THE LETTER CRITICIZING THE FORMER DEAN OF THE FASHION INSTITUTE OF TECHNOLOGY WAS NOT DEFAMATORY ON ITS FACE, BUT THE COMPLAINT STATED A CAUSE OF ACTION FOR DEFAMATION BY IMPLICATION (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined plaintiff’s defamation-by-implication complaint should not have been dismissed:

… [P]laintiff, the former Dean of Graduate Studies at defendant Fashion Institute of Technology (FIT), was placed on leave following criticisms over culturally insensitive accessories presented in an FIT-sponsored alumni fashion show. Plaintiff alleges that a letter published by defendants contained defamatory remarks on its face, implied, or both, and impugned plaintiff’s reputation…. .

… [T]he letter implies that plaintiff was responsible for the show and failed to recognize the accessories as insensitive, even though she took no part in managing, directing, or approving the show. The complaint contains references to publications from other sources that interpret the letter as placing the blame on plaintiff and deeming her leadership inexcusable and irresponsible … . On a CPLR 3211 (a)(7) motion to dismiss, denial is warranted if taking the words used both in their ordinary meaning and in context make them susceptible to a defamatory connotation as occurs in this case … . The letter also contains statements of mixed opinion, “While a pure opinion cannot be the subject of a defamation claim, an opinion that ‘implies that it is based upon facts which justify the opinion but are unknown to those reading or hearing it, . . . is a ‘mixed opinion’ and is actionable'” … .

The letter omitted plaintiff’s nonparticipation in the production, direction, and management of the fashion show; her unawareness as to the accessories the designers planned to present; the FIT policy precluding academic deans from evaluating, censoring, or approving student and alumni work; and plaintiff’s prompt response to student concerns and her proactive approach to address those concerns; and implied that plaintiff was responsible for the show, was aware of the accessories, could approve them, and failed to respond to student concerns. Davis v Brown, 2022 NY Slip Op 07147, First Dept 12-15-22

Practice Point: Here the writing was not defamatory on its face. But the complaint stated a cause of action for defamation by implication. The letter included actionable statements of “mixed opinion” and omitted important facts which relieved plaintiff of responsibility for the claimed misconduct.