Opinion
November 21, 2000.
Appeal from order, Supreme Court, New York County (Martin Evans, J.H.O.), entered February 1, 1999, which directed judgment in favor of the individual defendant-respondent in the amount of $50,000 in punitive damages on his counterclaim for slander, and ordered that plaintiff pay sanctions pursuant to CPLR 8303-a to defendants-respondents in the amount of $10,000 each, for the third and fourth causes of action, the fifth and sixth causes of action, the seventh cause of action, the eleventh cause of action and the thirteenth cause of action, for a total of $50,000, deemed an appeal from the judgment, same court and Judicial Hearing Officer, entered March 17, 1999, for $50,665.75 in favor of the individual defendant-respondent on his counterclaim and $51,655.35 in favor of defendants-respondents on the sanction award, and as so considered, said judgment unanimously modified, on the law and the facts, the award to the individual defendant on his counterclaim deleted, and otherwise affirmed, without costs.
J. Edward Meyer, for plaintiffs-appellants.
Pro Se Martin Bressler, for defendants-respondents.
Before: Rosenberger, J.P., Nardelli, Williams, Mazzarelli, Wallach, JJ.
The record supports the Judicial Hearing Officer's conclusion that plaintiffs' decedent, the creator of the iconographic "Seven Year Itch" image of Marilyn Monroe, in a billowing white skirt, commenced and maintained this action (since assumed by the representatives of his estate) against his former intellectual property litigation counsel "in bad faith without any reasonable basis in law or fact" and without any "good faith argument for an extension, modification or reversal of existing law" (see, CPLR 8303-a[c][ii]), and that he knew or should have known (see, McGill v. Parker, 179 A.D.2d 98, 111), prior to pleading his causes of action, that there was no reasonable basis for them (see, Perlbinder v. Jakubovitz, 239 A.D.2d 294, 295). In light of that determination, the imposition of sanctions was proper (see,Nyitray v. New York Ath. Club, 274 A.D.2d 326, 712 N.Y.S.2d 89). Further, in view of the unique facts of this case, we find the amount of sanctions, and the Judicial Hearing Officer's exercise of discretion in imposing sanctions, appropriate (see, Gross v. Kurk, 250 A.D.2d 810, 811, lv denied, 92 N.Y.2d 811).
As to the individual defendant's counterclaim, the false charge of larceny was slanderous per se (see, Liberman v. Gelstein, 80 N.Y.2d 429, 435), and defendant, while not required to show special damages, was entitled to seek punitive damages (see, Gatz v. Otis Ford, 274 A.D.2d 449, 450, 711 N.Y.S.2d 467, 468). Acts of malice, apart from the instance of slander on which the action was brought, were probative of whether or not plaintiff bore defendant common-law malice, which is required to justify punitive damages (see, Prozeralik v. Capital Cities Communications, 82 N.Y.2d 466, 479). All the same, the purpose of punitive damages on a slander claim should be to punish the slander itself, since there must be a reasonable relationship between punitive damages and actual damages (see, e.g., McIntyre v. Manhattan Ford, Lincoln-Mercury, 256 A.D.2d 269, 270-71, appeal dismissed, 93 N.Y.2d 919, lv denied, 94 N.Y.2d 753). Here, it is clear that the punitive damages award was intended to punish not merely the act of slander that was the gravamen of the counterclaim, but a broad range of malicious behavior, including numerous verbal statements that were plainly "loose, figurative or hyperbolic" non-actionable expressions of opinion (see, Miss American Petite, Inc. v. Fox Broadcasting Co., 262 A.D.2d 33, 34). In our view, the punitive damages award and the award of sanctions in an identical amount constitute a double recovery. For that reason, we find that the decision to award punitive damages on the counterclaim was an improvident exercise of the Judicial Hearing Officer's discretion (see, Loughry v. Lincoln First Bank, 67 N.Y.2d 369, 378), and we exercise our discretion on review of a non-jury award to render an independent judgment as warranted by the facts in deleting it (see, e.g.,Allen v. Black, 275 A.D.2d 207, 712 N.Y.S.2d 487.
We have considered plaintiffs' remaining appellate arguments and find them unavailing.
THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.