Summary
holding that the statement at issue "cannot reasonably be understood by the mind of the ordinary intelligent reader as imputing to plaintiff insanity or mental instability and, thus, do[es] not constitute [defamation] per se"
Summary of this case from Jones v. Crisis Servs. of Erie Cnty.Opinion
February 10, 1986
Appeal from the Supreme Court, Nassau County (Robbins, J.).
Order reversed, insofar as appealed from, on the law, without costs or disbursements, cross motion granted and complaint dismissed.
The first cause of action seeks to recover from defendant Exchange Funding Corp., a mortgage company, the sum of $450, representing additional work hours expended by plaintiff, an attorney, in representing his clients at a closing of the sale of real property due to the alleged negligence of defendant corporation in failing to tender certified funds at said closing allegedly "because there were insufficient funds" to cover the check. Ultimately, plaintiff's clients were given a certified check drawn on the account of another corporation. The complainant does not allege privity of contract between plaintiff and defendant corporation. Absent fraud, collusion or other special circumstances which are also not alleged in the complaint, defendant corporation is not subject to suit for negligent performance of its contractual duties by one, such as plaintiff, who did not contract for its services (see, Calamari v. Grace, 98 A.D.2d 74).
The second and third causes of action for defamation are based upon a letter written by an employee of defendant corporation to the corporation's attorney explaining the reason for plaintiff having sent a bill for the sum of $450. One sentence reads, in part, that "when the funds at the closing were not able to be certified * * * he [plaintiff] went crazy" (emphasis supplied). The words "went crazy", when construed in the context of the letter and its tenor, indicating plaintiff's extremely angry reaction, cannot reasonably be understood by the mind of the ordinary intelligent reader as imputing to plaintiff insanity or mental instability and, thus, do not constitute libel per se (see, Brill v. Brenner, 62 Misc.2d 102; Wetzel v. Gulf Oil Corp., 455 F.2d 857; DeMoya v. Walsh, 441 So.2d 1120 [Fla]). Since plaintiff has failed to allege special damages with the requisite specificity (see, Cambridge Assoc. v. Inland Vale Farm Co., 116 A.D.2d 684), those causes of action must also be dismissed. Lazer, J.P., Thompson, Rubin and Kunzeman, JJ., concur.