WDF, Inc. v Kohler Co.

WDF, Inc. v Kohler Co. 2006 NY Slip Op 05004 [30 AD3d 589] Decided on June 20, 2006 Appellate Division, Second 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 20, 2006
SUPREME COURT OF THE STATE OF NEW YORKAPPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
THOMAS A. ADAMS, J.P.
GLORIA GOLDSTEIN
DANIEL F. LUCIANO
ROBERT A. SPOLZINO, JJ.
2005-07767 DECISION & ORDER

[*1]WDF, Inc., appellant,

v

Kohler Co., respondent, et al., defendant. (Index No. 4944/05)




McDonough Marcus Cohn Tretter Heller & Kanca, LLP, New
Rochelle, N.Y. (Howard S. Jacobowitz of counsel), for appellant.
Rivkin Radler, LLP, Uniondale, N.Y. (Evan H. Krinick, Cheryl
F. Korman, and Peter C. Contino of
counsel), for respondent.

In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals from so much of an order of the Supreme Court, Westchester County (Lefkowitz, J.), entered July 11, 2005, as granted the motion of the defendant Kohler Co. pursuant to CPLR 3211(a)(1) and (7) to dismiss the third cause of action alleging trade libel.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The motion of the defendant Kohler Co. to dismiss the third cause of action alleging trade libel was properly granted. The challenged statement published by Kohler Co., which was preceded by a recitation of the facts upon which it was based, without implication of the existence of additional undisclosed facts, constituted a nonactionable opinion (see Gross v New York Times, 82 NY2d 146; John Grace & Co. v Todd Assoc., 188 AD2d 585). Moreover, it is undisputed that the statement fit within the common interest privilege, and we agree with the Supreme Court that the plaintiff's conclusory allegations of malice did not suffice to overcome that privilege (see Hanlin v Sternlicht, 6 AD3d 334; Sborgi v Green, 281 AD2d 230; Red Cap Valet v Hotel Nikko [USA], 273 AD2d 289; Trachtman v Empire Blue Cross & Blue Shield, 251 AD2d 322).
ADAMS, J.P., GOLDSTEIN, LUCIANO and SPOLZINO, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court