PARKER v. TRUSTEES OF SPENCE SCHOOL INC (2024)

Order, Supreme Court, New York County (Eric Schumacher, J.), entered October 12, 2023, which denied plaintiffs' motion for leave to amend the complaint, unanimously affirmed, without costs.

As an initial matter, dismissal of plaintiffs' slander cause of action was not with prejudice, as the judgment did not so indicate, and a with prejudice dismissal must appear from the judgment (see CPLR 5013;  Strange v. Montefiore Hosp. & Med. Ctr., 59 N.Y.2d 737, 739, 463 N.Y.S.2d 429, 450 N.E.2d 235 [1983];  420 E. Assoc. v. Estate of Lennon, 225 A.D.2d 326, 326, 638 N.Y.S.2d 472 [1st Dept. 1996]).  Nor does anything in this Court's prior order (Parker v. Trustees of the Spence Sch., Inc., 205 A.D.3d 459, 168 N.Y.S.3d 56 [1st Dept. 2022]) preclude plaintiffs from pursuing their claims if they are able to cure the infirmities in the original pleading.

Under the circumstances presented, the court providently exercised its discretion in denying leave to amend the complaint (see Davis v. South Nassau Communities Hosp., 26 N.Y.3d 563, 580, 26 N.Y.S.3d 231, 46 N.E.3d 614 [2015]).  The slander allegations in the proposed first amended complaint do not cure the deficiencies in the original complaint.  In our prior decision, we concluded that plaintiffs' slander allegations failed because they did not sufficiently allege damages.  At the time, the subject of the statements was a student and not engaged in a trade, business, or profession so as to bring the case within the parameters of slander per se (Parker, 205 A.D.3d at 459, 168 N.Y.S.3d 56).  Plaintiffs now allege that she is in pursuit of her profession and the defamatory statements have continued to affect her.  However, this does not change the fact that at the time the allegedly defamatory statements were made, she was a student not engaged in a trade or profession (see Shakun v. Sadinoff, 272 App.Div. 721, 74 N.Y.S.2d 556 [1st Dept. 1947];  Cain v. Esthetique, 182 F.Supp.3d 54, 73 [S.D.N.Y. 2016], affd 733 Fed.Appx. 8 [2d Cir. 2018], cert denied ––– U.S. ––––, 139 S.Ct. 1199, 203 L.Ed.2d 227 [2019]).

Nor do we find persuasive plaintiffs' new allegations of special damages, which must consist of the “loss of something having economic or pecuniary value, which must flow directly from the injury to reputation caused by the defamation and not from the effects of the defamation” (Franklin v. Daily Holdings, Inc., 135 A.D.3d 87, 93, 21 N.Y.S.3d 6 [1st Dept. 2015] [internal quotation marks omitted]).  Although plaintiffs have identified certain costs they contend flowed directly from the damage to their daughter's reputation, the expenses they incurred were largely related either to providing emotional support to their daughter (see Stern v. Cosby, 645 F.Supp.2d 258, 288 n 1 [S.D.N.Y. 2009]).

We have considered plaintiffs' remaining arguments and find them unavailing.