| Perez v Lopez |
| 2012 NY Slip Op 05404 [97 AD3d 558] |
| July 5, 2012 |
| Appellate Division, Second Department |
| Jose Perez, Appellant, v Jenny Lopez et al.,Respondents. |
—[*1] Littler Mendelson, P.C., New York, N.Y. (David S. Warner and Robert A. Cirino of counsel), for respondents.
In an action, inter alia, to recover damages for defamation and civil conspiracy to commitdefamation, the plaintiff appeals, as limited by his brief, from so much of an order of theSupreme Court, Suffolk County (Jones, Jr., J.), dated September 6, 2011, as, upon, in effect,granting that branch of his motion which was, in effect, for leave to reargue his opposition to thedefendants' motion to dismiss the complaint pursuant to CPLR 3211 (a), which was granted in anorder of the same court dated April 6, 2011, adhered to so much of the original determination asgranted those branches of the defendants' motion which were pursuant to CPLR 3211 (a) (7) todismiss the first cause of action alleging defamation insofar as asserted against the defendantsJenny Lopez and Jaclyn Irma Yeh and pursuant to CPLR 3211 (a) (7) to dismiss the fourth causeof action alleging civil conspiracy to commit defamation insofar as asserted against all of thedefendants.
Ordered that the order dated September 6, 2011, is modified, on the law, by deleting theprovisions thereof which upon, in effect, reargument, adhered to so much of the determination inthe order dated April 6, 2011, as granted those branches of the defendants' motion which werepursuant to CPLR 3211 (a) (7) to dismiss the first cause of action alleging defamation insofar asasserted against the defendant Jenny Lopez and pursuant to CPLR 3211 (a) (7) to dismiss thefourth cause of action alleging civil conspiracy to commit defamation insofar as asserted againstthe defendants Jenny Lopez, Jaclyn Irma Yeh, and Victoria Rahn, and substituting thereforprovisions, upon reargument, vacating so much of the order dated April 6, 2011, as granted thosebranches of the defendants' motion, and thereupon denying those branches of the motion; as somodified, the order dated September 6, 2011, is affirmed insofar as appealed from, with one billof costs to the plaintiff.
On a motion to dismiss the complaint pursuant to CPLR 3211 (a) (7) for failure to state acause of action, the court must afford the complaint a liberal construction (see CPLR3026), "accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of everypossible favorable inference, and determine only whether the facts as alleged fit within anycognizable legal theory" (Leon v Martinez, 84 NY2d 83, 87-88 [1994]; see Nonnon v City of New York, 9NY3d 825, 827 [2007]; Knutt vMetro Intl., S.A., 91 AD3d 915, 915 [2012]).
Contrary to the Supreme Court's determination, the defamatory statement alleged in thecomplaint to have been made by the defendant Jenny Lopez was pleaded with sufficient [*2]particularity (see CPLR 3016 [a]; Amaranth LLC v J.P. Morgan Chase &Co., 71 AD3d 40, 48 [2009]) and was reasonably susceptible of a defamatory meaning(cf. Golub v Enquirer/Star Group, 89 NY2d 1074, 1076 [1997]). Moreover, the plaintiffsufficiently pleaded defamation per se, as the alleged defamatory statement tended to disparagehim "in the way of [his] office, profession, trade or business" (Herlihy v MetropolitanMuseum of Art, 214 AD2d 250, 261 [1995]). Contrary to the defendants' contention, the"single instance" rule is inapplicable under the circumstances presented because the allegeddefamatory statement accused the plaintiff of "much more than a mere mistake, dereliction, orlapse in judgment on a single occasion" (Porcari v Gannett Satellite Info. Network, Inc., 50 AD3d 993, 994[2008]). Accordingly, upon reargument, the Supreme Court should have denied that branch ofthe defendants' motion which was pursuant to CPLR 3211 (a) (7) to dismiss the first cause ofaction alleging defamation insofar as asserted against Lopez.
Upon reargument, the Supreme Court also should have denied those branches of thedefendants' motion which were pursuant to CPLR 3211 (a) (7) to dismiss the fourth cause ofaction alleging civil conspiracy to commit defamation insofar as asserted against Lopez and thedefendants Jaclyn Irma Yeh and Victoria Rahn. In order to properly plead a cause of action torecover damages for civil conspiracy, the plaintiff must allege a cognizable tort, coupled with anagreement between the conspirators regarding the tort, and an overt action in furtherance of theagreement (see 1766-68 Assoc., LP vCity of New York, 91 AD3d 519, 520 [2012]). The complaint sufficiently alleges theseelements insofar as asserted against Lopez, Yeh, and Rahn. However, since the complaint doesnot allege any overt action on the part of the defendant Vicinniya Williams in furtherance of theagreement, the Supreme Court properly, upon reargument, adhered to its prior determinationgranting that branch of the defendants' motion which was pursuant to CPLR 3211 (a) (7) todismiss the fourth cause of action insofar as asserted against Williams.
The parties' remaining contentions are without merit. Rivera, J.P., Eng, Lott and Cohen, JJ.,concur.