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SIGN ON PLAINTIFF’S PROPERTY SAYING THE DEFENDANT “SCREWED US BEWARE” WAS ACTIONABLE DEFAMATION, MOTION TO DISMISS THE DEFAMATION COUNTERCLAIM IN THIS CONTRACT ACTION PROPERLY DENIED (FOURTH DEPT).

The Fourth Department, over a dissent, determined a sign on plaintiff’s property saying “R. KESSLER [the defendant] SCREWED US BEWARE” was actionable defamation. Therefore the defendant’s defamation counterclaim survived a motion to dismiss:

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… Supreme Court properly denied that part of plaintiffs’ motion pursuant to CPLR 3211 (a) (7) seeking to dismiss the defamation counterclaim. Contrary to plaintiffs’ contention, the statement is “reasonably susceptible of a defamatory connotation” … . Furthermore, it is a mixed statement of opinion and fact and thus is actionable inasmuch as it is “an opinion that implies that it is based upon facts which justify the opinion but are unknown to those reading or hearing it’ “… . The answer thus sufficiently states a counterclaim for defamation … . Sallustio v R. Kessler & Assoc., Inc., 2017 NY Slip Op 07792, Fourth Dept 11-9-17

DEFAMATION (SIGN ON PLAINTIFF’S PROPERTY SAYING THE DEFENDANT “SCREWED US BEWARE” WAS ACTIONABLE DEFAMATION, MOTION TO DISMISS THE DEFAMATION COUNTERCLAIM IN THIS CONTRACT ACTION PROPERLY DENIED (FOURTH DEPT))

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TWO DISSENTERS ARGUED THE UNPRESERVED ISSUE, WHICH INVOLVED SETTLED LAW, SHOULD NOT HAVE BEEN CONSIDERED ON APPEAL (FOURTH DEPT).
JURY SHOULD NOT HAVE BEEN INSTRUCTED ON CONSTRUCTIVE POSSESSION, NEW TRIAL ORDERED.
DEFENDANT PLED GUILTY TO ATTEMPTED GANG ASSAULT, WHICH IS A LEGAL IMPOSSIBILITY AT TRIAL; DEFENDANT WAS ENTITLED TO A HEARING ON WHETHER HIS PLEA WAS RENDERED INVOLUNTARY BY COUNSEL’S INACCURATE ADVICE ABOUT THE POSSIBILITY OF CONVICTION; MATTER REMITTED (FOURTH DEPT).
THE MAJORITY CONCLUDED THAT EVEN IF DEFENDANT WAS ILLEGALLY FRISKED AND DETAINED OUTSIDE OF HIS VEHICLE, THE DEPUTY’S SEEING COCAINE ON THE DRIVER’S SEAT PROVIDED PROBABLE CAUSE FOR THE SEARCH OF THE VEHICLE; THE TWO-JUSTICE DISSENT ARGUED THE OBSERVATION OF THE DRUGS WAS A PRODUCT OF THE ILLEGAL FRISK AND DETENTION OF THE DEFENDANT (FOURTH DEPT). ​
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