Garland v. Vermilyea

Appellate Division of the Supreme Court of New York

Garland v. Vermilyea

88 A.D.2d 1044, 452 N.Y.S.2d 265, 1982 N.Y. App. Div. LEXIS 17466

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJune 10, 1982

StatusPublished

Cited by3 cases

This text of 88 A.D.2d 1044 (Garland v. Vermilyea) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Garland v. Vermilyea, 88 A.D.2d 1044, 452 N.Y.S.2d 265, 1982 N.Y. App. Div. LEXIS 17466 (N.Y. Ct. App. 1982).

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Opinion

— Appeal from an order of the Supreme Court at Special Term (Cholakis, J.), entered August 14,1981 in Greene County, which granted defendant’s motion to dismiss the complaint, with leave to replead. This libel and slander action is grounded on allegations that defendant falsely stated that plaintiff had ac[1045]*1045cused another of theft. Since the offensive publication is not defamatory per se, the complaint, to withstand a motion to dismiss, must plead special damages ('Wehringer u Allen-Stevenson School, 46 AD2d 641, affd 37 NY2d 864, cert den 424 US 924; Grinaldo v Meusburger, 34 AD2d 586, 587, app dsmd 27 NY2d 598). This same requirement obtains if the complaint is read as charging a prima facie tort (ATI, Inc. v Ruder & Finn, 42 NY2d 454, 458). Here special damages, defined as “loss of a pecuniary nature” (Bishop v New York Times Co., 233 NY 446, 452), have not been pleaded. The allegation that plaintiff “was required to expend large sums of money” does not allege special damages for it is of insufficient particularity (Roger v McCloskey, 305 NY 75, 81; see, also, Morrison v National Broadcasting Co., 19 NY2d 453, 458), as is the claim that plaintiff has been damaged in the round figure of $1,000,000 (see Drug Research Corp. v Curtis Pub. Co., 7 NY2d 435,441). Order affirmed, with costs. Sweeney, J. P., Main, Casey, Mikoll and Yesawich, Jr., JJ., concur.

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— Appeal from an order of the Supreme Court at Special Term (Cholakis, J.), entered August 14,1981 in Greene County, which granted defendant’s motion to dismiss the complaint, with leave to replead. This libel and slander action is grounded on allegations that defendant falsely stated that plaintiff had ac[1045]*1045cused another of theft. Since the offensive publication is not defamatory per se, the complaint, to withstand a motion to dismiss, must plead special damages ('Wehringer u Allen-Stevenson School, 46 AD2d 641, affd 37 NY2d 864, cert den 424 US 924; Grinaldo v Meusburger, 34 AD2d 586, 587, app dsmd 27 NY2d 598). This same requirement obtains if the complaint is read as charging a prima facie tort (ATI, Inc. v Ruder & Finn, 42 NY2d 454, 458). Here special damages, defined as “loss of a pecuniary nature” (Bishop v New York Times Co., 233 NY 446, 452), have not been pleaded. The allegation that plaintiff “was required to expend large sums of money” does not allege special damages for it is of insufficient particularity (Roger v McCloskey, 305 NY 75, 81; see, also, Morrison v National Broadcasting Co., 19 NY2d 453, 458), as is the claim that plaintiff has been damaged in the round figure of $1,000,000 (see Drug Research Corp. v Curtis Pub. Co., 7 NY2d 435,441). Order affirmed, with costs. Sweeney, J. P., Main, Casey, Mikoll and Yesawich, Jr., JJ., concur.

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88 A.D.2d 1044, 452 N.Y.S.2d 265, 1982 N.Y. App. Div. LEXIS 17466, Counsel Stack Legal Research, https://law.counselstack.com/opinion/garland-v-vermilyea-nyappdiv-1982.

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