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SERIOUS-CRIME DEFAMATION CAUSE OF ACTION SHOULD HAVE BEEN DISMISSED.

The Fourth Department determined the “serious crime” defamation per se cause of action should have been dismissed. The defamation action stemmed from a letter written to a federal judge by the defendant, in connection with plaintiff-corporation’s pleading guilty to a violation of the Clean Water Act:

Supreme Court erred in denying that part of her pre-answer motion to dismiss the complaint pursuant to CPLR 3211 (a) (7) insofar as the complaint alleged that defendant committed defamation per se by “charging plaintiff[s] with a serious crime” … . We conclude that certain statements in the letter alleging criminal conduct on the part of plaintiffs do not constitute defamation per se because “reference to extrinsic facts is necessary to give them a defamatory import” … , and that other statements, e.g., accusing plaintiffs of terrorism, do not constitute defamation per se because they are “likely to be perceived as rhetorical hyperbole [or] a vigorous epithet’ ” … . Crane-Hogan Structural Sys., Inc. v Belding, 2016 NY Slip Op 06376, 4th Dept 9-30-16

DEFAMATION (SERIOUS-CRIME DEFAMATION PER SE CAUSE OF ACTION SHOULD HAVE BEEN DISMISSED)

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THE PROSECUTOR RECOMMENDED A LEVEL ONE RISK ASSESSMENT BUT THE JUDGE ASSESSED ADDITIONAL POINTS AT THE CONCLUSION OF THE HEARING RAISING THE RISK LEVEL TO TWO; BECAUSE DEFENDANT WAS NOT GIVEN THE OPPORTUNITY TO ARGUE FOR A DOWNWARD DEPARTURE, DEFENDANT IS ENTITLED TO A NEW HEARING (FOURTH DEPT).
PURSUANT TO THE “MINISTERIAL EXCEPTION,” THE HOSTILE WORK ENVIRONMENT COMPLAINT BY A PRIEST AGAINST THE DIOCESE OF BUFFALO WAS DISMISSED (FOURTH DEPT).
EVIDENCE DID NOT ESTABLISH AS A MATTER OF LAW THAT THE INSURED’S WATER-DAMAGE CLAIM WAS FRAUDULENTLY INFLATED; INSURER WAS NOT ENTITLED TO SUMMARY JUDGMENT DISCLAIMING COVERAGE (FOURTH DEPT).
FATHER WAS ENTITLED TO A HEARING ON WHETHER HE WILLFULLY VIOLATED A CHILD SUPPORT ORDER, ALTHOUGH FATHER COMPLETED THE SENTENCE OF INCARCERATION, THE APPEAL IS NOT MOOT BECAUSE OF THE STIGMA OF A CIVIL CONTEMPT FINDING (FOURTH DEPT).
DOCUMENTARY EVIDENCE SUBMITTED BY DEFENDANT SUBCONTRACTOR DEMONSTRATED IT DID NOT HAVE THE AUTHORITY TO SUPERVISE OR CONTROL THE WORK THAT CAUSED PLAINTIFF’S INJURY; THEREFORE THE LABOR LAW 240 (1) AND 200 CAUSES OF ACTION WERE PROPERLY DISMISSED AND THE COMMON LAW NEGLIGENCE CAUSE OF ACTION SHOULD HAVE BEEN DISMISSED (FOURTH DEPT).
ALTHOUGH THERE WAS EVIDENCE PLAINTIFF’S USE OF A LADDER INSTEAD OF THE SCISSORS LIFT CREATED THE SAFETY ISSUE LEADING TO PLAINTIFF’S FALL IN THIS LABOR LAW 240(1) ACTION, THERE WAS EVIDENCE THE OPERATOR OF THE SCISSORS LIFT WOULD NOT ALLOW PLAINTIFF TO ACCESS IT, RAISING A QUESTION OF FACT WHETHER PLAINTIFF’S USE OF A LADDER WAS THE SOLE PROXIMATE CAUSE OF THE ACCIDENT; THERE WAS A SUBSTANTIAL DISSENT (FOURTH DEPT).
PLAINTIFF’S ASSERTION OF A NEW THEORY OF LIABILITY IN THE PAPERS ANSWERING DEFENDANT HOSPITAL’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN CONSIDERED, SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FOURTH DEPT).
ARBITRATOR EXCEEDED HIS POWERS BY REFUSING TO REVIEW THE ENTIRE RECORD OF THE PROCEEDINGS, AWARD PROPERLY VACATED.

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