Spinnell v Seldon

Spinnell v Seldon 2007 NY Slip Op 05146 [41 AD3d 170] Decided on June 12, 2007 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on June 12, 2007
Sullivan, J.P., Nardelli, Buckley, Catterson, Kavanagh, JJ. 1294-
1295
Index 107483/03

[*1]Andrew J. Spinnell, Plaintiff-Respondent,

v

Philip Seldon, individually and under the name of Citizens for a Better New York, Defendant-Appellant.




Sweetbaum & Sweetbaum, Lake Success (Marshall D.
Sweetbaum of counsel), for appellant.
Andrew J. Spinnell, New York, respondent pro se.

Judgment, Supreme Court, New York County (Donna M. Mills, J.), entered November 17, 2006, upon a jury verdict, awarding plaintiff damages, and bringing up for review an order, same court (Judith J. Gische, J.), entered May 11, 2006, which, inter alia, denied defendant's cross motion for summary judgment, unanimously affirmed, with costs. Appeal from the May 11, 2006 order, unanimously dismissed, without costs, as subsumed in the appeal from the judgment.

Clear and convincing evidence supports the verdict finding that defendant, in documents sent by him to lawyers and other professionals with whom plaintiff conducted business and from whom he received referrals, made statements about plaintiff that were false and defamatory. The documents contained assertions that plaintiff, an attorney, had engaged in tax fraud, had submitted forged or falsified documents to a United States District Court, and had been found unfit to be a judge (see Dillon v City of New York, 261 AD2d 34, 38 [1999]). Although the statement that plaintiff had been found to have committed "egregious ethical misconduct," should have been deemed nonactionable as an expression of opinion based on the disclosed circumstance that plaintiff had, in fact, been reprimanded by a Grievance Committee in Connecticut, in light of the number of other properly submitted statements, and in view of their egregious nature, we perceive no ground to disturb the $100,000 award of compensatory damages and $400,000 award of punitive damages (see Rosenberg, Minc & Armstrong v Mallilo & Grossman,
__ AD3d __ [2007], 2007 NY Slip Op 3186). [*2]

We have considered defendant's other arguments and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JUNE 12, 2007

CLERK