SPIVAK v. WALTER THOMPSON INC

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Supreme Court, Appellate Division, First Department, New York.

Helayne SPIVAK, Plaintiff-Appellant-Respondent, v. J. WALTER THOMPSON U.S.A., INC., et al., Defendants-Respondents-Appellants.

Decided: February 18, 1999

TOM, J.P., MAZZARELLI, ANDRIAS and SAXE JJ. Murray Schwartz, for plaintiff-appellant-respondent. Howard J. Rubin, for defendants-respondents-appellants.

Order, Supreme Court, New York County (Ira Gammerman J.), entered July 24, 1998, which, to the extent appealed and cross-appealed from as limited by the briefs, granted defendants' motion to dismiss to the extent of dismissing plaintiff's claims for breach of contract and constructive discharge and denied defendants' motion insofar as it sought dismissal of plaintiff's defamation claim, unanimously affirmed, without costs.

Since plaintiff was, pursuant to the unambiguous language of paragraphs four and five of her agreement with defendants setting forth the terms of her employment, an at-will employee, her causes of action for breach of contract and constructive discharge were properly deemed untenable by the motion court (see, Matter of De Petris v. Union Settlement Assn. Inc., 86 N.Y.2d 406, 633 N.Y.S.2d 274, 657 N.E.2d 269).

The complaint, however, sufficiently pleaded a cause of action for defamation per se, and we accordingly affirm the denial of the motion seeking its dismissal.   The complained of statements appearing in articles published in AdWeek and the Delaney Report were reasonably susceptible of defamatory meaning (see, Howard v. Alford, 229 A.D.2d 996, 645 N.Y.S.2d 208), since the readers of the aforementioned periodicals (see, Aronson v. Wiersma, 65 N.Y.2d 592, 593, 493 N.Y.S.2d 1006, 483 N.E.2d 1138), generally persons professionally interested in matters pertaining to advertising, might well have understood the statements at issue as disparaging of plaintiff's competence as an advertising executive (see, Golub v. Enquirer/Star Group, Inc., 89 N.Y.2d 1074, 1076, 659 N.Y.S.2d 836, 681 N.E.2d 1282).   The viability of a defamation action, such as the one at bar, premised upon statements tending to injury a plaintiff professionally or in business, does not depend upon the pleading of special damages, since a presumption of damage arises from the particular nature of the disparagement (see Liberman v. Gelstein, 80 N.Y.2d 429, 435, 590 N.Y.S.2d 857, 605 N.E.2d 344).

MEMORANDUM DECISION.