The Second Department, modifying Supreme Court, in a full-fledged opinion by Justice Chambers, determined certain statements made by defendant Eliot Spitzer (former New York Attorney General) concerning Hank Greenberg (former CEO of AIG) supported defamation causes of action. The opinion went through the long list of statements alleged to be defamatory in the complaint in the context of Spitzer’s motions to dismiss. Many, but not all, of the statements were found actionable and the complaint was deemed to have adequately alleged the actionable statements were made with malice:
This appeal presents an opportunity to discuss in some detail the proper application of CPLR 3211(a)(1) and (7) in the context of an action sounding in defamation. * * *
“Since falsity is a necessary element of a defamation cause of action and only facts’ are capable of being proven false, it follows that only statements alleging facts can properly be the subject of a defamation action'”… .Thus, “[a]n expression of pure opinion is not actionable, . . . no matter how vituperative or unreasonable it may be” … .
“A pure opinion may take one of two forms. It may be a statement of opinion which is accompanied by a recitation of the facts upon which it is based, or it may be an opinion not accompanied by such a factual recitation so long as it does not imply that it is based upon undisclosed facts” … . Conversely, “an opinion that implies that it is based upon facts which justify the opinion but are unknown to those reading or hearing it, is a mixed opinion and is actionable” … .
“Whether a particular statement constitutes an opinion or an objective fact is a question of law” … . “In distinguishing between facts and opinion, the factors the court must consider are (1) whether the specific language has a precise meaning that is readily understood; (2) whether the statements are capable of being proven true or false; and (3) whether the context in which the statement appears signals to readers [or listeners] that the statement is likely to be opinion, not fact” … . “The essential task is to decide whether the words complained of, considered in the context of the entire communication and of the circumstances in which they were spoken or written, may be reasonably understood as implying the assertion of undisclosed facts justifying the opinion” … . Greenberg v Spitzer, 2017 NY Slip Op 06432, Second Dept 9-13-17