| Carrara v Kelly |
| 2010 NY Slip Op 04724 [74 AD3d 719] |
| June 1, 2010 |
| Appellate Division, Second Department |
| Gina Carrara et al., Appellants, v Mary Ann Kelly et al.,Respondents. (Action No. 1.) John M. Stanton et al., Respondents, v Gina Carrara et al.,Appellants. (Action No. 2.) |
—[*1] Barr V. Pittman, Bay Shore, N.Y., for respondents.
In related actions, inter alia, to recover damages for private nuisance, which were joined fortrial, Gina Carrara and Kevin Carrara appeal (1), as limited by their brief, from so much of ajudgment of the Supreme Court, Suffolk County (Sweeney, J.), dated September 15, 2008, as,upon a jury verdict finding that they committed injurious falsehood and trespass, is in favor ofJohn M. Stanton and Mary Ann Kelly and against them in action No. 2 in the principal sum of$31,200 for injurious falsehood and awarding John M. Stanton and Mary Ann Kelly injunctiverelief on their counterclaim in action No. 1 sounding in trespass, and (2) from an order of thesame court dated December 8, 2008, which denied Kevin Carrara's motion pursuant to CPLR4404 to set aside the jury verdict and for judgment as a matter of law or, alternatively, to setaside the jury verdict as against the weight of the evidence and for a new trial.
Ordered that the appeal by Gina Carrara from the order dated December 8, 2008, isdismissed, without costs or disbursements, as she is not aggrieved by that order (seeCPLR 5511); and it is further,
Ordered that the judgment is modified, on the law and on the facts, by deleting the provisionthereof in favor of John M. Stanton and Mary Ann Kelly and against Gina Carrara and KevinCarrara in the principal sum of $31,200 in action No. 2, and substituting therefor a provisionsevering the cause of action asserted by John M. Stanton and Mary Ann Kelly to recoverdamages for injurious falsehood in action No. 2; as so modified, the judgment is affirmed insofaras appealed from, without costs or disbursements, and the matter is remitted to the SupremeCourt, Suffolk County, for a new trial on that cause of action; and it is further,
Ordered that the order is affirmed, without costs or disbursements.[*2]
"When weight of evidence is the issue, a verdict for theplaintiff may not be disregarded unless the evidence so preponderates in favor of the defendantthat it could not have been reached on any fair interpretation of the evidence" (Moffatt vMoffatt, 86 AD2d 864 [1982], affd 62 NY2d 875 [1984] [internal quotation marksomitted]; see Grassi v Ulrich, 87 NY2d 954, 956 [1996]; Lolik v Big VSupermarkets, 86 NY2d 744, 746 [1995]; Nicastro v Park, 113 AD2d 129, 133-134[1985]).
"A person who utters a false and misleading statement harmful to the interests of anothermay be held liable for damages resulting therefrom if (1) it is uttered or published maliciouslyand with the intent to harm another or done recklessly and without regard to its consequences,and (2) a reasonably prudent person would or should anticipate that damage to another willnaturally flow therefrom" (L.W.C. Agency v St. Paul Fire & Mar. Ins. Co., 125 AD2d371, 373 [1986]; see Gilliam v RichardM. Greenspan, P.C., 17 AD3d 634 [2005]; Penn-Ohio Steel Corp. v Allis-ChalmersMfg. Co., 7 AD2d 441, 444 [1959]; Restatement [Second] of Torts § 623A).
Here, the gravamen of the challenged statements made by the appellant Kevin Carrara to theUnited States Corps of Engineers, the New York State Department of EnvironmentalConservation, and the Town of Islip was that John M. Stanton and Mary Ann Kelly (hereinafterthe respondents) never obtained the proper permits for the installation and/or renovation of thestructures on their dock. In turn, the respondents did not carry their burden of demonstrating thefalsity of these statements (see Kreindler, New York Law of Torts § 3:4, 3:6 [14West's NY Prac Series 1997]; Restatement [Second] of Torts § 623A; Prosser and Keeton,Torts § 128, at 967 [5th ed]). Additionally, in response to the challenged statement that therespondents are "only looking to make money operating a comercial [sic] boat marinafrom a residential house," John M. Stanton a homeowner, conceded that since at least 1999 hehas charged a fee to, and received cash from, nonresident boat owners who wish to dock theirboats at his dock. Consequently, the jury verdict finding that the appellants committed aninjurious falsehood upon the respondents was not based on a fair interpretation of the evidence(see Moffatt v Moffatt, 86 AD2d at 864).
In light of the new trial on the cause of action to recover damages for injurious falsehood, theparticularity requirement of that cause of action should be included in the charge to the jury (see BCRE 230 Riverside LLC vFuchs, 59 AD3d 282, 283 [2009]; Kevin Spence & Sons v Boar's Head Provisions Co., 5 AD3d 352[2004]).
The appellants' remaining contentions either are unpreserved for appellate review, arewithout merit, or need not be reached in light of our determination. Skelos, J.P., Covello, Balkinand Austin, JJ., concur.