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TWO STATEMENTS FOUND TO BE NONACTIONABLE EXPRESSIONS OF OPINION IN THIS DEFAMATION ACTION, PLAINTIFFS HAVE NO PROOF BURDEN ON A MOTION TO DISMISS, DEFENDANTS NOT SHIELDED BY THE COMMUNICATIONS DECENCY ACT (SECOND DEPT).

The Second Department, modifying Supreme Court, determined two statements alleged by the plaintiffs to have been defamatory were nonactionable opinion (other defamatory statements alleged in the complaint properly survived the motion to dismiss). The court noted that plaintiffs have no burden to prove the allegations in a complaint in response to a motion to dismiss, and further found that the Communications Decency Act did not shield the defendants from liability:

Here, the allegedly defamatory statements set forth in paragraphs 53 and 55 of the complaint—which asserted, among other things, that [the defendant president of the cooperative] was “attempting insult of American laws & freedom” and was attempting to “destroy Trump Village 4 and sell our buildings to the highest bidder after we are bankrupt”—constituted nonactionable expressions of opinion. The statements … were not easily understandable, were largely incapable of being proven true or false, and, in context, signaled to the average reader that the statements were opinion, not fact. …

We reject the defendants’ contention that the allegations of defamation fail to state a cause of action because their statements were protected by qualified privileges, and insufficient facts were alleged to show that they spoke with malice necessary to defeat those privileges … . Since “the burden does not shift to the nonmoving party on a motion made pursuant to CPLR 3211(a)(7), a plaintiff has no obligation to show evidentiary facts to support [his or her] allegations of malice on [such] a motion'” … . Here, to the extent that the defendants’ statements may be shielded by any qualified privileges, the allegations of malice that were set forth in the complaint and in an affidavit submitted by [the cooperative president] preclude dismissal of the complaint insofar as asserted against the defendants for failure to state a cause of action ,,, ,

We agree with the Supreme Court that the Communications Decency Act (47 USC § 230) did not warrant dismissal of the complaint at this juncture. A defendant is “immune from state law liability if (1) it is a provider or user of an interactive computer service’; (2) the complaint seeks to hold the defendant liable as a publisher or speaker’; and (3) the action is based on information provided by another information content provider'” … . “[I]f a defendant service provider is itself the content provider,’ it is not shielded from liability” … . Here, the plaintiffs alleged that the defendants authored the defamatory statements, which would mean that the defendants were content providers within the meaning of the statute … . Trump Vil. Section 4, Inc. v Bezvoleva, 2018 NY Slip Op 03389, Second Dept 5-9-18

​DEFAMATION (TWO STATEMENTS FOUND TO BE NONACTIONABLE EXPRESSIONS OF OPINION IN THIS DEFAMATION ACTION, PLAINTIFFS HAVE NO PROOF BURDEN ON A MOTION TO DISMISS, DEFENDANTS NOT SHIELDED BY THE COMMUNICATIONS DECENCY ACT (SECOND DEPT))/OPINION (DEFAMATION, TWO STATEMENTS FOUND TO BE NONACTIONABLE EXPRESSIONS OF OPINION IN THIS DEFAMATION ACTION, PLAINTIFFS HAVE NO PROOF BURDEN ON A MOTION TO DISMISS, DEFENDANTS NOT SHIELDED BY THE COMMUNICATIONS DECENCY ACT (SECOND DEPT))/COMMUNICATIONS DECENCY ACT (DEFAMATION, TWO STATEMENTS FOUND TO BE NONACTIONABLE EXPRESSIONS OF OPINION IN THIS DEFAMATION ACTION, PLAINTIFFS HAVE NO PROOF BURDEN ON A MOTION TO DISMISS, DEFENDANTS NOT SHIELDED BY THE COMMUNICATIONS DECENCY ACT (SECOND DEPT))

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