GLAZIER v. Robert A. Rimbo, et al., Defendants.

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

William GLAZIER, et al., Plaintiffs–Respondents, v. Lyndon HARRIS, et al., Defendants–Appellants, Robert A. Rimbo, et al., Defendants.

Decided: May 08, 2012

MAZZARELLI, J.P., SAXE, MOSKOWITZ, RENWICK, FREEDMAN, JJ. Satterlee Stephens Burke & Burke LLP, New York (James Doty of counsel), for appellants. Rubert & Gross, P.C., New York (Soledad Rubert of counsel), for respondents.

Order, Supreme Court, New York County (Judith J. Gische, J.), entered March 1, 2011, which, to the extent appealed from, denied defendants Lyndon Harris, Lee Wesley, and St. John's Lutheran Church's motion to dismiss the causes of action for defamation as against them, unanimously modified, on the law, to grant the motion as to Wesley, and otherwise affirmed, without costs.

 The complaint states a cause of action for defamation as against defendants Harris and St. John's Lutheran Church since it is pleaded with the required specificity (CPLR 3016[a] ), identifying “the particular words that were said, who said them and who heard them, when the speaker said them, and where the words were spoken” (Amaranth LLC v. J.P. Morgan Chase & Co., 71 A.D.3d 40, 48, 888 N.Y.S.2d 489 [2009], lv. dismissed in part, denied in part 14 N.Y.3d 736, 898 N.Y.S.2d 74, 925 N.E.2d 73 [2010] ).   That every alleged defamatory statement set forth in the complaint is not enclosed in quotation marks does not, without more, render the complaint defective (see Moreira–Brown v. City of New York, 71 A.D.3d 530, 896 N.Y.S.2d 353 [2010] ).

 The challenged statements are actionable as “mixed opinions,” since they imply that the opinions are based upon facts unknown to the church council members who heard the statements (see Guerrero v. Carva, 10 A.D.3d 105, 112, 779 N.Y.S.2d 12 [2004] ).   In the context of the entire publication, the unmistakable import of Harris's statements is that plaintiffs engaged in inappropriate conduct, essentially amounting to exerting undue influence over a parishioner and stealing from the church, and accordingly cannot be trusted.

 The alleged defamatory statements constitute slander per se, since they impugn plaintiffs' reputations in their trade, business or profession, and therefore special damages need not be alleged or proven (see Liberman v. Gelstein, 80 N.Y.2d 429, 434–435, 590 N.Y.S.2d 857, 605 N.E.2d 344 [1992] ).

 The complaint fails, however, to state a cause of action for defamation as against Wesley, since it does not set forth “in haec verba the particular defamatory words claimed to have been uttered by [him]” (see Gardner v. Alexander Rent–A–Car, 28 A.D.2d 667, 280 N.Y.S.2d 595 [1967] ).   The only allegedly defamatory statements attributed to Wesley are that “he had been present with defendant[ ] Harris, during [a] visit to Ms. Lilli Jaffe's residence,” and that “plaintiffs had been visiting Ms. Jaffe and taking care of her to the exclusion of other parties such as himself.”   Neither of these statements is actionable.   Plaintiffs otherwise allege that Wesley “confirmed” Harris's statements to the council members at the retreat.   Contrary to plaintiffs' contention, there is no basis for waiting for discovery to learn the particular words that they failed to plead (see BCRE 230 Riverside LLC v. Fuchs, 59 A.D.3d 282, 283, 874 N.Y.S.2d 34 [2009] ).