Opinion
November 15, 1991
Appeal from the Supreme Court, Niagara County, Koshian, J.
Present — Callahan, A.P.J., Denman, Green, Pine and Davis, JJ.
Order unanimously affirmed with costs. Memorandum: Supreme Court properly determined that defendant's fifth counterclaim, alleging defamation, fails to state a cause of action. The alleged defamatory letter, sent by plaintiff to three of its competitors, is merely a statement of plaintiff's legal position with regard to its employment agreement with defendant, and the existence of covenants not to compete and of confidentiality. The letter does not affect defendant "in his profession by imputing fraud, dishonesty, misconduct or unfitness" (Cappellino v. Rite-Aid of N.Y., 152 A.D.2d 934, 935).
Additionally, the letter is not defamatory when interpreted in view of the extrinsic facts. Defendant's contention that the letter impliedly attributes to him false statements is "`strained, unreasonable and unjustified'" (Tracy v. Newsday, Inc., 5 N.Y.2d 134, 137). "The admitted purpose of an innuendo is to explain matter that is insufficiently expressed" (Tracy v Newsday, Inc., supra, at 136). The "extrinsic facts", that defendant told prospective employers that he was fired and that therefore he was not bound by the restrictive covenants, do not explain any statements in the letter, but add "an entirely new and independent thought that finds no support" in the letter (Tracy v. Newsday, Inc., supra, at 137).