July 21, 2009

Horbul v Mercury Ins. Group (2009 NY Slip Op 05947)

Headnote

The court considered a case in which the plaintiff alleged that the defendants had committed slander per se by reporting to the police that the plaintiff had filed a fraudulent claim for no-fault medical benefits for his son. The plaintiff's complaint failed to comply with CPLR 3016(a), which required that a complaint sounding in defamation set forth the particular words complained of. The defendants' motion to dismiss the complaint for failure to state a cause of action was denied by the Supreme Court. However, the Appellate Division reversed that decision, holding that the plaintiff's complaint did not meet the requirements set forth in CPLR 3016(a) and that the motion to dismiss the complaint should have been granted. Therefore, the Appellate Division ruled in favor of the defendants and ordered the dismissal of the complaint.

Reported in New York Official Reports at Horbul v Mercury Ins. Group (2009 NY Slip Op 05947)

Horbul v Mercury Ins. Group

2009 NY Slip Op 05947 [64 AD3d 682]

July 21, 2009

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

As corrected through Wednesday, September 2, 2009

Petro Horbul, Respondent,
v
Mercury Insurance Group et al., Appellants.

—[*1] Picciano & Scahill, P.C., Westbury, N.Y. (Jason Tenenbaum of counsel), for appellants.

Votto & Cassata, LLP, Staten Island, N.Y. (Christopher J. Albee of counsel), for respondent.

In an action to recover damages for slander per se, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Balter, J.), dated November 19, 2008, as denied that branch of their motion which was pursuant to CPLR 3211 (a) (7) to dismiss the complaint.

Ordered that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the defendants’ motion which was pursuant to CPLR 3211 (a) (7) to dismiss the complaint is granted.

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 [2004], quoting CPLR 3016 [a]; see Fusco v Fusco, 36 AD3d 589 [2007]). Compliance with CPLR 3016 (a) is strictly enforced (see Abe’s Rooms, Inc. v Space Hunters, Inc., 38 AD3d 690 [2007]). 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. Spolzino, J.P., Angiolillo, Leventhal and Lott, JJ., concur.