        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

809
CA 15-02157
PRESENT: SMITH, J.P., CARNI, LINDLEY, DEJOSEPH, AND SCUDDER, JJ.


CRANE-HOGAN STRUCTURAL SYSTEMS, INC., AND
DANIEL C. HOGAN, PLAINTIFFS-RESPONDENTS,

                    V                             MEMORANDUM AND ORDER

MARY ELLEN BELDING, DEFENDANT-APPELLANT.


ABRAMS, FENSTERMAN, FENSTERMAN, EISMAN, FORMATO, FERRARA & WOLF, LLP,
ROCHESTER (SHARON P. STILLER OF COUNSEL), FOR DEFENDANT-APPELLANT.

ADAMS BELL ADAMS, P.C., ROCHESTER (RICHARD T. BELL, JR., OF COUNSEL),
FOR PLAINTIFFS-RESPONDENTS.


     Appeal from an order of the Supreme Court, Monroe County (J.
Scott Odorisi, J.), entered September 2, 2015. The order, among other
things, denied defendant’s pre-answer motion to dismiss the complaint
and for sanctions.

     It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by granting the motion in part and
dismissing the complaint insofar as it alleged defamation per se under
the serious crime category, and as modified the order is affirmed
without costs.

     Memorandum: Plaintiffs commenced this defamation action seeking
compensatory and punitive damages based on statements contained in a
letter that defendant sent to a federal judge regarding the sentencing
of plaintiff Crane-Hogan Structural Systems, Inc. upon its plea of
guilty of a violation of the federal Clean Water Act (33 USC § 1251 et
seq.). We agree with defendant that Supreme Court erred in denying
that part of her pre-answer motion to dismiss the complaint pursuant
to CPLR 3211 (a) (7) insofar as the complaint alleged that defendant
committed defamation per se by “charging plaintiff[s] with a serious
crime” (Liberman v Gelstein, 80 NY2d 429, 435). We conclude that
certain statements in the letter alleging criminal conduct on the part
of plaintiffs do not constitute defamation per se because “reference
to extrinsic facts is necessary to give them a defamatory import”
(Aronson v Wiersma, 65 NY2d 592, 594-595), and that other statements,
e.g., accusing plaintiffs of terrorism, do not constitute defamation
per se because they are “likely to be perceived as ‘rhetorical
hyperbole [or] a vigorous epithet’ ” (LeBlanc v Skinner, 103 AD3d 202,
213, quoting Greenbelt Coop. Publ. Assn., Inc. v Bresler, 398 US 6,
14; see Lukashok v Concerned Residents of N. Salem, 160 AD2d 685,
686). We otherwise affirm the order for reasons stated in the
                                -2-                  809
                                               CA 15-02157

decision at Supreme Court.




Entered:   September 30, 2016         Frances E. Cafarell
                                      Clerk of the Court
