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PLAINTIFF DEMONSTRATED STATEMENTS MADE BY DEFENDANT TO MANAGEMENT COULD BE INTERPRETED TO CLAIM THAT PLAINTIFF FILED A FALSE TAX RETURN USING DEFENDANT’S SOCIAL SECURITY NUMBER AND THAT PLAINTIFF STOLE FUNDS FROM THE COMPANY, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN THIS DEFAMATION ACTION SHOULD HAVE BEEN GRANTED, DECISION INCLUDES A SUBSTANTIVE DISCUSSION OF THE ELEMENTS OF DEFAMATION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the statements made by defendant about plaintiff constituted actionable defamation and plaintiff’s motion for summary judgment should have been granted. The decision includes substantive explanations of the elements of defamation which are too detailed to fairly summarize here. In essence, defendant made statements which could be fairly interpreted to claim that plaintiff filed a false tax return using defendant’s social security number and plaintiff stole money from the company they both worked for. The statements were made in emails and in phone calls to the payroll administrator, the president and general manager of the company:

The precise meaning of the defendant’s statements that “someone tried to file a 2014 tax return using [her] name, [her] info and . . . [her social security number]” and that she “[had] reason to believe [the plaintiff] is responsible for this attack on [her] credit, [her] finances and [her] LIFE!” is that the plaintiff used the defendant’s social security number to file a fraudulent tax return … . The statements can readily be proven true or false and, given the tone and overall context in which the statements were made, signaled to the average reader or listener that the defendant was conveying facts about the plaintiff … . This includes the defendant’s statement that she had “learned of the story of [the plaintiff] stealing funds, for her deposit from [Skyline’s] accounts to purchase her condo in 2013.” Alternatively, the challenged statements are mixed opinion, which is actionable, as a reasonable reader may infer that the defendant had knowledge of facts, unknown to the audience, which support the assertions she made ,,, . The plaintiff also established, prima facie, that the statements were defamatory per se since they charged the plaintiff with the commission of a serious crime and would tend to injure the plaintiff in her profession by imputing “fraud, dishonesty, misconduct, or unfitness in conducting [her] profession” … . Kasavana v Vela, 2019 NY Slip Op 03777, Second Dept 5-15-19

 

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ALTHOUGH NO ESPINAL FACTORS WERE ALLEGED BY PLAINTIFF IN THIS SLIP AND FALL... PLAINTIFF’S MOTION TO SET ASIDE THE JURY VERDICT IN THE INTEREST OF JUSTICE...