J. P. Mccullough v. Certain Teed Products Corporation

Order unanimously affirmed, with costs. Memorandum: Defendant appeals from an order of Special Term which denied its motion under CPLR 3211 to dismiss plaintiffs amended complaint. We find that the allegations of the complaint are sufficient to state the two causes of action alleged therein. The first cause of action, in the nature of an intentional tort, alleges, inter alia, that plaintiff was discharged from his employment because of his refusal to participate with other employees of defendant, including his superiors, in allegedly unlawful conduct. While we do not read the complaint as stating a motive for economic gain on the part of plaintiffs co-employees or his superiors, the issue is irrelevant in any event (see Morrison v National Broadcasting Co., 24 A.D.2d 284, 287, revd on other grounds 19 N.Y.2d 453). In an action for intentional or prima facie tort, special damages must be alleged (Wegman v Dairylea Coop., 50 A.D.2d 108). Liability depends upon the causing of actual damages which may not be presumed from the intention or act of the tortfeasor (Zausner v Fotochrome, 18 A.D.2d 649). When plaintiffs grievance is predicated on a discharge from employment, his damages are such as are usually comprehended in prima facie tort actions (cf. Brandt v Winchell, 283 App Div 338; 286 App Div 249, affd 3 N.Y.2d 628). Thus, in pleading a prima facie tort, plaintiffs complaint will fail unless he specifically pleads his actual damages. Here the proximate result of the discharge of the plaintiff is alleged to have been plaintiffs loss of wages. That loss has been sufficiently alleged to put the defendant on notice as to the precise nature of the damages in order that the defendant might be prepared to defend the action (see Reporters Assn. of Amer. v Sun Print. & Pub. Assn., 186 NY 437, 443). Plaintiffs second cause of action alleges slander. The words claimed to have been defamatory are: "After what he did it is no wonder that Mr. Prechek will not give you a reference." It is alleged that these words were communicated by telephone by an employee of defendant to an employment agency, after plaintiffs discharge, in response to the employment agencys inquiry as to why Mr. Prechek, who was plaintiffs former superior, had not returned a prior telephone call from the employment agency. Words tending to disparage a person in the way of his office, profession or trade are slanderous per se (GTP Leisure Prods. v B-W Footwear Co., 55 A.D.2d 1009; Gersh v Kaspar & Esh, 11 A.D.2d 1005). The meaning of allegedly defamatory words is that which they would ordinarily be expected to convey to those to whom they are addressed (Rovira v Boget, 240 NY 314, 316; Greyhound Securities v Greyhound Corp., 11 A.D.2d 390). The complaint alleges that the meaning of said words is that plaintiff was incompetent or incapable, or did some act of a bad or unlawful character. Under the circumstances of this case, we find that the listener could reasonably infer such a meaning from the spoken words. Whether such was in fact the meaning is a jury question (November v Time, Inc., 13 N.Y.2d 175; Mencher v Chesley, 297 NY 94). If the words complained of are found to be slanderous [70 A.D.2d 771 Page 772]