DiSANTO v. FORSYTH (1999)

In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals from so much of an order of the Supreme Court, Suffolk County (Hall, J.), dated January 13, 1998, as denied those branches of his motion which were for summary judgment dismissing the first through sixth counterclaims asserted by the defendant alleging, inter alia, injurious falsehood and prima facie tort.

ORDERED that the order is modified, on the law, by deleting the provisions thereof which denied those branches of the motion which were to dismiss the fourth and fifth counterclaims alleging injurious falsehood and prima facie tort, and substituting therefor provisions granting those branches of the motion;  as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

The plaintiff, Frank DiSanto, commenced this action against the defendant, Sioux Forsyth, the president of Grayarlin Kennels & Farms, Inc., alleging, inter alia, that Forsyth mistreated DiSanto's purebred Doberman pinscher, named Harley.   Forsyth claimed that DiSanto knew that Harley's condition was due to a congenital disease and that DiSanto, inter alia, defamed her by telling people, some of whom she specifically identified, that Harley's condition was due to Forsyth's “mistreat[ment]”, “abuse”, and “malnourish [ment]”.   Forsyth asserted six counterclaims alleging, inter alia, injurious falsehood and prima facie tort.

 Special damages, which are an essential element of both injurious falsehood and prima facie tort, must be pleaded with sufficient specificity (see, Freihofer v. Hearst Corp., 65 N.Y.2d 135, 490 N.Y.S.2d 735, 480 N.E.2d 349;  Nyack Hosp. v. Empire Blue Cross & Blue Shield, 253 A.D.2d 743, 677 N.Y.S.2d 485;  Penn-Ohio Steel Corp. v. Allis-Chalmers Mfg. Co., 7 A.D.2d 441, 184 N.Y.S.2d 58).   Because general allegations of lost sales from unidentified lost customers are insufficient (see, Drug Research Corp. v. Curtis Publ. Co., 7 N.Y.2d 435, 199 N.Y.S.2d 33, 166 N.E.2d 319;  De Marco-Stone Funeral Home v. WRGB Broadcasting, 203 A.D.2d 780, 610 N.Y.S.2d 666), DiSanto's motion to dismiss the fourth and fifth counterclaims alleging injurious falsehood and prima facie tort should have been granted.

The parties agree that the resolution of such issues as whether Harley's condition was exacerbated by Forsyth's conduct must be resolved at trial.   Since the issues of fact regarding Harley's condition are critical to determining whether DiSanto's alleged statements were tortious, those branches of DiSanto's motion which were to dismiss the remaining counterclaims were properly denied (see, Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923, 501 N.E.2d 572;  see also, Howell v. New York Post Co., 81 N.Y.2d 115, 596 N.Y.S.2d 350, 612 N.E.2d 699;  Liberman v. Gelstein, 80 N.Y.2d 429, 590 N.Y.S.2d 857, 605 N.E.2d 344;  Guard-Life Corp. v. Parker Hardware Mfg. Corp., 50 N.Y.2d 183, 428 N.Y.S.2d 628, 406 N.E.2d 445;  Shover v. Instant Whip Processors, 240 A.D.2d 560, 658 N.Y.S.2d 661;  Warlock Enters. v. City Ctr. Assocs., 204 A.D.2d 438, 611 N.Y.S.2d 651;  Jurlique, Inc. v. Austral Biolab Pty., 187 A.D.2d 637, 590 N.Y.S.2d 235;  Pappalardo v. Westchester Rockland Newspapers, 101 A.D.2d 830, 475 N.Y.S.2d 487;  Blowers v. Lawyers Coop. Pub. Co., 44 A.D.2d 760, 354 N.Y.S.2d 239).

MEMORANDUM BY THE COURT.