Opinion · Appellate Division of the Supreme Court of the State of New York
Fink v. Horn Construction Co.
Fink v. Horn Constr. Co., 58 A.D.2d 574 (Appellate Division of the Supreme Court of the State of New York 1977)
- Type
- Opinion
- Court
- Appellate Division of the Supreme Court of the State of New York
- Jurisdiction
- New York
- Date
- 1977-06-06
- Topic
- general
In an action to recover damages for defamation and for injunctive relief, plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County, dated June 25, 1976, as (1) granted the motion of defendant Horn Construction Co., Inc., and the cross motions of defendants Designers Fore, Ltd., and Georgia Pacific Corp., for summary judgment, (2) dismissed the complaint as against defendant Horn-stein insofar as it sought punitive damges, and (3) denied their cross motion for leave to amend the complaint. Order modified, on the law, by (1) deleting from the first decretal paragraph thereof the words "denied in all its respects”, and substituting therefor the following: "granted except as to (a) the first and second causes of action set forth in the proposed amended complaint insofar as they seek damages for libel from Baldwin Jewish Center, (b) the third, fourth, fifth, sixth, ninth, tenth and eleventh causes of action set forth in the proposed amended complaint and (c) the seventh cause of action set forth in the proposed amended complaint insofar as it seeks damages for breach of contract from Designers Fore, Ltd.”; (2) deleting the third decretal paragraph thereof and substituting therefor a provision *575Cohalan, J. P., Damiani, Rabin and Titone, JJ., concur.
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FINK v. HORN CONSTRUCTION CO., INC.,58 A.D.2d 574[2d Dept 1977]
DAVID A. FINK et al., Appellants, v. HORN CONSTRUCTION CO., INC., et al.,
Respondents.
Appellate Division of the Supreme Court of New York, Second Department.
In an action to recover damages for defamation and for injunctive relief, plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County, dated June 25, 1976, as (1) granted the motion of defendant Horn Construction Co., Inc., and the cross motions of defendants Designers Fore, Ltd., and Georgia Pacific Corp., for summary judgment, (2) dismissed the complaint as against defendant Hornstein insofar as it sought punitive damages, and (3) denied their cross motion for leave to amend the complaint. Order modified, on the law, by (1) deleting from the first decretal paragraph thereof the words "denied in all its respects", and substituting therefor the following: "granted except as to (a) the first and second causes of action set forth in the proposed amended complaint insofar as they seek damages for libel from Baldwin Jewish Center, (b) the third, fourth, fifth, sixth, ninth, tenth and eleventh causes of action set forth in the proposed amended complaint and (c) the seventh cause of action set forth in the proposed amended complaint insofar as it seeks damages for breach of contract from Designers Fore, Ltd."; (2) deleting the third decretal paragraph thereof and substituting therefor a provisionPage 575that the motion of defendant Horn Construction Company is denied; (3) deleting from the fifth decretal paragraph thereof the words "Horn Construction Co. Inc."; (4) deleting the seventh and eighth decretal paragraphs thereof; and (5) deleting from the sixth paragraph thereof the words "other than for punitive damages". As so modified, order affirmed insofar as appealed from, without costs or disbursements. Plaintiffs' time to serve the amended complaint in accordance herewith is extended until 20 days after entry of the order to be made hereon. The libel action against defendant Horn Construction Company, and the claim for punitive damages against defendant Hornstein, present questions of fact for a jury. The seventh and eighth causes of action of the proposed amended complaint as against defendant Baldwin Jewish Center are not barred by the Statute of Limitations (see CPLR203, subd [c]). The letter written by defendant Designers Fore, Ltd., to the plaintiffs, and published to defendant Hornstein, expressing mere dissatisfaction with plaintiffs' performance of the remodeling project, was not libelous (seeTracy v Newsday,Inc.,5 N.Y.2d 134,137). The denial of defendant Designers Fore, Ltd.'s, prior motion to dismiss the complaint for failure to state a cause of action (see CPLR3211, subd [a], par 7) does not bar a motion for summary judgment (see CPLR3212;Dietrich,Inc. v Brentwood Tel. Corp.,56 A.D.2d 753). The other issues raised by appellants have been considered and found to be without merit. Cohalan, J.P., Damiani, Rabin and Titone, JJ., concur.