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An appeals court Tuesday declined to dismiss lawsuits against Columbia University and one of its professors, who rattled several well-regarded restaurants by falsely claiming he had been poisoned by their food. The Appellate Division, 1st Department, did, however, rule in 164 Mulberry Street Corp. v. Columbia University, 716, that the university could not be sued for punitive damages since the intentions of its professor, Francis J. Flynn, were not malicious. Flynn had made the charges as part of a research project to see how the restaurants would respond to customer complaints. Flynn, who at the time had been a professor for less than a year, sent fabricated incidents alleging food poisoning to dozens of restaurants. He also allegedly repeated the false claims in at least one telephone conversation, with the mother of one of the restaurateurs. Flynn was looking for a reaction, and the restaurants obliged: They scoured their records in search of his visit and questioned their staff, and when they discovered that the allegations were false, they sued Flynn and Columbia. The university, for its part, sent a letter to the restaurateurs from the dean of its Business School, apologizing for Flynn’s conduct and calling it “an egregious error in judgment by a junior faculty member.” Frank Valenza, the owner of Two Two Two on the Upper West Side, said he suffered heart problems as a result of the allegations against his restaurant. In all, the restaurants said they feared the allegations could ruin their businesses. They sued under misrepresentation, emotional distress and libel theories. In November 2002, Manhattan Supreme Court Justice Ira Gammerman dismissed many of the claims, but allowed claims for libel per se, negligent misrepresentation, false misrepresentation, and one claim of intentional infliction of emotional distress. He also sustained a request for punitive damages on the negligent misrepresentation claims. PUNITIVE DAMAGES Tuesday, though, a unanimous panel of the 1st Department found that punitive damages were not warranted in this case. “Notwithstanding [Flynn's] complete failure to foresee the likely consequences of his actions, we must recognize that this was, fundamentally, just a research project even though ill-considered,” Justice Peter Tom wrote for the court. “[Flynn] was seeking to elicit a response, which would then be tabulated in data, rather than to wantonly inflict pain with the intent of injuring the various plaintiffs.” Tom also stressed the gravity of Flynn’s allegations in a profession where one blemish can lead to the quick demise of an entire business. “Once a restaurant’s reputation is tainted it is hard to undo the damage,” the judge wrote. “The possibility of a forced closing of a restaurant could very likely affect the physical and emotional well-being of the restaurateurs involved, especially those who may have invested all their savings and energy into the business.” As an example of the possible consequences that “alleged outrageous conduct directed at unknown targets” can have in a “highly competitive” restaurant business, Justice Tom noted the recent suicide of Bernard Loiseau, a chef in France who shot himself to death after a restaurant guidebook downgraded the rating of his three-star restaurant. Justices Richard T. Andrias, Ernst H. Rosenberger and Milton L. Williams concurred on the ruling. The restaurants were represented by John C. Theodorellis of the Law Offices of Arnold N. Kriss, and Elliot L. Lewis of the Law Office of Joseph M. Lichtenstein. George A. Davidson of Hughes Hubbard represented Columbia University.

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