Privitera v. Town of Phelps

79 A.D.2d 1, 6 Media L. Rep. (BNA) 2470, 435 N.Y.S.2d 402, 1981 N.Y. App. Div. LEXIS 9664

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 23, 1981
• Status: Published

Opinions

OPINION OF THE COURT

Simons, J.

The central question on this appeal is whether it is slander per se to charge another with membership in the Mafia. We hold that it is not, but we find that plaintiffs have sufficiently pleaded special damages to sustain their slander cause of action.

Plaintiffs allege in their complaint that in 1977 they were owners of real property located in the defendant Town of Phelps and that defendant DeBar was the head of the town zoning board and its Building Inspector. On June 2, plaintiffs appeared in DeBar’s office with contract purchasers of their land named Durham, intending to assist them in obtaining a building permit as a necessary precondition of the sale. They claim that DeBar refused to issue the permit because, as he stated to the Durhams, plaintiff Samuel Privitera is a “member of the Mafia”, “a criminal”, “[he] has the police at his house all of the time because he is a bad person”. The complaint alleges that DeBar also stated to the Durhams that both plaintiffs are in the “mob”. Based upon this incident, plaintiffs bring this suit against the town and DeBar alleging causes of action for slander, negligence, violation of their civil rights under section 1983 et seq. of title 42 of the United States Code, tortious interference with their business, contract and property rights, and for emotional injury and loss of consortium. They seek compensatory and punitive damages.

Special Term held the complaint failed to state any cause of action and ordered dismissal but conditioned its order by granting plaintiffs leave to replead within 20 days. Plaintiffs have failed to do so, or to stay entry of the final judgment which has now been entered on the order. Accordingly, this appeal is deemed to be from the final judgment (see National Bank of North Amer. v Kory, 63 AD2d 579).

I

A complaint alleging slander is legally sufficient if it pleads the utterance of words of certain classes held actionable per se. All other slander is actionable only upon allegation and proof of special damage (see, generally, Danko v Woolworth Co., 29 AD2d 855; Klein v McGauley, 29 AD2d 418, 420-421; Jordan v Lewis, 20 AD2d 773; Gurtler v Union Parts Mfg. Co., 285 App Div 643, affd 1 NY2d 5). The distinction between spoken words which are actionable per se and those that are not is between certain classes of accusation judged so noxious that pecuniary damage is the natural and probable consequence of the words spoken and those which require proof of resulting injury. It is not that the words are more or less offensive, but rather that their injurious character is a matter of common knowledge in the first instance, permitting the court to take judicial notice of it, and not so in the latter.

It has been said that words constitute slander per se if they impute: (1) the commission of a crime, (2) a loathsome disease, (3) unchaste behavior in a woman, or (4) homosexual behavior, or if they (5) affect plaintiff in his trade, occupation or profession (see, generally, Moore v Francis, 121 NY 199, 203; 2 NY PJI 45-47 [1980 Supp]; 34 NY Jur, Libel and Slander, § 14 et seq.; Prosser, Torts [4th ed], § 112, pp 754-760; 1 Harper and James, The Law of Torts, § 5.9, pp 374-375; Restatement, Torts 2d, § 570). Only one class need concern us here. Either the offending words in this case charged plaintiffs with a crime or plaintiffs must plead and prove special damage.

Long ago, the Court of Appeals held that before words charging plaintiff with a crime became actionable per se, they must impute to plaintiff the commission of an indictable offense upon conviction of which punishment may be inflicted (Anonymous, 60 NY 262, 264; Brooker v Coffin, 5 Johns 188; but see 2 Seelman, Libel and Slander [rev ed], pp 869-870). The rule has been criticized as needlessly restrictive and because it makes civil recovery dependent upon the changing terminology and procedures of the criminal law (see Prosser, Torts [4th ed], p 755; 1 Harper and James, The Law of Torts, § 5.10; 2 NY PJI 45 [1980 Supp]).¹ Nevertheless, the Court of Appeals has not seriously reconsidered or relaxed it apparently for almost 100 years.

The complaint before us does not allege slander per se either directly or by properly pleaded innuendo because it does not allege that DeBar charged plaintiffs with an indictable offense. The Mafia, the dictionary tells us, is a “secret criminal society”. But that is not enough. People are indicted for what they do, not for their associations or beliefs, and membership in an organization, even membership in an organization having a criminal purpose, is not an indictable offense (see Gurtler v Union Parts Mfg. Co., 285 App Div 643, affd 1 NY2d 5, supra [charge that plaintiff was a Communist]). Nor is it slander per se to charge that one is a “bad man”, or a “criminal”, or a “crook” (Klein v McGauley, 29 AD2d 418, supra; Villemin v Brown, 193 App Div 777). Such words are too general to permit defendant to justify the accusation and to hold them actionable per se imposes an undesirable restraint on expression. To come within the class, the words must charge plaintiff with a specific identifiable offense (Klein v McGauley, supra, p 421).

Plaintiffs point out that it is not necessary that the accusation charge a crime in technical language; it is enough that it impute a criminal offense (see Lander v Wald, 218 App Div 514, affd 245 NY 590; Nowark v Maguire, 22 AD 2d 901; Restatement, Torts 2d, § 571, comment c). Thus, they claim, and the dissent agrees, that the complaint is sufficient because by dictionary definition the Mafia engages in “racketeering”, “peddling narcotics” and “gambling”.² Unquestionably, words implying criminal conduct, especially words loaded with the emotional freight of “Mafia”, are offensive and hold the plaintiff up to contempt. But they are not slanderous per se unless they specify a crime or a crime is readily apparent from properly pleaded innuendo (see Tracy v Newsday, Inc., 5 NY2d 134; Selkowe v Bleicher, 286 App Div 1095, 1096; Prosser, Torts [4th ed], pp 748-749; and cf. Harris v New York, Westchester & Boston Ry. Co., 244 App Div 252). The law governing slander differs in this respect from the law governing libel because of the nature of the wrong. The spoken accusation, as distinguished from the written one, is usually unpremeditated, made in the heat of anger, undiscriminating and of limited circulation whereas written accusations usually follow some premeditation and are permanent (1 Seelman, Libel and Slander [rev ed], pp 1-2). In the frequently quoted words of Chief Judge Cardozo : “Many things that are defamatory may be said with impunity through the medium of speech. Not so, however, when speech is caught upon the wing and transmuted into print. What gives the sting to the writing is its permanence of form. The spoken word dissolves, but the written one abides and ‘perpetuates the scandal’ ” (Ostrowe v Lee, 256 NY 36, 39).

II

Though we do not find DeBar’s words slanderous per se, we hold that the complaint may stand because special damages are pleaded, albeit imperfectly. Plaintiffs allege in the “wherefore” clause of the complaint that as a result of defendants’ accusation they lost the sale of their property to the Durhams to their damage of $1,000,000. We harbor some doubt that the pecuniary damage resulting from the loss of the sale of residential land in the rural township of Phelps, New York equals $1,000,000, but undoubtedly that sum is intended to represent both special damages and also general damages which plaintiffs may recover once their cause of action is sustained (see Restatement, Torts 2d, § 575, comment a). The exact damage claimed from the Joss of the sale may be determined by bill of particulars (Penn-Ohio Steel Corp. v Allis-Chalmers Mfg. Co., 9 AD2d 620) but by identifying a specific sale and naming the parties to it, plaintiffs have sufficiently itemized the special loss so that defendants may meet the claim and defend against it (see Reporters’ Assn. of Amer. v Sun Print. & Pub. Assn., 186 NY 437, 442-443; McCullough v Certain Teed Prods. Corp., 70 AD2d 771; Murphy v Klein, 12 AD2d 683; cf. Lincoln First Bank of Rochester v Siegel, 60 AD2d 270, 280).

III

The fifth cause of action seeks to recover damages for emotional and physical distress resulting from the slander and for loss of consortium. It is appropriately pleaded and may stand (see Garrison v Sun Print. & Pub. Assn., 207 NY 1; Restatement, Torts 2d, § 623).

IV

In the remaining causes of action, plaintiffs allege various legal theories by which they seek to impose liability on defendants for damages resulting from defendants’ failure to issue the building permit. It is sufficient answer to those claims that there has béen no failure to issue a permit because plaintiffs have not pursued their administrative remedies. It is doubtful that they have a cause of action for such conduct in any event (see Matter of Town of Cheektowaga v City of Buffalo, 67 AD2d 812; Rottkamp v Young, 21 AD2d 373, affd 15 NY2d 831), but until they exhaust the procedures for administrative review, they have not been deprived of the use of their land and redress must be limited to the slander claim. Accordingly, the causes of action for negligence and interference require no comment, but we address briefly the claim under the Civil Rights Act (US Code, tit 42, § 1983).

To state a claim under the act, plaintiffs must allege: (1) that some person has deprived them of a Federal fight and (2) that the person who deprived them of that right acted under color of State or territorial law (Gomez v Toledo, 446 US 635, 640; Zarcone v Perry, 78 AD2d 70). A municipality is a “person” within the intendment of the act (see Monell v New York City Dept. of Social Servs., 436 US 658), and it is established that the acquisition, enjoyment and alienation of property are among those basic constitutional rights the act protects (see Lynch v Household Fin. Corp., 405 US 538, 544; Jones v Mayer Co., 392 US. 409, 432). Thus, assuming that DeBar, by his conduct, restricted the alienation of plaintiffs’ property, plaintiffs must also allege and prove that his conduct was a matter of official village policy (or custom which had achieved the status of policy) for a municipality is not liable in tort under section 1983 for the acts of an officer or employee solely on the theory of respondeat superior (Monell v New York City Dept. of Social Servs., supra, pp 690-691; Smith v County of Livingston, 69 AD2d 993, 995). Plaintiffs allege only that DeBar’s slander and prior similar utterances were malicious and part of a continuing course of conduct by which defendants intended to defame plaintiffs and prevent the sale of their real estate, allegations insufficient to state a cause of action under the act. But even more significantly, plaintiffs’ claim is essentially one for slander, not unlawful restraint of property, and section 1983 affords no right of action for defamation (Paul v Davis, 424 US 693; cf. Martin v Merola, 532 F2d 191). Thus, their case is distinguishable from Alwin Constr. Co. v Lufkin (360 F Supp 1119) upon which they rely. In Alwin Constr., the complaint alleged that the State Commissioner of Environmental Protection maliciously issued an unauthorized order to “abate pollution”, recorded it and thereby prevented plaintiff real estate developer from selling lots until the size of the lots was altered.

The judgment should be modified to deny defendants’ motion to dismiss plaintiffs’ first and fifth causes of action, and as modified, the judgment should be affirmed.

1 . Professors Harper and James assert that the rule found in section 571 of the Restatement of Torts, second, represents the great weight of American authority. The Restatement states that words are actionable per se if they impute to plaintiff criminal conduct which may be punished by imprisonment in a State or Federal prison (whether plaintiff is subject to such imprisonment or not [see comment 6]), or if they involve moral turpitude. The first clause, imprisonment, is but another way of saying the charge is serious because the Legislature, reflecting contemporary attitudes, has found it so. The second, moral turpitude, provides some flexibility for crimes not indictable but suggesting general public condemnation regardless of the term of imprisonment involved (e.g., indecent exposure). Prosser contends that the courts generally are moving to the position that words are actionable without proof of damages if they charge a person with acts involving a major social disgrace (Prosser, Torts [4th ed], pp 754-756).

2 . There are several definitions for “Mafia”. Webster’s New Twentieth Century Dictionary [2d ed, 1964] defines it as: “in Sicily, a popular hostility to law and government; an alleged secret society * * * for purposes of vengeance, reprisal, and backmail.” More recently Webster’s Third New International Dictionary [1971] defines “Mafia” as “a secret organization composed chiefly of criminal elements and [usually] held to control racketeering, peddling of narcotics, gambling, and other illicit activities throughout the world”.