January 29, 1988
Appeal from the Supreme Court, Onondaga County, Tait, J.
Present — Denman, J.P., Boomer, Pine, Lawton and Davis, JJ.
Order unanimously reversed on the law with costs, motion denied and complaint reinstated. Memorandum: The court erred in dismissing plaintiff's complaint for failure to allege special damages. A cause of action based on a publication that is defamatory per se need not include an allegation of special damages (Miller v Radin, 32 A.D.2d 1046; see generally, 43-44 N Y Jur 2d, Defamation and Privacy, §§ 34, 167). In such cases, injury to reputation is presumed from the bare fact of the publication and there is no need to plead or prove specific injury or loss as a consequence (see, Hinsdale v Orange County Publ., 17 N.Y.2d 284, 288). A publication is defamatory per se if it imputes to plaintiff incompetence, incapacity or unfitness in the performance of his trade, occupation or profession (see, Mattice v Wilcox, 147 N.Y. 624; 43 N.Y. Jur 2d, Defamation and Privacy, §§ 27-28).
A statement imputing incompetence or dishonesty to the plaintiff is defamatory per se if there is some reference, direct or indirect, in the words or in the circumstances attending their utterance, which connects the charge of incompetence or dishonesty to the particular profession or trade engaged in by plaintiff (see, Kleeberg v Sipser, 265 N.Y. 87, 92; Sanderson v Caldwell, 45 N.Y.2d 398; Grinaldo v Meusburger, 34 A.D.2d 586, appeal dismissed 27 N.Y.2d 598). Here, although the words spoken by defendant did not expressly refer to plaintiff's profession as a lawyer, it is clear that they were spoken "in reference or relation to" plaintiff's profession (Gurtler v Union Parts Mfg. Co., 285 App. Div. 643, 647, affd 1 N.Y.2d 5). The complaint alleges and the answer confirms that the words were spoken by defendant in direct response to a statement concerning plaintiff's engagement as an attorney. The words clearly address the subject of plaintiff's ability to practice his profession and were disparaging of his mental capacity and competence as a lawyer. Thus the words spoken, considered in light of the extrinsic circumstances alleged in the complaint, tended to injure plaintiff in his profession and are defamatory per se.