Questions of Fact About Defamatory Meaning and Malice Re: Statements Concerning a Public Figure

The Third Department determined plaintiff, a public figure, had raised questions of fact about whether defamatory advertisements were done with malice:

Plaintiff was a public figure … and, as such, he must prove by clear and convincing evidence that defendant made a false statement with actual malice … . Distinguishing actionable fact from a protected expression of opinion is a question of law in which several factors are weighed, including whether the allegedly defamatory words have a precise meaning that is readily understood, whether the statement can be proven as true or false, and whether the context and surrounding circumstances would indicate that the comment is an opinion … . Further, summary judgment dismissing a defamation action may be avoided where the statement is a “‘mixed opinion’ implying a basis in undisclosed fact” or “‘pure opinion’ that accuses the plaintiff of engaging in criminal conduct”… .Since defendant’s statement includes both a strong inference that he knows undisclosed facts that support his assertion that plaintiff engaged in “numerous unscrupulous dealings” when he previously was Town Supervisor and includes an example that indicated possible unlawful abuse of that office, we agree with Supreme Court that the statements are sufficiently susceptible to a defamatory meaning to avoid summary judgment … . Moreover, defendant essentially acknowledged at his deposition that he had no basis for some of his accusations, and when this proof is viewed most favorably to the nonmovant, there is adequate evidence in the record to raise a triable issue of fact regarding whether defendant acted with actual malice… . Baker v Galusha, 517125, 3rd Dept 2-27-14