Aрpeal from an order of the Supreme Court (Dier, J.), entered April 9, 1998 in Essex County, which, inter alia, granted defendant Diocese of Ogdensburg’s motion to dismiss the complaint against it.
Defendant Eugene Beaudet is pastor of the Church of St. Philip of Jesus in the Town of Willsboro and St. Joseph’s" Church in the Town of Essex, Essex County (hereinafter the churchеs); the churches are part of defendant Diocese of Ogdensburg. Plaintiff, the owner of an area floral business, was very active in the church, supplied thе churches with flowers for holidays and church occasions and became friends with Beaudet. It appears that Beaudet loaned over $35,000 to plaintiff. When plaintiff failed to repay the loan, the relationship between plaintiff and Beaudet deteriorated. On January 20, 1997, Beaudet wrote a lengthy letter to his local Bishop, Paul Loverde, detailing the problems he had encountered with plaintiff, including plaintiffs failure to repay the loan, his failure to get along with parishioners in his former role as Grand Knight of defendant Knights of Columbus, Willsboro/Essex Council #7461, and plaintiffs personal problems such as “lack of patiencе, anger, weight (overweight) and that he needed to be surrounded by women all the time”. In the letter, Beaudet suggested that plaintiff be dropped from the Lay Ministry program because of his actions.
In a February 1997 church bulletin, there was a notice requesting donations of flowers for Easter week and a statement that “[m]any of the flowers this year will be bought from the Grand Union”. Thereafter, defendant Glen W. Petit, II, a parishioner, distributed an anonymous letter which, although
Plaintiff commenced this action in July 1997. The complaint alleges, inter alia, four causes of actiоn (third through sixth) against Beaudet and the churches for libel and slander arising out of his publication of the January 20, 1997 letter and other allegedly defamatory statemеnts, an additional cause of action (seventh) alleging the Diocese’s liability for Beaudet’s actions under the doctrine of respondeat superior, four causes of action (eighth through eleventh) against Petit and other defendants (hereinafter collectively referred to as the Petit defendants) for libel and slander arising out of the preparation and dissemination of the anonymous letter and publication of other defamatory statements, and сauses of action for intentionally malicious and tortious infliction of mental anguish and emotional distress (twelfth), prima facie tort (thirteenth) and for injunctive relief (fourteenth).
Following service of the complaint but prior to service of an answer, the Diocese moved to dismiss the complaint against it upоn the ground that Beaudet is not its employee. The Petit defendants also moved to dismiss the complaint against them, citing to, among other things, plaintiff’s failure to рlead special damages and to comply with the pleading requirement of CPLR 3016 (a). Supreme Court granted summary judgment in favor of the Diocese and dismissed the eighth through fourteenth causes of action against all defendants. Plaintiff appeals.
Initially, we conclude that Supreme Court did not err in dismissing the complaint against the Petit defendants. First addressing the defamation causes of action, we note the general rule that libel or slander is not actionable unless thе plaintiff suffers special damages, i.e., those contemplating “ ‘the loss of something having economic or pecuniary value’ ” (Liberman v Gelstein,
Contrary to plаintiff’s contention, we conclude that none of the utterances alleged to have been made by any of the Petit defendants falls within any of those exceptions. Patently, despite plaintiffs effort, the statements alleged in paragraphs 32 and 35 of the complaint to have been made by Beaudet cannot now be attributed to the Petit defendants. Further, we see nothing in the anonymous letter handed out at mass that accuses plaintiff of a crime, that relates in any way to his business or otherwise falls within any of the exceptions. Finally, the allegation of paragraph 75 of the complaint that Petit and his wife, defеndant Vicki Petit, “have told and are continuing to tell various customers at [their pizzeria] that the plaintiff has stolen money from them” fails to comply with the requirеments of CPLR 3016 (a) that “the defamatory words be set forth in haec verba” (Conley v Gravitt,
Briefly addrеssing the remaining causes of action against the Petit defendants, we agree with Supreme Court that plaintiffs failure to allege special damages wаs fatal to his cause of action alleging prima facie tort (see, DiSanto v Forsyth,
Turning finally to the appeal from Supreme Cоurt’s disposition of the Diocese’s motion to dismiss the complaint, we are constrained to the view that Supreme Court erred in granting summary judgment in favor of the Diоcese. Fundamentally, a court entertaining a motion to dismiss for failure to state a cause of action may pursuant to CPLR 3211 (c) elect to treat the motion as one for summary judgment so long as the parties have been given prior notice of the court’s intention to do so or, absent such notice, when the parties have “otherwise received ‘adequate notice’ by expressly seeking summary judgment or submitting facts and arguments clearly indicating that they
Now resolving the motion to dismiss, and limiting our analysis to the sole ground advanced on the motion (i.e., that Beaudet was not the Diocese’s employee and did not in any event act within the scope of his emрloyment), we conclude that the allegations of the complaint state a valid cause of action for vicarious liability against the Diocesе based upon the doctrine of respondeat superior (see, Riviello v Waldron,
The parties’ remaining contentions have either been rendered academic or have been considered and found to be unavailing.
Peters, Spain, Carpinello and Graffeo, JJ., concur. Ordered that the order is modified, on the law, without costs, by revers: ing so much thereof as awarded summary judgment in favor of defendant Diocese of Ogdensburg and dismissed the complaint against it; motion by said defendant to dismiss the complaint denied; and, as so modified, affirmed.