Tufano v. Schwartz

95 A.D.2d 852, 464 N.Y.S.2d 211, 1983 N.Y. App. Div. LEXIS 18799

Opinion

— In a libel action, defendant appeals from an order of the Supreme Court, Nassau County (Roncallo, J.), entered July 12, 1982, which denied his motion to dismiss the complaint for failure to state a cause of action or, in the alternative, for summary judgment. Order reversed, on the law, with costs, and motion to dismiss granted. The statement by defendant to Newsday that the cabinets built and installed by plaintiff were a “total misfit”, was merely an expression of dissatisfaction with plaintiff’s performance. As such, it was not libelous per se (Fink v Horn Constr. Co., 58 AD2d 574). Plaintiff’s failure to allege special damages in the complaint, therefore, requires dismissal for failure to state a cause of action (see Ruder & Finn v Seaboard Sur. Co., 52 NY2d 663, 670). Damiani, J. P., Thompson, Bracken and Rubin, JJ., concur.