Casamassima v. Oechsle
| Decision Date | 24 December 1986 |
| Citation | 125 A.D.2d 855,509 N.Y.S.2d 960 |
| Parties | T.S. CASAMASSIMA, Appellant, v. G. Russell OECHSLE, Respondent. |
| Court | New York Supreme Court — Appellate Division |
Richard I. Mulvey, Ithaca, for appellant.
Robert Abrams, Atty. Gen. (Charles E. Roberts, of counsel), Syracuse, for respondent.
Before KANE, J.P., and MAIN, CASEY, YESAWICH and LEVINE, JJ.
Appeal from a judgment of the Supreme Court at Special Term (Smyk, J.), entered March 24, 1986 in Tompkins County, which granted defendant's motion to dismiss the complaint for failure to state a cause of action and denied plaintiff's cross motion for a change of venue.
On or about March 1, 1985 defendant, as a then executive assistant to the Administrative Judge of the Sixth Judicial District, allegedly gave plaintiff, following the termination of his provisional appointment of three years as a court reporter assigned to a Tompkins County Judge, permission to take a typewriter home for the purpose of completing transcripts. On June 11, 1985 defendant stated in the presence of several court personnel that plaintiff "had no permission to take any typewriter from this court house". When advised that the filing of a felony complaint against him was contemplated by defendant, plaintiff returned the typewriter and demanded an apology from defendant. In response plaintiff received a letter from defendant repeating the allegation previously made orally in which publication of the letter to six other persons was evidenced.
Plaintiff commenced this action for defamation in Tompkins County, based on plaintiff's residence. Defendant moved to dismiss the first cause of action alleged in the complaint for legal insufficiency and the second cause of action for plaintiff's failure to particularize the alleged libelous material. Plaintiff filed a cross motion seeking a change of venue of the action to Cayuga County in the Seventh Judicial District. Special Term granted defendant's motion and denied plaintiff's cross motion. We agree with the determination of Special Term.
Plaintiff's first cause of action attempts to plead slander based on defendant's statement that plaintiff "had no permission to take any typewriter from this court house". Inasmuch as the allegations do not allege slander per se (see, Matherson v. Marchello, 100 A.D.2d 233, 236, 473 N.Y.S.2d 998), since they fail to attack plaintiff's professional ability and fall far short of accusing plaintiff of a crime (see, Caffee v. Arnold, 104 A.D.2d 352, 478 N.Y.S.2d 683), the complaint is insufficient for its failure to allege special damages (see, Aronson v. Wiersma, 65 N.Y.2d 592, 594, 493 N.Y.S.2d 1006, 483 N.E.2d 1138; Privitera v. Town of Phelps, 79 A.D.2d...
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