On August 4, 2022, the Fourth Department issued a decision in Fika Midwifery PLLC v. Independent Health Assn., Inc., 2022 NY Slip Op. 04876, upholding claims for defamation of a business, explaining:
The second cause of action is for defamation, the elements of which are a false statement, published without privilege or authorization to a third party, constituting fault as judged by, at a minimum, a negligence standard, and it must either cause special harm or constitute defamation per se. A plaintiff in a defamation action must allege that he or she suffered special damages—the loss of something having economic or pecuniary value, unless the defamatory statement falls within one of the four per se exceptions, which consist of statements (i) charging plaintiff with a serious crime; (ii) that tend to injure another in his or her trade, business or profession; (iii) that plaintiff has a loathsome disease; or (iv) imputing unchastity to a woman. In addition, a plaintiff must set forth in the complaint the particular words complained of, as required by CPLR 3016 (a), and must state the time, place, and manner of the allegedly false statements and to whom such statements were made.
Where, as here, a plaintiff alleges that the defamatory statements were made by the employees of a defendant, the employer may be held liable under a theory of respondeat superior for the intentional torts of its employees when done within the scope of employment. An act is considered to be within the scope of employment if it is performed while the employee is engaged generally in the business of his [or her] employer, or if his or her act may be reasonably said to be necessary or incidental to such employment. The issue whether an employee is acting within the scope of his or her employment is ordinarily for jury resolution.
Here, plaintiffs specified the words that were allegedly defamatory and generally identified the time, place, and manner of those statements as well as to whom those statements were made. Some of the alleged defamatory statements could be interpreted as charging plaintiffs with a serious crime and, at the very least, tended to injure them in their trade or profession. Plaintiffs further alleged that the challenged statements were false and defamatory; were made without privilege and with actual knowledge that they were false; and were made with actual malice and with a wrongful and willful intent to injure plaintiffs’ professional reputation.
Even if the complaint does not specifically state that the employees were acting on behalf of defendant at the moment of their statements, we are to afford the complaint every possible favorable inference, and we can reasonably infer here that the employees’ comments and actions were incidental to their employment. We thus conclude that the complaint alleges facts sufficient to state a cause of action for defamation.
(Internal quotations and citations omitted).