Kennedy v. Breen

New York Supreme Court

Kennedy v. Breen

178 Misc. 775, 36 N.Y.S.2d 526, 1942 N.Y. Misc. LEXIS 1826

DecidedJuly 7, 1942

StatusPublished

This text of 178 Misc. 775 (Kennedy v. Breen) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Kennedy v. Breen, 178 Misc. 775, 36 N.Y.S.2d 526, 1942 N.Y. Misc. LEXIS 1826 (N.Y. Super. Ct. 1942).

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Opinion

Froessel, J.

Defendant moves to dismiss the amended complaint for legal insufficiency. 1 he action is for slander. A previous complaint was dismissed on that ground and leave given to plead over. In the original complaint no reference whatever was made to plaintiff’s occupation. The first three paragraphs of the amended complaint are entirely new. They show plaintiff’s employment at [776]*776the Creedmore State Hospital; that by occupation, she is a licensed practical nurse for the sick and insane and is an attendant at said hospital; that she enjoyed a good character and reputation and was respected by nurses, doctors, patients and others. The slanderous words have been reasserted.

In my opinion the amended complaint states a cause of action. To charge that a person in plaintiff’s occupation “ cut my bag because she didn’t find any money in it ” and “ has been cutting up all my clothes, my dresses, stockings and my pocketbook" is, in my opinion, slanderous per se. Not only do these words charge the plaintiff with the crime of malicious mischief (Penal Law, § 1433) but, in my opinion, they refer to and touch plaintiff in her profession or occupation as a practical nurse, whose duties have a wide scope, and definitely impute unfitness on her part.

In view of the foregoing views special damage need not be pleaded, and the motion is, accordingly, denied.

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Froessel, J.

Defendant moves to dismiss the amended complaint for legal insufficiency. 1 he action is for slander. A previous complaint was dismissed on that ground and leave given to plead over. In the original complaint no reference whatever was made to plaintiff’s occupation. The first three paragraphs of the amended complaint are entirely new. They show plaintiff’s employment at [776]*776the Creedmore State Hospital; that by occupation, she is a licensed practical nurse for the sick and insane and is an attendant at said hospital; that she enjoyed a good character and reputation and was respected by nurses, doctors, patients and others. The slanderous words have been reasserted.

In my opinion the amended complaint states a cause of action. To charge that a person in plaintiff’s occupation “ cut my bag because she didn’t find any money in it ” and “ has been cutting up all my clothes, my dresses, stockings and my pocketbook" is, in my opinion, slanderous per se. Not only do these words charge the plaintiff with the crime of malicious mischief (Penal Law, § 1433) but, in my opinion, they refer to and touch plaintiff in her profession or occupation as a practical nurse, whose duties have a wide scope, and definitely impute unfitness on her part.

In view of the foregoing views special damage need not be pleaded, and the motion is, accordingly, denied.

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Bluebook (online)

178 Misc. 775, 36 N.Y.S.2d 526, 1942 N.Y. Misc. LEXIS 1826, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kennedy-v-breen-nysupct-1942.