Moore v. Washington

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: Before CAPOZZOLI; PER CURIAM
• Citation: Moore v. Washington, 311 N.Y.S.2d 310, 34 A.D.2d 903 (N.Y. App. Div. 1970)
• Decision Date: 04 June 1970
• Parties: Ercelle Harmon MOORE, Plaintiff, v. Rosco C. WASHINGTON and Thelma M. Corbin, Defendants-Respondents. Alvin V. Moore, Administrator of the Estate of Ercelle Harmon Moore, Deceased, Proposed Substitute Party Plaintiff-Appellant.

Page 310

311 N.Y.S.2d 310

34 A.D.2d 903

Ercelle Harmon MOORE, Plaintiff, v. Rosco C. WASHINGTON and Thelma M. Corbin, Defendants-Respondents Alvin V. Moore, Administrator of the Estate of Ercelle Harmon Moore, Deceased, Proposed Substitute Party Plaintiff-Appellant.

Supreme Court, Appellate Division, First Department.

June 4, 1970.

F. W. Alexander, II, New York City, for defendants-respondents.

L. E. Panzirer, New York City, for plaintiff-appellant.

Before CAPOZZOLI, J.P., and MARKEWICH, STEUER and TILZER, JJ.

PER CURIAM.

Order entered November 24, 1969 denying the motion to substitute the Administrator of the Estate of Ercelle Harmon Moore as party plaintiff in place of Ercelle Harmon Moore, deceased, and granting the cross-motion of the defendants to dismiss the complaint, unanimously reversed on the law, the motion granted and the cross-motion dismissed, without costs and without disbursements. As the Special Term originally noted, an action in libel and slander does not abate upon the death of the plaintiff, except insofar as punitive damages are sought. (EPTL 11--3.2.) On reargument, the court found that the compensatory damages allegedly sustained by the plaintiff, the loss of salary and emoluments, did not flow from the tortious acts of the defendants. Upholding a claim of qualified privilege on the defendants' part, the court concluded that the loss of the deceased's position as Imperial Commandress was dictated by the by-laws of the organization which directed her suspension pending the hearing and determination of the charges against her. Accordingly, the cross-motion to dismiss the complaint was granted. It had previously been established as the law of the case, however, that the papers raised triable issues on the question of erxpress malice or actual ill-will affecting the defense of privilege. (See Shapiro v. Health Ins. Plan, 7 N.Y.2d 56, 61, 194 N.Y.S.2d 509, 513, 163 N.E.2d 333, 336.) In any event,...