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42 A.D.3d 310

Galasso v. Saltzman

Appellate Division of the Supreme Court of the State of New York · decided 2007-07-05

Cited by 2 later decisions — most recently February 2011

Good law ✅— No negative treatment on recordhow we know

Decided 2007-07-05

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Sullivan, J.P.,

¶1concurs in a separate memorandum as follows: I write to note my disagreement with the majority to the extent that it holds that defendant’s statement to plaintiffs landscaper and to numerous other people working on plaintiffs property that, “I had him [plaintiff] checked out, and I don’t care if he’s connected, I’m going to get him,” the subject of the fourth cause of action, is protected opinion.

¶2In my view, these comments constitute mixed opinion, which does not enjoy any such protection. Where statements of opinion imply that they are based upon facts that justify the opinion but are unknown to the listener or reader, they are considered to be mixed opinion and remain actionable as a matter of law (Steinhilber v Alphonse, 68 NY2d 283, 289 [1986]). The actionable element of a mixed opinion is not the false opinion itself, but rather the implication that the speaker knows certain facts, unknown to his or her audience, that support the opinion and are detrimental to the person about whom he or she is speaking (id. at 290; Gjonlekaj v Sot, 308 AD2d 471 [2003]).

¶3Here, the statement by defendant—“I had him [plaintiff] checked out, and I don’t care if he’s connected”—is more than an implication of unknown facts. It is an explicit reference to undisclosed facts known to defendant that serve as the basis for the defamatory statement, which is intended to convey the implication that plaintiff has suspicious, illicit or otherwise illegal affiliations.

¶4As the majority correctly notes, however, general allegations of injury to reputation are insufficient to support a slander claim. As a general rule, slander is not actionable absent a showing of special harm (Liberman v Gelstein, 80 NY2d 429, 434 [1992]), unless the defamatory statement constitutes slander per se (id. at 435). Special damages contemplate loss of economic or pecuniary value (id. at 434-435). The general allegation of being “connected,” a reference to an organized crime affiliation, does not constitute slander per se (see id. at 435; *313Privitera v Town of Phelps, 79 AD2d 1, 4 [1981], appeal dismissed 53 NY2d 796 [1981]).

¶5Thus, although contrary to the majority holding, the fourth cause of action states a viable claim of defamation, it fails for lack of an allegation of special damages. With that limited departure from its reasoning, I concur in the majority’s reversal of the order on appeal.

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