Amato v. N.Y.C. Departmen't of Parks & Recreation

• Decision Date: 03 October 2013
• Citation: 2013 N.Y. Slip Op. 06425,110 A.D.3d 439,973 N.Y.S.2d 29
• Parties: Peter AMATO, et al., Plaintiffs–Appellants, v. NEW YORK CITY DEPARTMENT OF PARKS AND RECREATION, et al., Defendants–Respondents, John Does, etc., Defendants.
• Court: New York Supreme Court — Appellate Division

110 A.D.3d 439

973 N.Y.S.2d 29

2013 N.Y. Slip Op. 06425

Peter AMATO, et al., Plaintiffs–Appellants,

v. NEW YORK CITY DEPARTMENT OF PARKS AND RECREATION, et al., Defendants–Respondents,John Does, etc., Defendants.

Supreme Court, Appellate Division, First Department, New York.

Oct. 3, 2013.

Law Office of Gregory T. Chillino, New York (Christopher M, Slowik of counsel), for appellants.

Michael A. Cardozo, Corporation Counsel, New York (Victoria Scalzo of counsel), for respondents.

MAZZARELLI, J.P., RENWICK, DeGRASSE, FREEDMAN, FEINMAN, JJ.

Order, Supreme Court, New York County (Geoffrey D. Wright, J.), entered July 9, 2012, which granted defendants' motion to dismiss the complaint, unanimously affirmed, without costs.

Plaintiffs claim that defendants defamed them in an email informing nonparty Nasdi, LLC, the general contractor on a City construction project, that plaintiff City Safety Compliance Corp. would not be approved as a subcontractor on the project. The email stated that City Safety was “affiliated with Testwell Labs, a concrete testing company barred from public work due to a fraud conviction.” Plaintiffs argue that this statement is defamatory per se because it falsely implies a formal relationship between them and a convicted felon, which discredits them in their profession. In support, they rely on the definition of the word “Affiliate” in the rules of the City Procurement Policy Board, which involves the ownership of more than 50% of the voting stock ( see 9 RCNY 2–08[e][1] ), arguing that the audience for defendants' statement, i.e., “construction firm procurement officials,” would understand the word “affiliated” to mean that City Safety would not likely be approved for City contracts—although the statement that it is affiliated with Testwell is untrue. However, since the word “affiliated” is not defined in the Procurement Policy Board Rules, the motion court correctly found that, based on the ordinary dictionary meaning of the word, an affiliation between City Safety and Testwell could be inferred from the affidavit by plaintiff Peter Amato, an owner of City Safety, stating that he was a 10% owner of another entity, Site Safety, LLC, of which the owner of the remaining 90% was also Testwell's principal, who was convicted of fraud. The truth of the statement is a complete defense to the defamation claim ( Dillon v. City of New York, 261 A.D.2d 34, 39, 704 N.Y.S.2d 1 [1st Dept.1999] ).

In any event, the statement was communicated for a work-related purpose and is therefore protected by a qualified privilege ( see Foster v....