Liberman v. Gelstein

Decision Date24 November 1992
Parties, 605 N.E.2d 344, 21 Media L. Rep. 1079 Barnet L. LIBERMAN, Appellant, v. Leonard GELSTEIN, Respondent.
CourtNew York Court of Appeals Court of Appeals

Dechert Price & Rhoads, New York City (Robert A. Cohen and Owen D. Kalt, of counsel), for appellant.

Gordon & Silber, P.C., New York City (Peter Pearson Traub, Jr., of counsel), for respondent.

OPINION OF THE COURT

KAYE, Judge.

In this action for slander, we consider whether the plaintiff has stated a viable claim without any showing of special damages, whether the alleged slander is protected by qualified privilege, and whether there is a triable issue of fact as to malice. We conclude that plaintiff's claims were correctly dismissed on summary judgment.

I.

Before us is one of eight actions, consolidated for disposition by the motion court, centering on a luxury apartment building in Manhattan. Plaintiff, Barnet L. Liberman, is the building's landlord. Defendant, Leonard Gelstein (a tenant), is on the board of governors of the tenants' association. Disputes between the landlord and tenants of the building erupted nearly a decade ago, when the tenants organized opposition to the landlord's application for a rent increase, and they have continued and proliferated through the conversion of the building to cooperative ownership (see, e.g., Matter of 421 Hudson St. Tenants Assn. v. Abrams, 140 Misc.2d 166, 530 N.Y.S.2d 441).

This defamation action against Gelstein is one of three suits brought by Liberman against individual members of the tenant association's board of governors. Gelstein has countersued Liberman and his wife for misconduct arising from a criminal complaint filed by Mrs. Liberman, which apparently resulted in Gelstein's overnight incarceration.

The present complaint alleged five causes of action sounding in slander. Only two--the second and fifth--are pressed by plaintiff on this appeal. The other causes of action involving, for example, accusations by Gelstein that Liberman charged an illegal $10 monthly dog rent and stole electricity from the building, have over the years been dropped.

In his second cause of action, plaintiff alleged that in July 1986, the following conversation took place between defendant and another tenant of the building, Robert Kohler.

"Gelstein: Can you find out from your friend at the precinct which cop is on the take from Liberman?

"Kohler: What are you talking about?

"Gelstein: There is a cop on the take from Liberman. That's why none of the building's cars ever get tickets--they can park anywhere because Liberman's paid them off. He gives them a hundred or two hundred a week."

The fifth cause of action alleged that in May 1986 defendant made the following statement in the presence of employees of the building:

"Liberman threw a punch at me. He screamed at my wife and daughter. He called my daughter a slut and threatened to kill me and my family."

Plaintiff claimed $5 million damages on each cause of action for injury to his reputation and emotional distress. After discovery, defendant sought summary judgment dismissing the complaint. On the second cause of action, defendant invoked the "common interest" qualified privilege, characterizing his conversation with Kohler a colleague on the board of governors, as an inquiry designed to uncover wrongdoing by the landlord affecting tenants. At his deposition, defendant testified that several vehicles operated by the building's management regularly parked in front of the building beyond the legal limit but never received parking summonses. He further testified that he was told by two building employees, whom he identified, that Liberman was bribing the police to avoid parking tickets. Defendant admitted that he did not know whether the allegations were true, but testified that they "sounded truthful" to him. Accordingly, defendant testified that he approached Kohler--whose friend was captain of the local police precinct--in an effort to discover whether the allegations were true.

Plaintiff responded that there was an issue of fact on malice, which if proved at trial, would defeat the qualified privilege. Plaintiff argued that malice of the common-law variety (spite or ill will) could be inferred from defendant's over-all conduct toward plaintiff, including one occasion in July 1987 when defendant threw a lit firecracker into his car and another in May 1986 when he pounded on the car's windows and attempted to rip out the windshield wiper. Moreover, plaintiff argued, malice of the constitutional variety (knowledge of falsity or reckless disregard for truth or falsity) could be found in defendant's concession that he had no actual knowledge of bribery and the lack of trustworthiness of his sources, "disgruntled" building employees.

On the fifth cause of action, defendant argued that the statements were either true, not defamatory or never made.

In dismissing the second cause of action, Supreme Court agreed with defendant that the statements were qualifiedly privileged and plaintiff failed to sustain his burden of raising a triable issue on malice. The court also held that the statements comprising the fifth cause of action could only have been understood by the recipients, who were familiar with the parties' history of disagreements, as rhetorical hyperbole.

The Appellate Division affirmed, 178 A.D.2d 215, 577 N.Y.S.2d 271, agreeing with Supreme Court's reasoning. One Justice, who would have reinstated the second cause of action, dissented in part. He was not "entirely persuaded" that the statements were qualifiedly privileged, and thought that in any event defendant's deposition testimony that he did not know whether the bribery charge was true was itself sufficient to raise a triable issue whether the statements were made with reckless disregard as to their truth or falsity.

The Appellate Division granted leave, and we affirm.

II.

Slander as a rule is not actionable unless the plaintiff suffers special damage (see, Aronson v. Wiersma, 65 N.Y.2d 592, 594, 493 N.Y.S.2d 1006, 483 N.E.2d 1138; Matherson v. Marchello, 100 A.D.2d 233, 236, 473 N.Y.S.2d 998 [Titone, J.P.]; Restatement [Second] of Torts [Restatement] § 575). Special damages contemplate "the loss of something having economic or pecuniary value" (Restatement § 575, comment b; see, Prosser and Keeton, Torts [Prosser] § 112, at 794 [5th ed.]. Plaintiff has not alleged special damages, and thus his slander claims are not sustainable unless they fall within one of the exceptions to the rule.

The four established exceptions (collectively "slander per se") consist of statements (i) charging plaintiff with a serious crime; (ii) that tend to injure another in his or her trade, business or profession; (iii) that plaintiff has a loathsome disease; or (iv) imputing unchastity to a woman (see, Moore v. Francis, 121 N.Y. 199, 203, 23 N.E. 1127; Privitera v. Town of Phelps, 79 A.D.2d 1, 3, 435 N.Y.S.2d 402 [Simons, J.]; Civil Rights Law § 77; 2 Seelman, Libel and Slander in the State of New York, at 869-907 [1964]; Restatement §§ 570-573; Smolla, Defamation § 7.05). When statements fall within one of these categories the law presumes that damages will result, and they need not be alleged or proven. 1

Plaintiff claims that both sets of statements were slanderous per se inasmuch as they charged him with criminal conduct. Not every imputation of unlawful behavior, however, is slanderous per se. "With the extension of criminal punishment to many minor offenses, it was obviously necessary to make some distinction as to the character of the crime, since a charge of a traffic violation, for example, would not exclude a person from society, and today would do little, if any, harm to his [or her] reputation at all" (Prosser § 112, at 789). Thus, the law distinguishes between serious and relatively minor offenses, and only statements regarding the former are actionable without proof of damage (see, Restatement § 571, comment g [list of crimes actionable as per se slander includes murder, burglary, larceny, arson, rape, kidnapping].

We agree with plaintiff that defendant's alleged statement that "[t]here is a cop on the take from Liberman" charges a serious crime--bribery (see, Penal Law § 200.00; People v. Tran, 80 N.Y.2d 170, 589 N.Y.S.2d 845, 603 N.E.2d 950). Accordingly, the statements constituting the second cause of action are actionable without the need to establish special harm, and absent any privilege would be sufficient to go to a jury.

We disagree, however, with plaintiff's contention that the statement "Liberman * * * threatened to kill me and my family" was slanderous per se. 2 Plaintiff claims these words falsely attributed to him the commission of the crime of harassment (see, Penal Law § 240.25; People v. Dorns, 88 Misc.2d 1064, 390 N.Y.S.2d 546 [threats to kill]. Harassment is a relatively minor offense in the New York Penal Law--not even a misdemeanor--and thus the harm to the reputation of a person falsely accused of committing harassment would be correspondingly insubstantial. Hence, even if we agreed with plaintiff that the statement would not have been construed by the listeners as rhetorical hyperbole, the cause of action must nevertheless be dismissed because it is not slanderous per se to claim that someone committed harassment.

Plaintiff alternatively argues that the statements in the fifth cause of action tended to harm him in his business as a property owner, and thus are actionable under the "trade, business or profession" exception. That exception, however, is "limited to defamation of a kind incompatible with the proper conduct of the business, trade, profession or office itself. The statement must be made with reference to a matter of significance and importance for that purpose, rather than a more general reflection upon the plaintiff's character or qualities" (Prosser § 112, at 791). Thus, "charges against a clergyman of drunkenness...

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