Calendar Date: May 2, 2018Before: Egan Jr., J.P., Lynch, Clark, Mulvey and Rumsey, JJ.__________Miller, Mannix, Schachner & Hafner, LLC, Round Lake (ThomasW. Peterson of counsel), for appellant.Murphy Burns LLP, Loudonville (Stephen M. Groudine ofcounsel), for respondents.__________Egan Jr., J.P.Appeal from an order of the Supreme Court (McGrath, J.),entered February 1, 2017 in Rensselaer County, which granted amotion by defendants Catherine M. Goyer, Michael Crandall andRichard Ungaro to dismiss the complaint against them.In February 2015, plaintiff, then the Town Supervisor ofdefendant Town of Grafton (hereinafter the Town), was involved ina physical altercation with defendant Catherine M. Goyer, theTown’s Deputy Clerk, as she attempted to enter the conferenceroom of the Town Hall following a Town Board meeting. Thefollowing day, Goyer filed a workplace violence incident reportand subsequently reported the incident to State Police. As a-2- 525861result, plaintiff was charged with harassment in the seconddegree. Following a trial, plaintiff was acquitted of the chargeand, thereafter, he commenced this action against defendantsasserting causes of action for, among other things, maliciousprosecution and defamation. The Town answered; Goyer anddefendants Michael Crandall and Richard Ungaro (hereinaftercollectively referred to as defendants) filed a pre-answer motionto dismiss the complaint for failure to state a cause of action.1Supreme Court granted defendants’ motion and dismissed thecomplaint against them, holding, in relevant part, thatplaintiff’s malicious prosecution claim against Goyer failedbecause he did not plead sufficient facts demonstrating heractive involvement in the prosecution. Supreme Court also heldthat the defamation claim against Goyer similarly failed becauseit did not adequately identify Goyer’s purportedly slanderousstatements, sufficiently plead any amount of special damages orshow that her alleged statements related specifically toplaintiff’s occupation or imputed his involvement in a seriouscrime. Plaintiff now appeals.2When considering a motion to dismiss for failure to state acause of action, “the court must afford the complaint a liberalconstruction, accept as true the allegations contained therein,accord the plaintiff the benefit of every favorable inference anddetermine only whether the facts alleged fit within anycognizable legal theory” (Brown v Government Empls. Ins. Co., 156AD3d 1087, 1088 [2017] [internal quotation marks and citationomitted]; see Vestal v Pontillo, 158 AD3d 1036, 1038 [2018]). Inorder to state a cause of action for malicious prosecution, aplaintiff must allege “(1) the commencement or continuation of acriminal proceeding by the defendant against the plaintiff, (2)the termination of the proceeding in favor of the accused, (3)the absence of probable cause for the criminal proceeding and (4)actual malice” (De Lourdes Torres v Jones, 26 NY3d 742, 760[2016]; see James v Flynn, 132 AD3d 1214, 1215 [2015]). Asrelevant to this appeal, in order to adequately allege that acivilian complainant initiated or commenced a criminalproceeding, a plaintiff must demonstrate “that the complainantplayed an active role in the prosecution, such as giving adviceand encouragement or importuning the authorities to act” (Barrettv Watkins, 82 AD3d 1569, 1572 [2011] [internal quotation marks,brackets and citation omitted]; accord Place v Ciccotelli, 121AD3d 1378, 1379 [2014]).Plaintiff’s complaint alleges that Goyer provided a “falseand fraudulent” written criminal information and supportingdeposition to State Police when she averred that plaintiff hadsubjected her to unwanted physical contact by, among otherthings, placing “his arm against her chest to prevent her fromwalking forward.” Although plaintiff denied that he engaged inthe conduct alleged by Goyer, he was nevertheless charged andprosecuted for harassment in the second degree based on saidallegations. With regard to Goyer’s role in the commencement ofthe criminal action, it is not alleged that Goyer merelyfurnished the details of what she perceived to be criminalconduct and thereafter allowed law enforcement to determine, inits discretion, whether criminal charges were appropriate.Rather, it is alleged that she provided false information to lawenforcement via a sworn supporting deposition and then signed anaccusatory instrument as both the complainant and the allegedvictim, reiterating the same allegedly false allegations.Accepting plaintiff’s allegations as true, as we must, thecomplaint adequately alleges that Goyer “knowingly provided falseinformation to the police” and such allegations are “sufficientto state that the complainant initiated the proceeding by playingan active role in the other party’s arrest and prosecution”(Place v Ciccotelli, 121 AD3d at 1379-1380; see Coscia v Jamal,156 AD3d 861, 863-864 [2017]; Kirchner v County of Niagara, 107AD3d 1620, 1622 [2013]; Brown v Nassau County, 306 AD2d 303, 303[2003]; Ramos v City of New York, 285 AD2d 284, 299-300 [2001]).Accordingly, affording the complaint a liberal construction andproviding plaintiff the benefit of every favorable inference, weconclude that Supreme Court should not have dismissed plaintiff’sclaim for malicious prosecution against Goyer (see Place vCiccotelli, 121 AD3d at 1379-1380; Kirchner v County of Niagara,107 AD3d at 1622; compare Barrett v Watkins, 82 AD3d at 1572;Krzyzak v Schaefer, 52 AD3d 979, 980 [2008]).We likewise find that Supreme Court should not havedismissed the defamation cause of action against Goyer.Generally speaking, “defamation is not actionable without ashowing of special damages, which ‘contemplate the loss ofsomething having economic or pecuniary value’” (Matter of Barra vCounty of Tompkins, 125 AD3d 1237, 1238 [2015], quoting Libermanv Gelstein, 80 NY2d 429, 434-435 [1992]; accord Allen v CH EnergyGroup, Inc., 58 AD3d 1102, 1103 [2009]). Although plaintiff’sconclusory reference to “special harm” and the generalizedfigures cited with respect to the damages allegedly sustainedfailed to plead special damages with sufficient particularity(see Boyle v Stiefel Labs., 204 AD2d 872, 875 [1994], lv denied84 NY2d 803 [1994]), an exception to this general rule existswhere the statements at issue tend “to injure another in his orher trade, business or profession” (Liberman v Gelstein, 80 NY2dat 435; see Geraci v Probst, 15 NY3d 336, 344 [2010]; Golub vEnquirer/Star Group, 89 NY2d 1074, 1076 [1997]; Matter of Barra vCounty of Tompkins, 125 AD3d at 1238).In addition to the criminal information and supportingdeposition provided to the State Police, the complaint allegesthat Goyer filed an equally “false and fraudulent” workplaceviolence incident report with respect to the subject altercation.The incident report — which was attached to and incorporated intothe complaint — indicates that, on the evening in question, Goyerattempted to enter a conference room at the Town Hall whenplaintiff stepped to the side and blocked her from entering.Goyer indicated that, when she attempted to then go around him,plaintiff “put his arm up in front of [her] to block [her]” and“reached in front of [her,] grabbed [certain office supplies and]tried to pull them out of [her] hand” while screaming “[g]et out”and “[y]ou can’t come in here.” The statements contained in theinformation, supporting deposition and incident report werethereafter “published and/or republished to the press.” Inasmuchas these statements provide allegations of fact indicating thatplaintiff subjected Goyer to unwanted physical contact while atthe Town Hall, on the night of a Town Board meeting, at a timewhen plaintiff was acting in his official capacity as TownSupervisor, they provide “more than a general reflection upon[plaintiff]‘s character or qualities” (Golub v Enquirer/StarGroup, 89 NY2d at 1076). Indeed, Goyer alleged gross improperworkplace conduct that called into question plaintiff’s abilityand fitness to continue serving in the elected position of TownSupervisor. Thus, under the circumstances, such statements couldbe considered defamation per se and, therefore, plaintiffadequately stated a cause of action for defamation that shouldhave survived the motion to dismiss. The parties’ remainingcontentions, to the extent not specifically addressed herein, areeither without merit or have been rendered academic by ourdetermination.Lynch, Clark, Mulvey and Rumsey, JJ., concur.ORDERED that the order is modified, on the law, withoutcosts, by reversing so much thereof as granted defendants’ motionto dismiss the malicious prosecution and defamation causes ofaction against defendant Catherine M. Goyer; motion denied tothat extent and matter remitted to the Supreme Court to permitsaid defendant to serve an answer within 20 days of the date ofthis Court’s decision; and, as so modified, affirmed.ENTER:Robert D. MaybergerClerk of the Court
