Rev., Dr. Bill Akpinar, Plaintiff–Appellant–Respondent, v. William Moran, et al., Defendants–Respondents–Appellants. (2011)

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Order, Supreme Court, New York County (Judith J. Gishe, J.), entered April 2, 2010, which granted the part of defendants' motion that sought to dismiss the complaint and denied the part that sought an award of reasonable attorneys' fees and costs, unanimously affirmed, with costs.

Plaintiff commenced this action against William Moran, an attorney, Moran's law firm, and the firm's client, Wachovia Mortgage, FSB, alleging that Moran made defamatory statements about him in a newspaper article about a pending criminal investigation into a mortgage fraud and a lawsuit brought by Wachovia in connection with the fraud in which plaintiff was named as a defendant.   Plaintiff's complaint identifies the allegedly defamatory statements as:  “I'm looking forward to getting him under oath,” and “I want to get to the bottom of many questions myself.”

Even in the context in which these statements were made, which plaintiff urges must be considered, “a reasonable reader would understand the statements defendant made about plaintiff as mere allegations to be investigated rather than as facts ” (Brian v. Richardson, 87 N.Y.2d 46, 53 [1995] ).   The statements neither impute to him the commission of a serious crime nor tend to injure him in his trade, occupation or profession, and therefore do not constitute slander per se (see Harris v. Hirsh, 228 A.D.2d 206, 208 [1996], lv denied 89 N.Y.2d 805 [1996] ).   Nor is plaintiff's reference to the pending criminal investigation and pending civil complaint sufficient to establish the extrinsic facts requisite to a claim for defamation by innuendo (see Cole Fischer Rogow, Inc. v. Carl Ally, Inc., 29 A.D.2d 423, 427 [1968], affd 25 N.Y.2d 943 [1969] ).   His allegation that he lost $17 million in venture funding from unspecified individuals who read the statements fails to adequately plead special damages (see Drug Research Corp. v. Curtis Publ. Co., 7 N.Y.2d 435, 441 [1960];  see also Galasso v. Saltzman, 42 AD3d 310, 311 [2007] ).   The statements are also protected under Civil Rights Law § 74, as a “fair and true” report of a judicial proceeding (see Holy Spirit Assn. for Unification of World Christianity v New York Times Co., 49 N.Y.2d 63, 67–68 [1979];  see also Ford v. Levinson, 90 A.D.2d 464, 465 [1982];  Lacher v. Engel, 33 AD3d 10, 17 [2006] ).

Plaintiff's cause of action for intentional infliction of emotional distress is duplicative of his defamation cause of action (Hirschfeld v. Daily News, 269 A.D.2d 248, 249 [2000] ).   In any event, the statements are not “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency” (Howell v. New York Post Co., 81 N.Y.2d 115, 122 [1993] [internal quotation marks and citations omitted];  see e.g. Slatkin v Lancer Litho Packaging Corp., 33 AD3d 421, 422 [2006] ).

The court properly found that plaintiff's arguments were not frivolous within the meaning of 22 NYCRR 130–1.1.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

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CLERK