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Kotok Building v. Charvine Co.

Decided: December 17, 1981.

KOTOK BUILDING, A NEW JERSEY CORPORATION, PLAINTIFF,
v.
THE CHARVINE COMPANY AND CHARLES CURCIO, DEFENDANTS



Edward S. Miller, J.s.c.

Miller

This case presents the question of the degree of particularity with which an action for libel or slander must be pleaded and whether this requirement has been relaxed by our modern practice. It necessarily requires an exploration into the issue of "fact pleading" versus "notice pleading."

The specific question presented is whether plaintiff, defendant in a counterclaim, is entitled to summary judgment on paragraph four of the second count of the counterclaim, which alleges:

Plaintiff has falsely and maliciously, and for the purpose of injuring the defendant/counterclaimant in his good name, fame and credit both as an

individual and as a businessman, spoke [sic] of and concerning the said counterclaimant, in slanderous and vile names, and has defamed the reputation and name of said counterclaimant.

Plaintiff moves for summary judgment, principally upon the failure to recite the details of the alleged slander and its failure to indicate what damages plaintiff suffered as to its business reputation. Defendant argues that summary judgment is precluded by the existence of factual issues as to the circumstances of the alleged slander and as to the magnitude of counterclaimant's business losses.

The second count of the counterclaim fails to recite the allegedly defamatory words, the circumstances in which they were uttered, whether a third party heard them, and what damaging effect their utterance had upon defendant-counterclaimant's business or professional reputation. It is, in short, wholly conclusory. It is, therefore, fatally defective.

Regardless of the form of pleading, actions in defamation have traditionally been treated as sui generis. The common law pleading requirements of innuendo, while sometimes carried to an extreme degree, cf. McCuen adsm. Ludlum , 17 N.J.L. 12 (Sup.Ct.1839), require sufficient specificity to delineate the facts of the wrong complained of so that the case may be properly defended. Modern pleadings still require this, National Bowl-O-Mat Corp. v. Brunswick Corp. , 264 F. Supp. 221, 226 (D.N.J.1967), Prosser, Torts (4 ed.), c. 19, ยง 111 at 746 et seq. , a defamation case.

With the advent of our new and improved court system on September 15, 1948 the Supreme Court determined to overhaul and refurbish the rules of practice and procedure in this state. Following an intensive and dynamic effort by a group of task forces, what is now our current set of rules was adopted. Basically they follow the Federal Rules of Civil Procedure then in existence, with certain modifications, some because of the fact that state courts operate in some areas while the federal courts do not and some simply because of a difference in

philosophy between the Supreme Court and the framers of the federal rules.

One of the significant differences between the federal and state rules is in the philosophy of pleading. Federal Rule 8(a) requires that a pleading which sets forth a claim for relief should contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Rule 8(a) was never adopted in New Jersey. In drafting R.R. 4:8-1, the precursor to the current R. 4:5-2, the New Jersey Supreme Court used as its model, not the Federal Rules of Civil Procedure , but rather the Practice Act of 1912, Schnitzer and Wildstein , 2 N.J. Rules Service , Annotations and ...


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