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PLAINTIFF DID NOT ELIMINATE QUESTIONS OF FACT ABOUT WHETHER PLAINTIFF’S PUBLIC STATEMENTS CALLING DEFENDANTS CON ARTISTS, SCAMMERS AND THIEVES WERE DEFAMATORY; PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT DISMISSING THE COUNTERCLAIMS ALLEGING DEFAMATION PROPERLY DENIED; THE LAW OF DEFAMATION CONCISELY AND COMPLETELY EXPLAINED (SECOND DEPT).

The Second Department determined defendants’ counterclaims alleging defamation properly survived plaintiff’s motion for summary judgment. The law of defamation is concisely and completely explained in the decision:

… [D]uring a Sabbath gathering at the parties’ synagogue, the plaintiff allegedly stood up at the center podium, asked for the congregants’ attention, and, pointing to the Nissanis, stated that he wanted “to make an announcement for everyone to know” that “[w]e have in our synagogue two NOCHLIM,” which the Nissanis claim is a Hebrew word for “scammers or con artists.” The plaintiff allegedly continued: “They are David Nissani and Ronen Nissani,” and “if they ask you to do any business with them, or to invest with them, then you definitely should not.” After services had concluded, while the Rabbi was admonishing the plaintiff for bringing business affairs to the synagogue, the plaintiff allegedly stated in the presence of the Rabbi and the synagogue’s president, “But these people are Nochlim and Ganavim,” a Hebrew word for “thieves.” As Ronen Nissani began to walk home from the synagogue, the plaintiff allegedly shouted at him in front of the synagogue in the presence of others that “I’m going to be on your ass until I get my money! I’m not going to leave you alone! You will see! You are thieves!” * * *

The plaintiff failed to establish, prima facie, that these statements did not constitute false assertions of fact … . Viewed in the context in which the allegedly defamatory statements were made, a reasonable listener would likely understand those statements to imply that the Nissanis swindled the plaintiff out of money in connection with their business … . 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 listener that the plaintiff was conveying facts about the Nissanis … .

Even if the challenged statements had not conveyed assertations of fact, they would nonetheless be actionable as mixed opinion, since a reasonable listener would have inferred that the plaintiff had knowledge of facts, unknown to the audience, which supported the assertions he made … . Levy v Nissani, 2020 NY Slip Op 00113, Second Dept 1-8-20

 

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