In Rosenthal v. MDX (16519/14, NYLJ 1202794299180, App. Div., 2nd, decided July 26, 2017), a New York doctor brought a lawsuit against an operator of a website after the website repeatedly misidentified him as being deceased. In the lawsuit, commenced in New York Supreme Court, Kings County, the doctor sought damages for defamation, negligence, and prima facie tort - but the complaint did not allege any special damages. As a result, the website operator moved pursuant to CPLR 3211(a)(7) to dismiss the complaint for failure to state a cause of action. The Supreme Court granted the motion, and the doctor appealed to the New York Appellate Division, Second Department.
The Appellate Division affirmed the trial court's decision, thereby dismissing the doctor's lawsuit. With respect to the defamation claim, the Court held the following: "A false written statement is libelous per se, and thus actionable without allegation or proof of special damage, if it 'tends to expose the plaintiff to public contempt, ridicule, aversion or disgrace, or induce an evil opinion of him in the minds of rightthinking persons, and to deprive him of their friendly intercourse in society'...A false written statement is also libelous per se if it 'tends to disparage a person in the way of his office, profession or trade'...Contrary to the plaintiff's contention, the defendant's alleged act of misidentifying him as deceased does not fall within these definitions...."
Salvatore R. Marino, Esq.
