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The claims of three restaurateurs who sued a Columbia University professor for sending them letters falsely claiming to have suffered food poisoning at their establishments have survived the professor’s attempts to have them dismissed. Ruling last month in two cases stemming from Francis J. Flynn’s ill-advised research project, Justice Ira Gammerman dismissed the restaurateurs’ claims that the professor from Columbia University’s Business School libeled them and negligently inflicted emotional distress with his letters to dozens of New York restaurants. Flynn’s letters claimed in each case that he had become seriously ill after celebrating his first anniversary with his wife at the restaurant. The pleadings were too general in most cases to survive, Justice Gammerman said. However, claims by two owners — Jean-Claude Baker of Chez Josephine and Frank Valenza of Two Two Two — were specific enough to advance. They asserted that they had never before received any complaints of food poisoning, and that a single such allegation could put them out of business. Baker stated that he so feared his restaurant’s reputation would be ruined that he went into a depression and sought psychiatric care. Valenza said Flynn’s letter caused him to suffer agitation and heart problems. The judge rejected Flynn’s and Columbia University’s argument that the professor’s single letter sent to each of the restaurants was not sufficiently outrageous to support an emotional distress claim. He said the question of whether the emotional distress experienced by the restaurateurs was sufficiently severe to be compensable was a matter for a jury. The libel claims, on the other hand, were dismissed because each letter had been sent to the addressee only and the alleged defamatory statements had not been further published by the professor. Justice Gammerman declined to accept the plaintiffs’ contention that the highly inflammatory content forced the recipients of the letters to publish their contents to their respective staffs in order to investigate Flynn’s allegations. “[E]ven assuming that the restaurant owners felt they had to disclose to their employees that a complaint of food poisoning had been made, there is no allegation that those disclosures, in fact, resulted in any damage to the reputation of the restaurants or their owners,” he wrote. Even though Baker and Valenza claimed in their affidavits that thousands of dollars worth of food in their kitchens was destroyed in response to Flynn’s complaint, the allegations were “too general to satisfy pleading requirements for special damages,” he added. In his ruling in Chez Josephine v. Columbia University, 101362/02, filed Nov. 26 in Manhattan Supreme Court, Justice Gammerman granted the restaurateurs permission to amend their complaint and noted that the plaintiffs had not asserted claims for negligent misrepresentation or for fraudulent misrepresentation even though it appeared that their complaint might support such causes of action. COMPANION CASE In a motion decided the same day in a companion case, 164 Mulberry Street Corp. d/b/a Da Nico v. Columbia University, 605668/00, Justice Gammerman upheld owner Nicholas Criscitelli’s claim for negligent misrepresentation and for libel per se. Criscitelli claimed that as a result of Flynn’s letter, the New York City Department of Health had investigated his restaurant. “Professor Flynn certainly was aware that his claim of food poisoning would be used for a particular purpose, that is, as the basis for investigating and taking action to prevent other cases of food poisoning. In fact, in his letter, he expressly asked Criscitelli to indicate what sort of responsive action would be taken. Professor Flynn’s actions satisfy the three criteria” cited by the New York Court of Appeals for imposing liability for negligent misrepresentation, the judge said, citing Prudential Ins. Co. of America v. Dewey, Ballantine, Bushby, Palmer & Wood, 80 NY2d 377. Gammerman also declined to dismiss Criscitelli’s claim for punitive damages, but he limited it to a cause of action for negligent misrepresentation. The 24 restaurants and their owners and some employees in Chez Josephine were represented by Joseph M. Lichtenstein of Mineola, N.Y., and Thomas R. Moore. Arnold N. Kriss appeared for Criscitelli in 164 Mulberry Street Corp. Derek J.T. Adler of New York’s Hughes Hubbard & Reed was counsel for Columbia University, and Arthur M. Toback of New York’s Toback, Hyman & Bernstein represented Flynn.

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