Friday, March 18, 2016

A cause of action for defamation.

Practice point:  The Appellate Division found that plaintiff, an attorney, could not prevail on his claim to recover damages for defamation, and granted the motion to set aside the jury verdict. The cause of action was based on allegations that the wife-defendant told her husband-defendant that plaintiff threatened her and their children, and that the defendants told third parties about the threat.

The Appellate Division stated that because the defendants are spouses, the communications between them do not constitute publication. Therefore, even if the wife's statement were a substantial factor in causing plaintiff to lose legal work, that statement is not actionable. In addition, plaintiff failed to prove that, as a result of defendants' statements, he suffered special harm, namely, the loss of something having economic or pecuniary value.

Student note:  Pursuant to CPLR 4401 or 4404, a motion for judgment as a matter of law 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 jury's conclusion, and no rational process by which the jury could find in favor of the nonmoving party.  In considering the motion, the court must afford the nonmovant every inference which may properly be drawn from the facts presented, and the facts themselves must be considered in a light most favorable to the nonmovant.

Case:  Gaccione v. Scarpinato, NY Slip Op 01640 (2d Dep't 2016)

Here is the decision.

Monday's issue:  Statute of frauds and quantum meruit.