Summary
refusing to grant declaratory relief in defamation suit because plaintiff can seek post-publication damages
Summary of this case from Bihari v. GrossOpinion
January 21, 1999.
Appeal from the Supreme Court, New York County (Richard Lowe, III, J.).
Based solely on an analysis of "whether the facts as alleged fit within any cognizable legal theory" ( Leon v. Martinez, 84 N.Y.2d 83, 87-88; see also, Wiener v. Lazard Freres Co., 241 A.D.2d 114, 120), we agree with the motion court that the complaint fails to state a claim for which relief can be granted. The first cause of action, seeking declaratory relief but no damages for an alleged defamation, fails because plaintiff has an adequate remedy at law, i.e., post-publication damages ( see, e.g., Kay v. Kay, 223 A.D.2d 684, 685). Even if some form of equitable remedy were appropriate for defamation, a dubious proposition at best, the particular equitable relief here sought, in the nature of a prior restraint, is strongly disfavored ( see, Schermerhorn v. Rosenberg, 73 A.D.2d 276, 288) and would be wholly inappropriate in the present context.
The second cause of action, seeking damages based on statements made to plaintiff's co-employees, is barred since the statements sued upon are qualifiedly privileged ( see, e.g., Lambert v. General Elec. Co., 244 A.D.2d 841, 842), and plaintiff has not adequately alleged any ground upon which defendant might be disqualified from invoking the privilege ( see, Boyle v. Stiefel Labs., 204 A.D.2d 872, 875, lv denied 84 N.Y.2d 803). As to the remaining causes, because plaintiff has not alleged any basis to doubt the general accuracy of the material provided defendant by an outside source under reliable circumstances, there is no issue as to gross irresponsibility ( see, Weiner v. Doubleday Co., 74 N.Y.2d 586, 595-596, cert denied 495 U.S. 930), and plaintiff, for the most part having pleaded these remaining causes in reliance upon the text of a third-party paraphrasing of defendant's alleged statements, has failed to assert these last causes with the particularity required by CPLR 3016 (a) ( see, Le Sannom Bldg. Corp. v. Dudek, 177 A.D.2d 390, 391). We have considered plaintiff's remaining arguments and find them to be unavailing.
Concur — Rosenberger, J.P., Ellerin, Tom and Saxe, JJ.