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STATEMENTS ATTRIBUTED TO DEFENDANT CONSTITUTED NONACTIONABLE OPINION; TO THE EXTENT ANY OF THE STATEMENTS COULD BE REGARDED AS FACT RATHER THAN OPINION, THE STATEMENTS WERE PROTECTED BY QUALIFIED PRIVILEGE; PLAINTIFF DID NOT DEMONSTRATE THE STATEMENTS WERE MADE WITH ACTUAL MALICE (FIRST DEPT). ​

The First Department, in a full-fledged opinion by Justice Singh, determined the statements attributed to defendant New York State Assemblyman Jeffrey Dinowitz constituted nonactionable opinion and plaintiff (Verdi) did not demonstrate Dinowitz acted with actual malice. The facts are far too detailed to summarize here:

Given the history of the hyperbolic and public finger-pointing between the parties, a reasonable reader would conclude that Dinowitz’s statements were opinion and merely “the product of passionate advocacy,” especially considering that he was in the midst of litigation involving accusations of him manipulating student registration to advance a racist agenda … . Although Dinowitz’s status as an assemblyman may lead an average reader to interpret his statements as those of fact known to him through his involvement with the school and the community … , “[e]ven apparent statements of fact may assume the character of statements of opinion, and thus be privileged, when made in . . . circumstances in which an ‘audience may anticipate [the use] of epithets, fiery rhetoric or hyperbole’ ” … . * * *

Even if some of Dinowitz’s statements could be regarded as fact rather than opinion, we agree with the motion court’s finding that Dinowitz’s statements may be entitled to a qualified privilege, as an overcrowded public school is a matter of public concern … . We also agree with the motion court’s determination that the “actual malice” standard should be applied in the evaluation of whether Dinowitz’s conduct went beyond that protected by the qualified privilege … . Verdi v Dinowitz, 2024 NY Slip Op 04287, First Dept 8-22-24

Practice Point: The statements attributed to defendant in this defamation action were nonactionable opinion, criteria explained.​

Practice Point: To the extent any of the statements may be regarded as fact, as opposed to opinion, they were protected by qualified privilege because there was no showing the statements were made with actual malice.

 

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