Prince v Fox Tel. Stas., Inc.

Prince v Fox Tel. Stas., Inc. 2012 NY Slip Op 02405 Decided on March 29, 2012 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 March 29, 2012
Tom, J.P., DeGrasse, Freedman, Richter, Román, JJ. 7238 &
1036 107129/11

[*1]Matthew Prince, Individually and on Behalf of D'Lites L.A.M.D. B.H. Inc., Plaintiffs-Respondents,

v

Fox Television Stations, Inc., et al., Defendants-Appellants.




Hogan Lovells US LLP, New York (Katherine M. Bolger of
counsel), for appellants.
Napoli Bern Ripka Shkolnik, LLP, New York (Adam Julien
Gana of counsel), for respondents.

Order, Supreme Court, New York County (Carol R. Edmead, J.), entered November 23, 2011, which, insofar as appealed from, denied defendants' motion to dismiss the defamation claim of plaintiff D'Lites L.A.M.D. B.H. Inc. and the product disparagement claim of plaintiffs relating to a D'Lites ice cream store in Babylon, New York, unanimously modified, on the law, to the extent of dismissing the product disparagement claim in connection with damages for lost customers, and otherwise affirmed, without costs.

Plaintiff D'Lites L.A.M.D. B.H. Inc. sustained its burden of pleading that the alleged defamatory consumer report produced and broadcast by defendants was "of and concerning" plaintiff (see Giaimo v Literary Guild, 79 AD2d 917 [1981]; see generally Golden Bear Distrib. Sys. v Chase Revel, Inc., 708 F2d 944 [5th Cir 1983]).

Plaintiffs' product disparagement claim should have been dismissed to the extent it seeks damages in connection with lost customers, as plaintiffs failed to plead such special damages with the requisite specificity (see Drug Research Corp. v Curtis Publ. Co., 7 NY2d 435, 440-441 [1960]; Christopher Lisa Matthew Policano, Inc. v North Am. Precis Syndicate, 129 AD2d 488, 490 [1987]).

M-1036Matthew Price, etc., et al. v Fox Television Station, Inc. Motion to supplement the record denied.

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

ENTERED: MARCH 29, 2012

CLERK