Noel v. Interboro Mutual Indemnity Insurance

31 A.D.2d 54, 295 N.Y.S.2d 399, 1968 N.Y. App. Div. LEXIS 2807

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 26, 1968
• Status: Published

Opinions

Tilzer, J.

In filing his note of issue below the plaintiff designated his second cause of action as a “ Prima facie tort of business interference.” In denying the defendants’ motion to dismiss such cause as barred by the one-year Statute of Limitations applicable to defamation actions, Special Term gave its sanction to this designation, holding that the action sounded in prima facie tort and that the six-year statute applied.

On this appeal the plaintiff while withdrawing the denomination ‘ ‘ prima facie tort ’ ’ to the second cause of action, and although decrying the constrictive effect of labels in the classification of tort actions, now characterizes the defendants’ conduct as injurious falsehood or interference with economic relations.

The issue of course is not the name that plaintiff may give to his second cause of action but the ascertainment of the Statute of Limitations applicable to its allegations. '‘ In applying a Statute of Limitations * * * ‘We look for the reality, and the essence of the action and not its mere name. ’ ” (Morrison v. National Broadcasting Co., 19 N Y 2d 453, 459.) The second cause of action (after repeating the allegations of the first cause of action for breach of contract) charges that “ defendants willfully and maliciously issued, published and widely circulated a bulletin * * * designed intentionally to discredit and harm the plaintiff with each and every said person ” and that “As a result of the aforesaid conduct of the defendants, and each of them, plaintiff has suffered great loss and expense * * * his [plaintiff’s] good name, business and credit have been adversely affected and seriously impaired * * * and he has suffered * * * impairment of health ’ ’. This cause of action sounds in defamation. “ Defamation is defined in terms of the injury, damage to reputation, and not in terms of the manner in which the injury is accomplished.” (Morrison v. National Broadcasting Co., supra, p. 458.) Plaintiff may not circumvent the one-year limitation period applicable to defamation actions by misdescribing the tort as injurious falsehood or interference with economic relations. ‘ ‘ A person possessing a cause of action in libel or slander may not avoid the statute of limitations applicable to such a cause of action by the device of claiming that the cause of action is an action on the case to which a longer statute of limitations is applicable.” (Dubourcq v. Brouwer, 124 N. Y. S. 2d. 61, 62 [McNally, J.], affd. 282 App. Div. 861; Metromedia, Inc. v. Mandel, 21 A D 2d 219, 222; Crosby v. Reilly, 20 A D 2d 561; Alpert v. Gordon, 15 A D 2d 673; Green v. Time, Inc., 147 N. Y. S. 2d 828, 830, affd. 1 A D 2d 665, affd. 3 N Y 2d 732; Marcus v. Textron, Inc., 12 Misc 2d 529, Steuer, J.; Best Window Co. v. Better Business Bur., 2 Misc 2d 55, 58-59, McGivern, J.; Klein v. Federation Bank & Trust Co., 36 Misc 2d 885, 886; Quigley v. Hawthorne Lbr. Co., 264 F. Supp. 214, 218 [U. S. Dist. Ct., S. D. N. Y., 1967].) Nor may plaintiff avoid the one-year statute by asserting that defendants’ bulletin, deterred third persons from doing business with him. “' A communication is defamatory * * * if it tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him.’ ” (Morrison v. National Broadcasting Co., supra, p. 458.)

The order should be reversed, on the law, with costs and disbursements, and defendants’ motion for summary judgment dismissing the second cause of action granted.