Amelkin v. Commercial Trading Co.

• Citation: 259 N.Y.S.2d 396,23 A.D.2d 830
• Parties: Norman AMELKIN, Plaintiff-Respondent, v. COMMERCIAL TRADING COMPANY, Inc. and General J. Grossman, Defendants-Appellants.
• Decision Date: 13 May 1965
• Court: New York Supreme Court Appellate Division

Page 396

259 N.Y.S.2d 396

23 A.D.2d 830

Norman AMELKIN, Plaintiff-Respondent, v. COMMERCIAL TRADING COMPANY, Inc. and General J. Grossman Defendants-Appellants.

Supreme Court, Appellate Division, First Department.

May 13, 1965.

R. L. Tofel, New York City, of counsel (Burton M. Fine, New York City, with him on the brief, Fine, Posner & Tofel, New York City), for plaintiff-respondent.

J. W. Rodgers, New York City, of counsel (Anson M. Keller, New York City, with him on the brief, Townley, Updike, Carter & Rodgers, New York City), for defendants-appellants.

Before BREITEL, J. P., and RABIN, VALENTE, EAGER and STEUER, JJ.

PER CURIAM.

Order, entered on January 25, 1965, which granted plaintiff's motion for reargument, and upon reargument recalling a prior decision of Special Term and denying defendant's motion made pursuant to CPLR 3211(a)(7) to dismiss the complaint, unanimously reversed on the law, with $30 costs and disbursements to appellants, and the motion to dismiss the complaint granted, with $10 costs. The action is in libel. The alleged libel was a letter written by defendant to plaintiff's employer, the Aetna Casualty and Surety Company. The letter is as follows:

'Dear Sir:

'We address this letter to you because we feel that your company has not acted properly.

'We are a commercial finance company in New York and have been financing the account of Anoroc Products, Inc. on, amongst other things, a chattel mortgage on its machinery and a factor's lien on its inventory.

'In October, 1962, Norman Amelikin, an agent working out of your Brooklyn office, wrote the above policy insuring the machine and inventory. Although he knew of our interest, he neglected or refused to properly represent our interest in this policy. At the end of May, 1963, there was a sprinkler damage loss. The broker finally obtained a loss payable clause in our favor, effective as of June 26, 1963. On August 5, 1963, your company, out of your Brooklyn office drew a draft for approximately $17,250.00 in favor of Anoroc Products, Inc. On August 6, when we discovered the draft was drawn, we sent a telegram. After this, we spoke with Mr. Rodriguez and Mr. Deline of your Brooklyn office and urged them to include our name or, alternatively, to stop payment on the check. They refused.

'We believe your Proof of Loss form contains provisions under oath, for any other interests in the destroyed property. Your Brooklyn office, as well as the agent who handled the matter, were made aware of our interest at a time when they could have properly...