CRANE HOGAN STRUCTURAL SYSTEMS INC AND DANIEL HOGAN PLAINTIFFS RESPONDENTS v. MARY ELLEN BELDING DEFENDANT APPELLANT

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Supreme Court, Appellate Division, Fourth Department.

CRANE–HOGAN STRUCTURAL SYSTEMS, INC., AND DANIEL C. HOGAN, PLAINTIFFS–RESPONDENTS, v. MARY ELLEN BELDING, DEFENDANT–APPELLANT.

CA 15–02157

Decided: September 30, 2016

PRESENT:  SMITH, J.P., CARNI, LINDLEY, DEJOSEPH, AND SCUDDER, JJ. ABRAMS, FENSTERMAN, FENSTERMAN, EISMAN, FORMATO, FERRARA & WOLF, LLP, ROCHESTER (SHARON P. STILLER OF COUNSEL), FOR DEFENDANT–APPELLANT. ADAMS BELL ADAMS, P.C., ROCHESTER (RICHARD T. BELL, JR., OF COUNSEL), FOR PLAINTIFFS–RESPONDENTS.

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously modified on the law by granting the motion in part and dismissing the complaint insofar as it alleged defamation per se under the serious crime category, and as modified the order is affirmed without costs.

Memorandum:  Plaintiffs commenced this defamation action seeking compensatory and punitive damages based on statements contained in a letter that defendant sent to a federal judge regarding the sentencing of plaintiff Crane–Hogan Structural Systems, Inc. upon its plea of guilty of a violation of the federal Clean Water Act (33 USC § 1251 et seq.).  We agree with defendant that Supreme Court erred in denying that part of her pre-answer motion to dismiss the complaint pursuant to CPLR 3211(a)(7) insofar as the complaint alleged that defendant committed defamation per se by “charging plaintiff[s] with a serious crime” (Liberman v. Gelstein, 80 N.Y.2d 429, 435).  We conclude that certain statements in the letter alleging criminal conduct on the part of plaintiffs do not constitute defamation per se because “reference to extrinsic facts is necessary to give them a defamatory import” (Aronson v. Wiersma, 65 N.Y.2d 592, 594–595), and that other statements, e.g., accusing plaintiffs of terrorism, do not constitute defamation per se because they are “likely to be perceived as ‘rhetorical hyperbole [or] a vigorous epithet’ “ (LeBlanc v. Skinner, 103 AD3d 202, 213, quoting Greenbelt Coop. Publ. Assn., Inc. v Bresler, 398 U.S. 6, 14;  see Lukashok v Concerned Residents of N. Salem, 160 A.D.2d 685, 686).  We otherwise affirm the order for reasons stated in the decision at Supreme Court.

Frances E. Cafarell

Clerk of the Court