The Second Department, reversing Supreme Court, determined the defendant residential cooperative members and board were entitled to summary judgment in this defamation action. E-mails concerning plaintiff’s behavior and performance on the board were nonactionable expressions of opinion. A flyer indicating which shareholders were alleged to be in arrears was protected by the “common interest” qualified privilege:
“Expressions of an opinion, false or not, libelous or not, are constitutionally protected and may not be the subject of private damage actions'” … . “The issue of distinguishing between actionable fact and non-actionable opinion is a question of law for the court” … . Here, the statements contained in the two emails alleged to be defamatory amounted to subjective characterizations of the plaintiff’s behavior and an evaluation of her performance as a member of the Board, and thus constituted non-actionable expressions of opinion … . Accordingly, the email statements cannot serve as a basis for the imposition of liability.
The defendants further demonstrated that the challenged statements set forth in the “Shareholders In Arrears” flyers posted in the building lobby, which listed the apartment numbers of shareholders who allegedly owed arrears and the amount of those arrears, were protected by the qualified common-interest privilege … . Although a qualified privilege may be lost by proof that the defendant acted out of malice …, in opposition to the defendants’ motion, the plaintiff failed to raise a triable issue of fact as to whether the challenged statements in the flyers were motivated solely by malice … . Galanova v Safir, 2016 NY Slip Op 02617, 2nd Dept 4-6-16
DEFAMATION (E-MAILS CONSTITUTED NONACTIONABLE OPINION AND POSTED FLYERS PROTECTED BY COMMON INTEREST PRIVILEGE)/PRIVILEGE (DEFAMATION, POSTED FLYERS PROTECTED BY COMMON INTEREST PRIVILEGE)/COMMON INTEREST PRIVILEGE (DEFAMATION, POSTED FLYERS PROTECTED BY COMMON INTEREST PRIVILEGE)