Privitera v. Town of Phelps

Decision Date23 January 1981
Citation79 A.D.2d 1,435 N.Y.S.2d 402
Parties, 6 Media L. Rep. 2470 Samuel F. PRIVITERA, Jr. and Kathleen Privitera, Appellants, v. TOWN OF PHELPS and Roy DeBar a/k/a Roy DeBaere, Respondents.
CourtNew York Supreme Court — Appellate Division

Robert F. Wood, P. C., Rochester, for appellants; Kenneth Markham, Rochester, of counsel.

Nixon, Hargrave, Devans & Doyle, Rochester, for respondent Town of Phelps; Edward Burns, Rochester, of counsel.

Max Cohen, Canandaigua, for respondent DeBar.


SIMONS, Justice:

The central question on this appeal is whether it is slander per se to charge another with membership in the Mafia. We hold that it is not, but we find that plaintiffs have sufficiently pleaded special damages to sustain their slander cause of action.

Plaintiffs allege in their complaint that in 1977 they were owners of real property located in the defendant Town of Phelps and that defendant DeBar was the head of the Town Zoning Board and its Building Inspector. On June 2 plaintiffs appeared in DeBar's office with contract purchasers of their land named Durham, intending to assist them in obtaining a building permit as a necessary pre-condition of the sale. They claim that DeBar refused to issue the permit because, as he stated to the Durhams, plaintiff Samuel Privitera is a "member of the Mafia", "a criminal", "he has the police at his home all the time because he is a bad person". The complaint alleges that DeBar also stated to the Durhams that both plaintiffs are in the "mob". Based upon this incident, plaintiffs bring this suit against the Town and DeBar alleging causes of action for slander, negligence, violation of their civil rights under U.S.Code, Title 42, § 1983, et seq., tortious interference with their business, contract and property rights, and for emotional injury and loss of consortium. They seek compensatory and putative damages.

Special Term held the complaint failed to state any cause of action and ordered dismissal but conditioned its order by granting plaintiffs leave to replead within 20 days. Plaintiffs have failed to do so, or to stay entry of the final judgment which has now been entered on the order. Accordingly, this appeal is deemed to be from the final judgment (see National Bank of North Amer. v. Kory, 63 A.D.2d 579, 404 N.Y.S.2d 626).


A complaint alleging slander is legally sufficient it if pleads the utterance of words of certain classes held actionable per se. All other slander is actionable only upon allegation and proof of special damage (see, generally, Danko v. Woolworth Co., 29 A.D.2d 855, 288 N.Y.S.2d 509; Klein v. McGauley, 29 A.D.2d 418, 420-421, 288 N.Y.S.2d 751; Jordan v. Lewis, 20 A.D.2d 773, 247 N.Y.S.2d 650; Gurtler v. Union Parts Mfg. Co., Inc., 285 App.Div. 643, 140 N.Y.S.2d 254, affd. 1 N.Y.2d 5, 150 N.Y.S.2d 4, 132 N.E.2d 889). The distinction between spoken words which are actionable per se and those that are not is between certain classes of accusation judged so noxious that pecuniary damage is the natural and probable consequence of the words spoken and those which require proof of resulting injury. It is not that the words are less offensive, but rather that their injurious character is a matter of common knowledge in the first instance, permitting the court to take judicial notice of it, and not so in the latter.

It has been said that words constitute slander per se if they impute: (1) the commission of a crime, (2) a loathsome disease, (3) unchaste behavior in a woman, or (4) homosexual behavior or if they (5) affect plaintiff in his trade, occupation or profession (see, generally, Moore v. Francis, 121 N.Y. 199, 203, 23 N.E. 1127; 2 N.Y. PJI 45-47 (Supp.); 34 N.Y. Jur., Libel & Slander, § 14 et seq.; Prosser, Torts (4th ed.), § 112, pp. 754-760; 1 Harper & James, The Law of Torts, § 5.9, pp. 374-375; Restatement, Torts 2d, § 570). Only one class need concern us here. Either the offending words in this case charged plaintiffs with a crime or plaintiffs must plead and prove special damage.

Long ago, the Court of Appeals held that before words charging plaintiff with a crime became actionable per se, they must impute to plaintiff the commission of an indictable offense upon conviction of which punishment may be inflicted (Anonymous, 60 N.Y. 262, 264; Brooker v. Coffin, 5 Johns 188; but, see, 2 Seelman, Libel and Slander (rev. ed.), pp. 869-870). The rule has been criticized as needlessly restrictive and because it makes civil recovery dependent upon the changing terminology and procedures of the criminal law (see Prosser, Torts (4th ed.), p. 755; 1 Harper & James, The Law of Torts, § 5.10; 2 N.Y. PJI 45 (Supp.) p. 45). 1 Nevertheless, the Court of Appeals has not seriously reconsidered or relaxed it apparently for almost 100 years.

The complaint before us does not allege slander per se either directly or by properly pleaded innuendo because it does not allege that DeBar charged plaintiffs with an indictable offense. The Mafia, the dictionary tells us, is a "secret criminal society". But that is not enough. People are indicted for what they do, not for their associations or beliefs and membership in an organization, even membership in an organization having a criminal purpose, is not an indictable offense (see Gurtler v. Union Parts Mfg. Co., 285 App.Div. 643, 140 N.Y.S.2d 254, affd. 1 N.Y.2d 5, 150 N.Y.S.2d 4, 132 N.E.2d 889, supra (charge that plaintiff was a communist)). Nor is it slander per se to charge that one is a "bad man", or a "criminal", or a "crook" (Klein v. McGauley, 29 A.D.2d 418, 288 N.Y.S.2d 751, supra; Villemin v. Brown, 193 App.Div. 777, 184 N.Y.S. 570). Such words are too general and they do not permit defendant to justify the accusation. Moreover, to hold them actionable per se imposes an undesirable restraint on expression. To come within the class, the words must charge plaintiff with a specific identifiable offense (Klein v. McGauley, supra, 29 A.D.2d 421, 288 N.Y.S.2d 751).

Plaintiffs point out that it is not necessary that the accusation charge a crime in technical language; it is enough that it impute a criminal offense (see Lander v. Wald, 218 App.Div. 514, 219 N.Y.S. 57, affd. 245 N.Y. 590, 157 N.E. 870; Nowark v. Maguire, 22 A.D.2d 901, 255 N.Y.S.2d 318; Restatement, Torts 2d, § 571 (Comment c)). Thus, they claim, and the dissent agrees, that the complaint is sufficient because by dictionary definition the Mafia engages in "racketeering", "peddling narcotics" and "gambling". 2 Unquestionably, words implying criminal conduct, especially words loaded with the emotional freight of Mafia, are offensive and hold the plaintiff up to contempt. But they are not slanderous per se unless they specify a crime or a crime is readily apparent from properly pleaded innuendo (see Tracy v. Newsday, Inc., 5 N.Y.2d 134, 182 N.Y.S.2d 1, 155 N.E.2d 853; Selkowe v. Bleicher, 286 App.Div. 1095, 1096, 145 N.Y.S.2d 493; Prosser, Torts (4th ed.), pp. 748-749; and cf. Harris v. New York, Westchester & Boston R. Co., 244 App.Div. 252, 278 N.Y.S. 823). The law governing slander differs in this respect from the law governing libel. Spoken words are never actionable without proof of special damage unless they fall within one of the defined classes. The reason is in the nature of the wrong: the spoken accusation, as distinguished from the written one, is usually unpremeditated, made in the heat of anger, undiscriminating and of limited circulation (1 Seelman, Libel and Slander (rev. ed.), pp. 1-2). By contrast, written accusations usually follow some premeditation and are permanent. In the frequently quoted words of Chief Judge Cardozo: "Many things that are defamatory may be said with impunity through the medium of speech. Not so, however, when speech is caught upon the wing and transmuted into print. What gives the sting to the writing is its permanence of form. The spoken word dissolves, but the written one abides and 'perpetuates the scandal' " (Ostrowe v. Lee, 256 N.Y. 36, 39, 175 N.E. 505).


Though we do not find DeBar's words slanderous per se, we hold that the complaint may stand because special damages are pleaded, albeit imperfectly. Plaintiffs allege in the "wherefore" clause of the complaint that as a result of defendants' accusation they lost the sale of their property to Durhams to their damage of $1,000,000. We harbor some doubt that the pecuniary damage resulting from the loss of the sale of residential land in the rural township of Phelps, New York equals $1,000,000, but undoubtedly that sum is intended to represent both special damages and also general damages which plaintiffs may recover once their cause of action is sustained (see Restatement, Torts 2d, § 575 (Comment a)). The exact damage claimed from the loss of the sale may be determined by bill of particulars (Penn-Ohio Steel Corp. v. Allis-Chalmers Mfg. Co., 9 A.D.2d 620, 191 N.Y.S.2d 65) but by identifying a specific sale and naming the parties to it, plaintiffs have sufficiently itemized the special loss so that defendants may meet the claim and defend against it (see Reporters' Assn. v. Sun Print. & Pub. Assn., 186 N.Y. 437, 442-443, 79 N.E. 710; McCullough v. Certain Teed Prods. Corp., 70 A.D.2d 771, 417 N.Y.S.2d 353; Murphy v. Klein, 12 A.D.2d 683, 207 N.Y.S.2d 794; and cf. Lincoln First Bank of Rochester v. Siegel, 60 A.D.2d 270, 280, 400 N.Y.S.2d 627).


The Fifth Cause of Action seeks to recover damages for emotional and physical distress resulting from the slander and for loss of consortium. It is appropriately pleaded and may stand (see Garrison v. Sun Printing & Pub. Assn., 207 N.Y. 1, 100 N.E. 430; Restatement, Torts 2d, § 623).


In the remaining causes of action, plaintiffs allege various legal theories by which they seek to impose liability on defendants for damages resulting from defendants' failure to issue the building permit. It is sufficient answer to those...

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