Harradine v. Irvine

Order unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Supreme Court erred in failing to grant plaintiffs’ motion for summary judgment to the extent that it sought dismissal of defendant George Irvine’s fifth counterclaim for slander. To support a cause of action for slander, the particular words complained of must be set forth in the complaint (CPLR 3016 [a]). Because defendant’s fifth counterclaim failed to particularize the words complained of, that counterclaim must be dismissed (see, CPLR 3016 [a]; Sparka Travel v Hamza, 182 AD2d 1067). It was also error for Supreme Court to deny defendant’s motion to amend the answer to assert a ninth counterclaim and for additional discovery concerning plaintiffs’ sales tax returns and Marine Midland Bank account records. Where, as here, the record fails to establish prejudice or surprise to the opposing party, leave to amend should be freely granted (see, CPLR 3025 [b]; Agri Fin. v Senter, 105 AD2d 560). Additionally, because the discovery sought by defendant was narrowly focused and relevant to the issues raised in his counterclaims, the motion to compel disclosure should have been granted (see generally, CPLR 3101 [a]; Allen v Crowell-Collier Publ. Co., 21 NY2d 403, 406). Consequently, we modify Supreme Court’s order by granting plaintiffs’ motion for summary judgment to the extent that it sought dismissal of defendant’s fifth counterclaim. We further modify the order by granting defendant’s motion to amend the answer to assert a ninth counterclaim and for additional discovery of plaintiffs’ sales tax returns and Marine Midland Bank account records and by directing plaintiffs to provide defendant copies of those returns and records within 30 days of service of a copy of the order of this Court with notice of 878 entry. (Appeals from Order of Supreme Court, Orleans County, Whelan, J. — Summary Judgment.) Present — Denman, P. J., Green, Balio, Lawton and Boehm, JJ.