| Shulman v Hunderfund |
| 2008 NY Slip Op 01133 [48 AD3d 449] |
| February 5, 2008 |
| Appellate Division, Second Department |
| Larry Shulman, Appellant, v James Hunderfund,Respondent, et al., Defendant. |
—[*1] Devitt Spellman Barrett, LLP, Smithtown, N.Y. (Diane K. Farrell of counsel), forrespondent. John H. Mulvehill, St. James, N.Y., for defendant Tom Tornee.
In an action to recover damages for defamation, the plaintiff appeals from (1) an order of theSupreme Court, Suffolk County (Jones, J.), dated October 6, 2005, which granted the motion ofthe defendant James Hunderfund pursuant to CPLR 4404 (a) to set aside so much of a juryverdict as was in favor of the plaintiff and against that defendant awarding punitive damages inthe sum of $100,000 and for judgment as a matter of law in favor of that defendant, and (2), aslimited by his brief, from so much of a judgment of the same court entered November 9, 2005,as, upon so much of the jury verdict as awarded compensatory damages, and upon the orderdated October 6, 2005, is in favor of the defendant James Hunderfund and against himdismissing the complaint insofar as asserted against that defendant.
Ordered that the appeal from the order is dismissed; and it is further,[*2]
Ordered that the judgment is reversed insofar as appealedfrom, on the law, the motion of the defendant James Hunderfund is denied, the order datedOctober 6, 2005 is modified accordingly, the action against the defendant Tom Tornee is severed,and the matter is remitted to the Supreme Court, Suffolk County, for the entry of judgment infavor of the plaintiff and against the defendant James Hunderfund consistent herewith; and it isfurther,
Ordered that one bill of costs is awarded to the plaintiff payable by the defendant JamesHunderfund.
The appeal from the intermediate order must be dismissed because the right of direct appealtherefrom terminated with the entry of judgment in the action (see Matter of Aho, 39NY2d 241, 248 [1976]). The issues raised on the appeal from the order are brought up for reviewand have been considered on the appeal from the judgment (see CPLR 5501 [a] [1]).
The defendants collaborated to produce a political flier which opposed the plaintiff's electionto the Board of Education of the Commack Union Free School District. The flier stated, amongother things, that the plaintiff "broke the law" by awarding a "lucrative" food service contract to abusiness associate. The jury found that the flier was defamatory and that the defendant JamesHunderfund was liable. The Supreme Court set aside so much of the verdict as was in favor ofthe plaintiff and against the defendant James Hunderfund and awarded judgment as a matter oflaw in favor of Hunderfund.
The Supreme Court erred in granting Hunderfund's motion to set aside so much of the verdictas was in favor of the plaintiff and against Hunderfund and for judgment as a matter of law infavor of Hunderfund based on his contention that the statement made in the flier wasnonactionable opinion. A valid line of reasoning existed for a rational person to conclude that theaverage reader of the flier would believe that the statement was fact and that the plaintiff brokethe law (cf. Gross v New York Times Co., 82 NY2d 146 [1993]; Rinaldi v Holt,Rinehart & Winston, 42 NY2d 369, 382 [1977], cert denied 434 US 969 [1977]).
Because a successful plaintiff in an action alleging libel per se is entitled to nominaldamages, the plaintiff should have been awarded compensatory damages of one dollar againstHunderfund (see Abell v Cornwall Indus. Corp., 241 NY 327 [1925]; Orlowski vKoroleski, 234 AD2d 436 [1996]).
The award of punitive damages was not excessive. There was legally sufficient evidence inthe record to support the jury's finding that Hunderfund was motivated by malice (cf.Prozeralik v Capital Cities Communications, 82 NY2d 466, 479 [1993]; Liberman vGelstein, 80 NY2d 429 [1992]).
The plaintiff's remaining contentions are without merit. Mastro, J.P., Covello, McCarthy andDickerson, JJ., concur.