Grossman v. Fieland

• Decision Date: 14 January 1985
• Citation: 483 N.Y.S.2d 735,107 A.D.2d 659
• Parties: Floyd G. GROSSMAN, Respondent, v. Louis C. FIELAND, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 735

483 N.Y.S.2d 735

107 A.D.2d 659

Floyd G. GROSSMAN, Respondent, v. Louis C. FIELAND, Appellant.

Supreme Court, Appellate Division Second Department.

Jan. 14, 1985.

Louis C. Fieland, New York City (Sidney Squire, New York City, of counsel), appellant pro se.

Dollinger, Gonski & Grossman, Carle Place (Matthew Dollinger, Carle Place, of counsel), for respondent.

Before THOMPSON, J.P., and O'CONNOR, NIEHOFF and RUBIN, JJ.

MEMORANDUM BY THE COURT.

In a libel action, defendant appeals from a judgment of the Supreme Court, Nassau County, entered May 25, 1983, which, after a jury trial, was in favor of the plaintiff.

Judgment affirmed, with costs.

Plaintiff's client obtained a judgment against defendant and others. Defendant, after obtaining a bond, appealed the judgment. On appeal, the Appellate Division affirmed the judgment (Landmark Assoc. v. Fieland, 73 A.D.2d 1063, 423 N.Y.S.2d 973). Defendant forwarded a check for the original amount of the judgment, and in a cover letter directed plaintiff to hold the check in escrow pending defendant's receipt of a satisfaction of judgment. The letter stated that plaintiff was not authorized to deposit, negotiate, or assign the check.

Plaintiff deposited the check in his firm's escrow account, and in a reply letter advised defendant that an additional sum was still owed to cover interest due on the judgment and the costs and disbursements awarded on the appeal. The bonding company ultimately paid the additional sums due to extinguish the debt, and satisfactions of judgment were promptly issued. When defendant learned that plaintiff had deposited the check in his firm's escrow account, he sent letters to the District Attorneys of Nassau and Queens Counties in which he stated, in part, "In the opinion of the undersigned, Mr. Grossman is clearly guilty of misappropriation of funds". In this ensuing libel action, plaintiff obtained a jury verdict in his favor in the principal sum of $10,000. We now affirm.

Plaintiff was fully within his rights in refusing to issue a satisfaction of judgment until the additional sums demanded were paid (see CPLR 5003, 5020). Defendant's letter requesting plaintiff to hold the check in escrow was in no way binding upon plaintiff, because the requisite elements of an escrow agreement were lacking (Farago v. Burke, 262 N.Y. 229, 186 N.E. 683; 20 N.Y.Jur., Escrow §§ 3, 4, 6). Plaintiff never agreed to hold any sum put in his possession in escrow, and he had the right to seek to enforce the judgment against the property put in his possession by defendant (CPLR 5201, subd. see, also, Koroleski v. Badler, 32 A.D.2d 810, 303 N.Y.S.2d 221).

Although defendant's statements were qualifiedly privileged, because they were made to District Attorneys (Toker v. Pollak, 44 N.Y.2d 211, 405 N.Y.S.2d 1, 376 N.E.2d 163; Pecue v. West, 233 N.Y. 316, 135 N.E. 515), a review of the record indicates that plaintiff overcame this privilege by proving that the statements were false, that defendant had knowledge of their falsity, and that defendant was motivated by ill will towards plaintiff (Rezey v. Golub Corp., 52 N.Y.2d 713, 436 N.Y.S.2d 264, 417 N.E.2d 558; Baldwin v. Shell Oil Co., 71 A.D.2d 907, 419 N.Y.S.2d 752; Silbowitz v. Lepper, 32 A.D.2d 520, 299 N.Y.S.2d 564). Not only is defendant's claim of an attempt to settle the initial action when he forwarded an inadequate amount incredible, but even if credible, it in no way justified the ensuing letters to the authorities charged with prosecuting criminal larceny complaints in Nassau and Queens Counties.

Defendant claims that his statements were nonactionable since they were statements of his opinion. Defendant, however, was clearly accusing plaintiff of illegal actions. "Accusations of criminal activity, even in the form of opinion, are not...