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

476
CA 14-01909
PRESENT: SMITH, J.P., CARNI, LINDLEY, SCONIERS, AND DEJOSEPH, JJ.


ACCADIA SITE CONTRACTING, INC.,
PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

JEFFREY SKURKA, DEFENDANT-RESPONDENT.


RUPP, BAASE, PFALZGRAF, CUNNINGHAM & COPPOLA LLC, BUFFALO (JASON G.
ULATOWSKI OF COUNSEL), FOR PLAINTIFF-APPELLANT.

WOODS OVIATT GILMAN LLP, ROCHESTER (WILLIAM F. SAVINO OF COUNSEL), FOR
DEFENDANT-RESPONDENT.


     Appeal from an order of the Supreme Court, Erie County (Kevin M.
Dillon, J., for Joseph R. Glownia, J.), entered February 4, 2014. The
order, insofar as appealed from, granted the cross motion of defendant
to dismiss the complaint.

     It is hereby ORDERED that the order insofar as appealed from is
unanimously reversed on the law without costs, the cross motion is
denied, and the complaint is reinstated.

     Memorandum: Plaintiff was awarded a road construction project by
the City of Niagara Falls, and thereafter commenced this defamation
action based on statements allegedly made by defendant, the “City
Engineer” assigned to oversee the project, to a Niagara Falls news
reporter. The statements were subsequently published in the Niagara
Falls Reporter. The first alleged defamatory statement at issue on
this appeal was published as follows: “[Defendant] said the
[compaction] test was done wrong, and went so far as to accuse
[plaintiff] of rigging the test. He said [plaintiff] ‘put the ram
hole in the hole and then compacted the soil before they did the test,
which would guarantee them test results that would show the soil was
compacted regardless of whether it was really compacted or not.’ ”
The second alleged defamatory statement at issue on this appeal was
published as follows: “It’s pretty clear there is collusion. There
is a lot of money at stake here.” Plaintiff appeals from an order
that, inter alia, granted defendant’s cross motion seeking dismissal
of the complaint for failure to state a cause of action (see CPLR 3211
[a] [7]). We agree with plaintiff that the court erred in granting
the cross motion.

     “The elements of a cause of action for defamation are a false
statement, published without privilege or authorization to a third
                                 -2-                           476
                                                         CA 14-01909

party, constituting fault as judged by, at a minimum, a negligence
standard, and it must either cause special harm or constitute
defamation per se” (D’Amico v Correctional Med. Care, Inc., 120 AD3d
956, 962 [internal quotation marks omitted]), and we conclude that the
complaint sufficiently alleges those elements and, thus, states a
viable cause of action. We further conclude, contrary to defendant’s
contention, that the “particular words complained of” were
sufficiently set forth in the complaint as required by CPLR 3016 (a)
and, in any event, plaintiff attached to the complaint the full
Niagara Falls Reporter article containing the alleged defamatory
statements (see D’Amico, 120 AD3d at 963; cf. Massa Constr., Inc. v
George M. Bunk, P.E., P.C., 68 AD3d 1725, 1725). Defendant contends
that, because he did not participate in the drafting of the Niagara
Falls Reporter article, he cannot be held liable for defamation and,
thus, the court properly granted his cross motion. That contention is
without merit. It is well established that “[a]nyone giving a
statement to a representative of a newspaper authorizing or intending
its publication is responsible for any damage caused by the
publication” (Campo v Paar, 18 AD2d 364, 368).

     Defendant further contends that because the first alleged
defamatory statement is not reasonably susceptible of a defamatory
connotation, the court properly granted the cross motion with respect
to that statement. We reject that contention. “In determining the
sufficiency of a defamation pleading, we [must] consider ‘whether the
contested statements are reasonably susceptible of a defamatory
connotation’ ” (Davis v Boeheim, 24 NY3d 262, 268), as well as “give
the disputed language a fair reading in the context of the publication
as a whole” (Armstrong v Simon & Schuster, 85 NY2d 373, 380).
Defendant points out that the complaint does not allege that he used
the term “rigging,” but we conclude that such is inconsequential
inasmuch as there is a basis “from which the ordinary reader could
draw an inference” from the publication as a whole that defendant was
accusing plaintiff of manipulating the compaction test to achieve a
certain result (James v Gannett Co., 40 NY2d 415, 420).

     We reject defendant’s further contention that the second alleged
defamatory statement was not directed at plaintiff, but only at third-
party defendant Anthony Milone, plaintiff’s chief engineer and, thus,
that the court properly granted the cross motion with respect to that
statement. Viewing the article as a whole, and granting “every
possible favorable inference” to plaintiff (El Jamal v Weil, 116 AD3d
732, 733; see D’Amico, 120 AD3d at 958), we conclude that the
statement referring to “collusion” cannot be isolated from the article
as a whole, and must be read to include both Milone and plaintiff (see
Davis, 24 NY3d at 270).




Entered:   June 12, 2015                        Frances E. Cafarell
                                                Clerk of the Court
