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STATEMENT MADE BY BANK EMPLOYEE TO THE EFFECT THE BANK WAS CLOSING THE ACCOUNT BECAUSE OF CONCERNS ABOUT MONEY LAUNDERING WAS NON-ACTIONABLE OPINION, THE BANK’S MOTION FOR SUMMARY JUDGMENT IN THIS DEFAMATION CASE SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court in this defamation action, determined that defendant-bank’s (Capital One’s) motion for summary judgment should have been granted. The statement at issue, made by a bank employee named Mukhi,  was deemed to be non-actionable opinion:

The plaintiff is a shareholder of a nursing home business, Parkview Care and Rehabilitation Center, Inc. (hereinafter Parkview), that maintained a bank account at the defendant, Capital One … . Ann Gottlieb, who provided administrative and back-office services to Parkview, received a letter from Capital One indicating that Parkview’s account would soon be closed. When Gottlieb contacted Capital One about the closure, Sanjay Mukhi, a Capital One employee, told her that if Parkview removed the plaintiff as a signatory on the bank account, the account would not be closed. … The complaint alleges that Mukhi stated to Gottlieb that the issue was one of corporate compliance and that, as to “anyone who was a signatory on an account with Western Union or a pawn shop or check cashing business, they [Capital One] did not know who they were dealing with and [the plaintiff] was working with a check cashing business and they [Capital One] were therefore concerned that [the plaintiff] was engaged in money laundering.” * * *

The allegedly defamatory statement was made in the context of Mukhi’s explanation for the closure of Parkview’s account due to a corporate compliance issue. The overall content of the communication suggested that Capital One would be “concerned” about money laundering whenever “anyone” was a signatory on an account with a check cashing business, not that Capital One was actually accusing the plaintiff of this crime. Based upon the content of the communication and the overall context in which it was made, the average listener would take the statement to be one of opinion … .

Moreover, contrary to the plaintiff’s contention, the allegedly defamatory statement was not one of actionable mixed opinion. Instead, it was “a statement of opinion which is accompanied by a recitation of the facts upon which it is based” … . There was no implication that Mukhi knew ” certain facts, unknown to [the] audience, which support [the speaker’s] opinion and are detrimental to the person’ being discussed” … . Landa v Capital One Bank (USA), N.A., 2019 NY Slip Op 03779, Second Dept 5-15-19

 

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