In filing his note of issue below the plaintiff designated his second cause of action as a "Prima facie tort of business interference." In denying the defendants' motion to dismiss such cause as barred by the one-year Statute of Limitations applicable to defamation actions, Special Term gave its sanction to this designation, holding that the action sounded in prima facie tort and that the six-year statute applied.
On this appeal the plaintiff while withdrawing the denomination "prima facie tort" to the second cause of action, and although decrying the constrictive effect of labels in the classification of tort actions, now characterizes the defendants' conduct as injurious falsehood or interference with economic relations.
The issue of course is not the name that plaintiff may give to his second cause of action but the ascertainment of the Statute of Limitations applicable to its allegations. "In applying a Statute of Limitations * * * `We look for the reality, and the essence of the action and not its mere name.'" (Morrison v. National Broadcasting Co., 19 N.Y.2d 453, 459.) The second cause of action (after repeating the allegations of the first cause of action for breach of contract) charges that "defendants willfully and maliciously issued, published and widely circulated a bulletin * * * designed intentionally to discredit and harm the plaintiff with each and every said person" and that "As a result of the aforesaid conduct of the defendants, and each of them, plaintiff has suffered great loss and expense * * * his [plaintiff's] good name, business and credit have been adversely affected and seriously impaired * * * and he has suffered * * * impairment of health". This cause of action sounds in defamation. "Defamation is defined in terms of the injury, damage to reputation, and not in terms of the manner in which the injury is accomplished." (Morrison v. National Broadcasting Co., supra, p. 458.) Plaintiff may not circumvent the one-year limitation period applicable to defamation actions by misdescribing the tort as injurious falsehood or interference with economic relations. "A person possessing a cause of action in libel or slander may not avoid the statute of limitations
The order should be reversed, on the law, with costs and disbursements, and defendants' motion for summary judgment dismissing the second cause of action granted.
This motion to dismiss, based on the Statute of Limitations, has been brought forward nine years after the service of a summons. The majority would upset Special Term and grant the motion on the broad acceptance of the complaint as one based on defamation. I differ and would find that the complaint has all the hallmarks of a "prima facie" tort, in this instance, the intentional interference with business relationships, the fracturing of contractual rights, recklessly done, with no regard for consequences, and the production of resultant economic loss. This is the crux of the second cause of action; not libel and not slander.
The complaint before us alleges that the defendant maliciously and selfishly published and circulated a maleficent bulletin, intentionally designed to harm and discredit him in the eyes of established customers, inducing them to cancel and refuse existing policies, and thus bring about the destruction of a business built up by the long drawn-out labors of 29 years. And damages, as set forth in the Seventeenth and Eighteenth paragraphs are reasonably ascertainable.
All this is a far cry from the Morrison case on which the majority reclines. In that case a fledgling university professor
Thus, finding as I do, that the complaint goes far beyond an allegation that the plaintiff has been personally defamed, I would affirm Special Term and hold that the applicable statute, when this cause accrued, allowed six years in which to sue. (See Civ. Prac. Act, § 48, subd. 3.)
Order entered July 24, 1968, herein appealed from, reversed, on the law, with $50 costs and disbursements, and defendants' motion for summary judgment dismissing the second cause of action granted. The Clerk is directed to enter judgment accordingly.