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COMMUNICATION BETWEEN SPOUSES DOES NOT CONSTITUTE PUBLICATION IN A DEFAMATIOIN ACTION; MOTION TO SET ASIDE PLAINTIFF’S VERDICT SHOULD HAVE BEEN GRANTED.

The Second Department determined defendants' oral motion to set aside the verdict in a defamation case should have been granted. Plaintiff alleged statements made by defendants (husband and wife) caused specified pecuniary loss. Because the defendants are spouses, communication between them did not constitute publication. The plaintiff was unable to demonstrate any statements made to third parties caused special harm:

“A motion for judgment as a matter of law pursuant to CPLR 4401 or 4404 may be granted only when the trial court determines that, upon the evidence presented, there is no valid line of reasoning and permissible inferences which could possibly lead rational persons to the conclusion reached by the jury upon the evidence presented at trial, and no rational process by which the jury could find in favor of the nonmoving party” … . “In considering such a motion, the trial court must afford the party opposing the motion every inference which may properly be drawn from the facts presented, and the facts must be considered in a light most favorable to the nonmovant” … .

Applying this standard here, we conclude that there was no valid line of reasoning and permissible inferences which could have led the jury to find that the plaintiff established his cause of action alleging defamation. “The elements of a cause of action [to recover damages] for defamation are a false statement, published without privilege or authorization to a third party, constituting fault as judged by, at a minimum, a negligence standard, and it must either cause special harm or constitute defamation per se” … . Here, because it is undisputed that the defendants are spouses, the communications between the defendants do not constitute publication … . … [T]o the extent that the plaintiff's defamation claim alleged that [defendants] communicated the [statement] to third parties, the plaintiff failed to prove that he suffered special harm, i.e., the loss of something having economic or pecuniary value, as a result of those statements .. . Gaccione v Scarpinato, 2016 NY Slip Op 01640, 2nd Dept 3-9-16

DEFAMATION (COMMUNICATION BETWEEN SPOUSES DOES NOT CONSTITUTE PUBLICATION)/CIVIL PROCEDURE (MOTION TO SET ASIDE VERDICT IN DEFAMATION ACTION SHOULD HAVE BEEN GRANTED)/VERDICT, MOTION TO SET ASIDE (DEFAMATION ACTION, MOTION TO SET ASIDE PLAINTIFF'S VERDICT SHOULD HAVE BEEN GRANTED)

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