Friday, July 24, 2009

Complaint Alleging Slander By No-Fault Insurer Dismissed -- Particular Words Complained of Not Set Forth

Horbul v. Mercury Ins. Group
(2nd Dept., decided 7/21/2009)

New York is not alone in its requirement that a complaint which alleges defamation must set forth the particular words complained of. New York CPLR Rule 3016 provides:
Rule 3016. Particularity in specific actions. 
(a) Libel or slander. In an action for libel or slander, the particular words complained of shall be set forth in the complaint, but their application to the plaintiff may be stated generally.
Horbul sued Mercury for allegedly slandering him by reporting to the police that he had filed a fraudulent no-fault insurance claim for his son with Mercury.  In REVERSING the Kings County Supreme Court's denial of Mercury motion to dismiss the complaint, the Second Department ruled:
The plaintiff alleged in the complaint that the defendants committed slander per se when they reported to the police that the plaintiff had filed a fraudulent claim with them for no-fault medical benefits for his son. However, the complaint failed to comply with CPLR 3016(a), which requires that a complaint sounding in defamation "set forth the particular words complained of'" (Simpson v Cook Pony Farm Real Estate, Inc., 12 AD3d 496, 497, quoting CPLR 3016[a]; see Fusco v Fusco, 36 AD3d 589). Compliance with CPLR 3016(a) is strictly enforced (see Abe's Rooms, Inc. v Space Hunters, Inc., 38 AD3d 690). Accordingly, that branch of the defendants' motion which was pursuant to CPLR 3211(a)(7) to dismiss the complaint for failure to state a cause of action should have been granted. 
Even if the complaint had set forth the "particular words" alleged to be defamatory, the doctrine of qualified privilege might have applied to protect Mercury and its personnel from liability.  See LaBaron v. Erie Ins. Co., 59 AD3d 939 (4th Dept. 2009). In that case, the Fourth Department noted:
In the instant case, [Erie's special investigator] is protected by a qualified privilege in that the statements he gave were part of his duties to report possible false insurance claims to the police. Chapo v. Premier Liquor Corporation, 259 AD2d 1050 (4th Dept, 1999). There can be no liability for merely giving information to legal authorities who are left entirely free to use their own judgment in proceeding any further with respect to that information. Lowmack v. Eckerd Corporation, 303 AD2d 998 (4th Dept, 2003); Cobb v. Willis, 208 AD2d 1155 (4th Dept, 1994). Moreover, Defendants and the police certainly have a common interest in the investigation of potentially false insurance claims. Liberman v. Gelstein, 80 NY2d 429; Herlihy v. Metropolitan Museum of Art, 214 AD2d 250.

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