly granted plaintiff's cross motion to compel the examination of certain nonparty witnesses. Plaintiff has satisfied the requirement that special circumstances be shown, namely, that the information from these entities is necessary in order to prepare for the trial (CPLR 3101 [a] [4]; see, Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3101:22, pp 26-27; 3A Weinstein-Korn-Miller, NY Civ Prac ¶ 3101.32; Wiseman v. American Motors Sales Corp., 103 A.D.2d 230, 240; Gersten v. New York Hosp., 81 A.D.2d 632; Mogollon v. South African Mar. Corp., 80 A.D.2d 636; Matter of Catskill Center v. Voss, 70 A.D.2d 753; Villano v. Conde Nast Pubs., 46 A.D.2d 118, 120; Kenford Co. v. County of Erie, 41 A.D.2d 586). Lazer, J.P., Mangano, Gibbons and Niehoff, JJ., concur.