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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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THERE WAS NO EVIDENCE LINKING DEFENDANT TO A BURGLARY EXCEPT A PARTIAL FINGERPRINT FOUND AT THE SCENE WHICH ONLY MATCHED 15 TO 22.5% OF THE CHARACTERISTICS OF DEFENDANT’S INKED PRINT; THE BURGLARY CONVICTION WAS AGAINST THE WEIGHT OF THE EVIDENCE (FOURTH DEPT). ​
DENIAL OF FATHER’S PETITION FOR CUSTODY WAS NOT SUPPORTED BY THE EVIDENCE (FOURTH DEPT).
JUDGE SHOULD NOT HAVE, SUA SPONTE, ASSESSED POINTS ON A THEORY NOT RAISED BY THE BOARD OF EXAMINERS OF SEX OFFENDERS OR THE PEOPLE; DEFENDANT WAS THEREBY DEPRIVED OF HIS RIGHT TO DUE PROCESS OF LAW (FOURTH DEPT).
REVERSIBLE ERROR TO ALLOW DEFENDANT TO SELECT JUROR, A SELECTION WITH WHICH DEFENSE COUNSEL APPARENTLY DISAGREED.
FAMILY COURT DID NOT MAKE THE REQUIRED FINDINGS OF FACT IN THIS FAMILY OFFENSE, CUSTODY AND VISITATION CASE, MATTER REMITTED (FOURTH DEPT). ​
FAILURE TO READ JURY NOTE INTO RECORD REQUIRED REVERSAL.
AFTER A WEIGHT OF THE EVIDENCE ANALYSIS, THE COURT CONCLUDED THE PROOF DID NOT DEMONSTRATE BEYOND A REASONABLE DOUBT THAT DEFENDANT SHARED THE INTENT OF HIS SON, WHO STABBED THE VICTIM EIGHT TIMES.

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