36 A.D.3d 589
N.Y. App. Div.
2007
Hobart v. Sayville Union Free Sch. Dist. (omitted as partial) / Fusco v. Fusco (main) -->

JANIS FUSCO, Appellant, v PETER FUSCO et al., Respondents.

[829 NYS2d 138]

589

In an action to recover damages for defamation and tortious interference with contractual relations, the plaintiff appeals from an order of the Supreme Court, Nassau County (Alpert, J.), dated May 18, 2005, which granted the defendants’ motion to dismiss the complaint pursuant to CPLR 3211 (a) (1) and (7).

Ordered that the order is modified, on the law, by deleting the provision thereof granting that branch of the defendants’ motion which was to dismiss the defamation cause of action, and substituting therefor a provision denying that branch of the motion as to allegations concerning the alleged filing of a false police report against the defendant Peter Fusco, and otherwise granting that branch of the motion; as so modified, the order is affirmed, and the matter is remitted to the Supreme Court, Nassau County, for a trial on the defamation cause of action only, as limited herein, without costs or disbursements.

CPLR 3016 (a) provides that in an action to recover damages for libel or slander, the particular words complained of shall be set forth in the complaint. A cause of action sounding in defamation which fails to comply with these special pleading requirements must be dismissed (see Simpson v Cook Pony Farm Real Estate, Inc., 12 AD3d 496 [2004]). Failure to state the particular person or persons to whom the allegedly defamatory statements were made also warrants dismissal (id.).

Accepting the plaintiff‘s factual allegations as true, the alleged statement by the defendant Natalie Fusco to the plaintiff‘s employer, that the plaintiff was aware that the plaintiff‘s nephew had exposed himself to the defendants’ daughter, was not defamatory since the possession of knowledge of an event, as pleaded here, was not reasonably susceptible of a defamatory meaning (see Aronson v Wiersma, 65 NY2d 592, 594 [1985]). Additionally, while the statement about the nephew‘s inappropriate behavior must be evaluated within the context of the letter in which it was published (see Armstrong v Simon & Schuster, 85 NY2d 373, 380 [1995]), the absence of the letter itself, quotes from the letter, or, at least, a contextual description thereof demonstrates that the complaint was not pleaded with the particularity required by CPLR 3016 (a) (see Varela v Investors Ins. Holding Corp., 185 AD2d 309, 310 [1992], affd 81 NY2d 958 [1993]; Erlitz v Segal, Liling & Erlitz, 142 AD2d 710, 712 [1988]).

The Supreme Court erred, however, in dismissing so much of the defamation claim as alleged that the defendant Peter Fusco had defamed the plaintiff by accusing her of filing a false police report against him for “pulling a gun on her.” If the statement was published to Dorothy Marchetti as alleged, it may be slanderous per se, as the filing of a false police report is a crime (Penal Law § 175.30). The complaint therefore states a cause of action for purposes of surviving a motion to dismiss pursuant to CPLR 3211, notwithstanding the affidavit of Marchetti that no such statement was made. The Marchetti affidavit is more appropriate for inclusion in a motion for summary judgment under CPLR 3212, and here, the parties did not chart a summary judgment course (see Moutafis v Osborne, 18 AD3d 723, 724 [2005]; Williams v New York City Hous. Auth., 238 AD2d 413, 414 [1997]).

The Supreme Court properly dismissed the plaintiff‘s cause of action alleging tortious interference with contractual relations. “Tortious interference with contract requires the existence of a valid contract between the plaintiff and a third party, defendant‘s knowledge of that contract, defendant‘s intentional procurement of the third-party‘s breach of the contract without justification, actual breach of the contract, and damages resulting therefrom” (Lama Holding Co. v Smith Barney, 88 NY2d 413, 424 [1996]). Here, the plaintiff did not allege that she had a valid contract with the Hewlett-Woodmere school district, only that she worked for the district. She also failed to allege that her transfer to another school within the same district constituted a breach of any contract of which the defendants were aware and of which the defendants intentionally procured a breach by the school district. Furthermore, the plaintiff failed to allege damages resulting from the transfer, such as a reduction in salary or any other harm following from the transfer. Accordingly, the Supreme Court correctly found that the plaintiff‘s allegations failed to set forth the essential elements of a claim for tortious interference with contractual relations (id.; see Blume v A & R Fuels, Inc., 32 AD3d 811, 812 [2006]; Conciatori v Longworth, 259 AD2d 459, 460 [1999]).

Since the defamation cause of action is reinstated to the limited extent concerning allegations of the gun-related police report involving the defendant Peter Fusco, dismissal of the complaint was appropriate in its entirety as to the defendant Natalie Fusco. Miller, J.P., Crane, Lifson and Dillon, JJ., concur.

Miller, J.P., Crane, Lifson and Dillon, JJ.

view b-ray-589-592.html (The prompt asks for the main opinion with a complete case caption. Fusco v. Fusco is the only complete one here as the previous case starts mid-text and the following case starts with a caption but contains only the introductory paragraphs on the provided pages). Moving to only Fusco. Above is the HTML for Janis Fusco v. Peter Fusco. Proceeding.```html

JANIS FUSCO, Appellant, v PETER FUSCO et al., Respondents.

[829 NYS2d 138]

589

In an action to recover damages for defamation and tortious interference with contractual relations, the plaintiff appeals from an order of the Supreme Court, Nassau County (Alpert, J.), dated May 18, 2005, which granted the defendants’ motion to dismiss the complaint pursuant to CPLR 3211 (a) (1) and (7).

Ordered that the order is modified, on the law, by deleting the provision thereof granting that branch of the defendants’ motion which was to dismiss the defamation cause of action, and substituting therefor a provision denying that branch of the motion as to allegations concerning the alleged filing of a false police report against the defendant Peter Fusco, and otherwise granting that branch of the motion; as so modified, the order is affirmed, and the matter is remitted to the Supreme Court, Nassau County, for a trial on the defamation cause of action only, as limited herein, without costs or disbursements.

CPLR 3016 (a) provides that in an action to recover damages for libel or slander, the particular words complained of shall be set forth in the complaint. A cause of action sounding in defamation which fails to comply with these special pleading requirements must be dismissed (see Simpson v Cook Pony Farm Real Estate, Inc., 12 AD3d 496 [2004]). Failure to state the particular person or persons to whom the allegedly defamatory statements were made also warrants dismissal (id.).

Accepting the plaintiff‘s factual allegations as true, the alleged statement by the defendant Natalie Fusco to the plaintiff‘s employer, that the plaintiff was aware that the plaintiff‘s nephew had exposed himself to the defendants’ daughter, was not defamatory since the possession of knowledge of an event, as pleaded here, was not reasonably susceptible of a defamatory meaning (see Aronson v Wiersma, 65 NY2d 592, 594 [1985]). Additionally, while the statement about the nephew‘s inappropriate behavior must be evaluated within the context of the letter in which it was published (see Armstrong v Simon & Schuster, 85 NY2d 373, 380 [1995]), the absence of the letter itself, quotes from the letter, or, at least, a contextual description thereof demonstrates that the complaint was not pleaded with the particularity required by CPLR 3016 (a) (see Varela v Investors Ins. Holding Corp., 185 AD2d 309, 310 [1992], affd 81 NY2d 958 [1993]; Erlitz v Segal, Liling & Erlitz, 142 AD2d 710, 712 [1988]).

The Supreme Court erred, however, in dismissing so much of the defamation claim as alleged that the defendant Peter Fusco had defamed the plaintiff by accusing her of filing a false police report against him for “pulling a gun on her.” If the statement was published to Dorothy Marchetti as alleged, it may be slanderous per se, as the filing of a false police report is a crime (Penal Law § 175.30). The complaint therefore states a cause of action for purposes of surviving a motion to dismiss pursuant to CPLR 3211, notwithstanding the affidavit of Marchetti that no such statement was made. The Marchetti affidavit is more appropriate for inclusion in a motion for summary judgment under CPLR 3212, and here, the parties did not chart a summary judgment course (see Moutafis v Osborne, 18 AD3d 723, 724 [2005]; Williams v New York City Hous. Auth., 238 AD2d 413, 414 [1997]).

The Supreme Court properly dismissed the plaintiff‘s cause of action alleging tortious interference with contractual relations. “Tortious interference with contract requires the existence of a valid contract between the plaintiff and a third party, defendant‘s knowledge of that contract, defendant‘s intentional procurement of the third-party‘s breach of the contract without justification, actual breach of the contract, and damages resulting therefrom” (Lama Holding Co. v Smith Barney, 88 NY2d 413, 424 [1996]). Here, the plaintiff did not allege that she had a valid contract with the Hewlett-Woodmere school district, only that she worked for the district. She also failed to allege that her transfer to another school within the same district constituted a breach of any contract of which the defendants were aware and of which the defendants intentionally procured a breach by the school district. Furthermore, the plaintiff failed to allege damages resulting from the transfer, such as a reduction in salary or any other harm following from the transfer. Accordingly, the Supreme Court correctly found that the plaintiff‘s allegations failed to set forth the essential elements of a claim for tortious interference with contractual relations (id.; see Blume v A & R Fuels, Inc., 32 AD3d 811, 812 [2006]; Conciatori v Longworth, 259 AD2d 459, 460 [1999]).

Since the defamation cause of action is reinstated to the limited extent concerning allegations of the gun-related police report involving the defendant Peter Fusco, dismissal of the complaint was appropriate in its entirety as to the defendant Natalie Fusco. Miller, J.P., Crane, Lifson and Dillon, JJ., concur.

Miller, J.P., Crane, Lifson and Dillon, JJ.

```
monoxide_think The user wants to convert a legal document from provided images and OCR text into clean, semantic HTML. **Analysis of the document:** - Page 589: Ends of a case (Hobart v. Sayville) and starts a new case (Fusco v. Fusco). - Page 590: Continuation of Fusco v. Fusco. - Page 591: Continuation of Fusco v. Fusco. - Page 592: Conclusion of Fusco v. Fusco and start of a new case (Gonyon v. MB Television). **Task requirements:** - Multi-Opinion Documents rule: Convert only the MAIN opinion (one with a complete case caption and full opinion body). - Case 1 (Hobart): Partial content at the start. Skip. - Case 2 (Fusco): Complete caption starts at the bottom of page 589. Full opinion follows through page 592. This is the main opinion to convert. - Case 3 (Gonyon): Starts at the middle of page 592. Partial content at the end. Skip. **Metadata for Fusco v. Fusco:** - Case Name: JANIS FUSCO, Appellant, v PETER FUSCO et al., Respondents. - Short Name: Fusco v. Fusco - Docket: Not explicitly in a docket line, but listed in case title? No, usually looks like “Index No. 2004-...” or similar. OCR shows “[829 NYS2d 138]” which is a citation. - Court: Supreme Court, Appellate Division, Second Department, New York (implied by AD3d citations and format, though text says “Supreme Court, Nassau County... appeals from an order...“). Actually, these are New York Appellate Division reports. - Date: May 18, 2005 (date of order appealed from), but the appellate decision date isn‘t explicitly on these pages. Usually, AD reports have the date at the top of the case. I will omit the date attribute if it‘s not clear on the page. - Citation: [829 NYS2d 138] **Refinement of Tags:** - `` for page breaks. - `` for case citations. - `` for statutes/rules (CPLR, Penal Law). **Page Breaks in Fusco v. Fusco:** - Starts on page 589. - Break to 590: “plaintiff appeals / from an order” - Break to 591: “the plaintiff‘s / employer” - Break to 592: “plaintiff failed / to allege” **Citations in Fusco v. Fusco:** - CPLR 3211 (a) (1) and (7) - CPLR 3016 (a) - Simpson v Cook Pony Farm Real Estate, Inc., 12 AD3d 496 [2004] - Aronson v Wiersma, 65 NY2d 592, 594 [1985] - Armstrong v Simon & Schuster, 85 NY2d 373, 380 [1995] - Varela v Investors Ins. Holding Corp., 185 AD2d 309, 310 [1992], affd 81 NY2d 958 [1993] - Erlitz v Segal, Liling & Erlitz, 142 AD2d 710, 712 [1988] - Penal Law § 175.30 - CPLR 3211 - CPLR 3212 - Moutafis v Osborne, 18 AD3d 723, 724 [2005] - Williams v New York City Hous. Auth., 238 AD2d 413, 414 [1997] - Lama Holding Co. v Smith Barney, 88 NY2d 413, 424 [1996] - Blume v A & R Fuels, Inc., 32 AD3d 811, 812 [2006] - Conciatori v Longworth, 259 AD2d 459, 460 [1999] **Structure:** 1. Case info block. 2. Content from bottom of 589 to middle of 592. 3. Use midpage-ps markers. 4. Normalize law cites. Let‘s double check the short name for Fusco v. Fusco. “JANIS FUSCO... v PETER FUSCO et al.” -> “Fusco v. Fusco“. Court: NY AD reports. I will use “N.Y. App. Div.” or just omit court if not explicitly stated in a header on the page, but AD3d indicates Appellate Division. The summary says “Supreme Court properly granted...“, wait, that‘s Hobart. Fusco starts “In an action...“. Wait, look at the bottom of 589: “Janis Fusco, Appellant, v Peter Fusco et al., Respondents. [829 NYS2d 138]—” This is the caption for the case starting on 590. The block of text on 589 about Sayville School is Hobart v. Sayville (partial). I will skip the Hobart text. The Fusco case caption starts on 589, then the body text starts on 590. Actually, the OCR for 589 ends with the caption for Janis Fusco. Page 590 starts with body text: “In an action...” Let‘s organize the HTML. **Page 589 content:** The case caption for Fusco. `` is for the page where the case starts. **Page 590 content:** Body starts. Citation tags. Mid-sentence break: “appeals from an order“. Wait, the break happens after “appeals” on 589 and before “from” on 590. **Page 591 content:** Break: “the plaintiff‘s employer“. **Page 592 content:** Break: “plaintiff failed to allege“. Signature block: Miller, J.P, Crane, Lifson and Dillon, JJ., concur. Let‘s finalize. Case Name: Janis Fusco v. Peter Fusco Short Name: Fusco v. Fusco Citation: 829 NYS2d 138 Law normalization: - CPLR 3211 -> N.Y. C.P.L.R. 3211 - Penal Law -> N.Y. Penal Law Rejoin hyphenated words: - “require- / ments” -> “requirements” - “inap- / propriate” -> “inappropriate” - “descrip- / tion” -> “description” - “ap- / propriate” -> “appropriate” - “reduc- / tion” -> “reduction” Wait, “inap- / propriate” is split over 590/591. “ap- / propriate” over 591. “reduc- / tion” over 591/592. Actually, the word is “inappropriate” on page 590 line ends with “inap-” and 591 starts with “propriate“. “appropriate” on 591 line ends with “ap-” and continues “propriate“. “reduction” on 592 line starts with “tion” and 591 ends with “reduc-“. Let‘s start the HTML output.