You are here: / Defamation
,

Complaint Stated a “Mixed Opinion” Defamation Cause of Action—A “Mixed Opinion” Statement Implies It Is Based Upon Facts Unknown to the Reader—Pre-Answer Motion to Dismiss Should Not Have Been Granted

The Court of Appeals, in a full-fledged opinion by Judge Rivera, reversed the 4th Department and reinstated a defamation complaint against Syracuse University and James Boeheim, the head coach of the Syracuse University men’s basketball team. The complaint had been dismissed pursuant to CPLR 3211(a)(7) on the ground that the statements were pure opinion and were therefore not actionable as a matter of law. The Court of Appeals determined that the allegations in the complaint (accepted as true for purposes of the pre-answer motion to dismiss) included statements by Coach Boehein which implied the existence of facts within his knowledge but unknown to the reader.  Such statements are actionable as “mixed opinion.”  The plaintiffs alleged that the team’s associate coach had sexually molested them more than twenty years before.  Coach Boeheim described the plaintiffs as liars who were making the allegations for financial gain.  The court explained its role in determining a pre-answer motion to dismiss and the relevant law of defamation:

This appeal comes to us on a pre-answer motion to dismiss pursuant to CPLR 3211 (a) (7), a procedural posture which requires that “we accept as true each and every allegation made by plaintiff and limit our inquiry to the legal sufficiency of plaintiff’s claim” … . Unlike on a motion for summary judgment where the court “searches the record and assesses the sufficiency of the parties’ evidence,” on a motion to dismiss the court “merely examines the adequacy of the pleadings” … . In determining the sufficiency of a defamation pleading, we consider “whether the contested statements are reasonably susceptible of a defamatory connotation” … . As we have previously stated, “[i]f, upon any reasonable view of the stated facts, plaintiff would be entitled to recovery for defamation, the complaint must be deemed to sufficiently state a cause of action” … . We apply this liberal standard fully aware that permitting litigation to proceed to discovery carries the risk of potentially chilling free speech, but do so because, as we have previously stated, “we recognize as well a plaintiff’s right to seek redress, and not have the courthouse doors closed at the very inception of an action, where the pleading meets the minimal standard necessary to resist dismissal of the complaint” … . * * *

In order for the challenged statements to be susceptible of a defamatory connotation, they must come within the well established categories of actionable communications. Thus, a false statement “that tends to expose a person to public contempt, hatred, ridicule, aversion or disgrace constitutes defamation” … . “Since falsity is a necessary element of a defamation cause of action and only ‘facts’ are capable of being proven false, ‘only statements alleging facts can properly be the subject of a defamation action'” … .

A defamatory statement of fact is in contrast to “pure opinion” which under our laws is not actionable because “[e]xpressions of opinion, as opposed to assertions of fact, are deemed privileged and, no matter how offensive, cannot be the subject of an action for defamation” …. For, “[h]owever pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas” … . A pure opinion may take one of two forms. It may be “a statement of opinion which is accompanied by a recitation of the facts upon which it is based,” or it may be “an opinion not accompanied by such a factual recitation” so long as “it does not imply that it is based upon undisclosed facts” … .

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” … . This requirement that the facts upon which the opinion is based are known “ensure[s] that the reader has the opportunity to assess the basis upon which the opinion was reached in order to draw [the reader’s] own conclusions concerning its validity” … . What differentiates an actionable mixed opinion from a privileged, pure opinion is “the implication that the speaker knows certain facts, unknown to [the] audience, which support [the speaker’s] opinion and are detrimental to the person” being discussed ,,, .

Distinguishing between fact and opinion is a question of law for the courts, to be decided based on “what the average person hearing or reading the communication would take it to mean” … . “The dispositive inquiry … is ‘whether a reasonable [reader] could have concluded that [the statements were] conveying facts about the plaintiff” … . Davis v Boeheim, 2014 NY Slip Op 07083, CtApp 10-21-14

 

, , , , ,

Sheriff’s (Lack of) Liability Under Respondeat Superior, Elements of Malicious Prosection, Abuse of Process, False Imprisonment and Libel Per Se Explained

In a lengthy and detailed decision the Fourth Department explained the negligence actions against the sheriff based on respondeat superior were properly dismissed, the action for malicious prosecution was properly dismissed (because the underlying criminal action was not dismissed on the merits and could be renewed), but the actions for abuse of process, false imprisonment, and libel per se should not have been dismissed.  The decision is too lengthy to summarize here, but it includes detailed explanations of the sheriff’s immunity from suit under respondeat superior and the elements of malicious prosecution, abuse of process, false imprisonment, and libel per se. The action stemmed from the allegation plaintiff was falsely accused of stealing a computer.  D’Amico v Correctional Med Care Inc, 2014 NY Slip Op -5737, 4th Dept 8-8-14

 

,

Defamation Action Brought by Judge Against a Reporter Properly Dismissed—Although the Reporter Made Defamatory Statements Which Were Not Privileged, the Judge Failed to Raise a Question of Fact About Malice as a Motivation

In a full-fledged opinion by Justice Saxe, the First Department affirmed the dismissal of a defamation action brought by a judge against a reporter.  The court determined that the reporter had made inaccurate statements which were defamatory and which were not privileged under  the Civil Rights Law.  However, because the judge was a public figure, the New York Times v Sullivan “malice” standard applied and, the court determined, the judge was unable to raise a question of fact about malice as a motivation for the reporting:

Although we agree with Justice Martin that the published columns were susceptible of a defamatory interpretation, were not protected opinion, and were not privileged under Civil Rights Law § 74, that is not the end of the inquiry; Justice Martin had to also clear the demanding hurdle presented by the standard set in New York Times Co. v Sullivan (376 US 254, 279-280 [1964]). Since he is a public figure, he had the burden of showing, with convincing clarity, actual malice — that is, that the author and publisher of the columns acted with reckless disregard for the truth … . “The standard is a subjective one, focusing on the speaker’s state of mind” … . This standard of “convincing clarity” applies even on a motion for summary judgment … .

“[R]eckless conduct is not measured by whether a reasonably prudent man would have published, or would have investigated before publishing. There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication” … . “[I]t is essential that the First Amendment protect some erroneous publications as well as true ones” … . Therefore, to prevail, Justice Martin was required to offer a showing tending to establish that Louis ” in fact entertained serious doubts as to the truth of his publication,’ or acted with a high degree of awareness of [its] probable falsity'” … . Martin v Daily News LP, 2014 NY Slip Op 05369, 1st Dept 7-17-14

 

,

Statement by Reporter About a Judicial Proceeding Entitled to Absolute Privilege

The Fourth Department determined a reporter’s (Velez-Mitchell;s) statements about a judicial proceeding were entitled to absolute privilege under Civil Rights Law 74.  The report concerned a lawsuit brought by a transgender woman and included reference to a DVD the woman had received from plaintiff Most Holy Family Monastery (MHFM).  The DVD was entitled “Death and the Journey to Hell.” The plaintiff contended the report falsely asserted that the Most Holy Family Monastery advocated putting homosexuals to death:

…[D]efendants are entitled to the absolute privilege set forth in Civil Rights Law § 74 … . The … statement was made in the context of the interview conducted by Velez-Mitchell, which concerned, inter alia, pending judicial proceedings commenced by the woman in California after her personal information had allegedly been misused by the DMV employee. During the interview, the woman and her attorney explained that the woman had obtained a temporary restraining order against the DMV employee based upon that employee’s misuse of her personal information, and that she had thereafter received the package from MHFM. The broadcast of the interview was twice promoted as a transgender woman “suing,” and a caption beneath the woman’s image stated, inter alia, “Transgender Woman Suing DMV.” Velez-Mitchell questioned a former prosecutor regarding the viability of an anticipated lawsuit against the DMV, and the woman’s attorney stated that “[t]he Human Rights Commission filed a complaint” concerning the incident and the “big picture is about privacy and the legal right to have [one’s] privacy protected.”

“When examining a claim of libel, we do not view statements in isolation. Instead, [t]he publication must be considered in its entirety when evaluating the defamatory effect of the words’ ” … . Here, “[r]ealistically considered,” the first statement provided background facts for the woman’s claims in pending and anticipated judicial proceedings, and the broadcast as a whole was a ” substantially accurate’ ” report of the judicial proceedings … . Consequently, the first statement is entitled to the absolute privilege set forth in Civil Rights Law § 74. Dimond v Time Warner Inc, 2014 NY Slip Op 05060, 4th Dept 7-3-14

 

To Demonstrate “Defamation by Implication” Where the Factual Statements Are Substantially True, It Must Be Shown the Communication as a Whole Imparts a Defamatory Inference and the Author Intended or Endorsed the Defamatory Inference

In a full-fledged opinion by Justice Feinman, the First Department adopted criteria for determining whether a publication is defamatory by implication.  The subject of the case was a published magazine article describing a conspiracy in Russia involving hundreds of millions in illicit funds.  The plaintiffs alleged that the article defamed them by implying involvement in the conspiracy. The First Department affirmed the dismissal of the complaint and adopted a standard which requires the plaintiff to demonstrate the defamatory inference of the substantially true statements, as well as that the author intended or endorsed that inference:

“Defamation by implication is premised not on direct statements but on false suggestions, impressions and implications arising from otherwise truthful statements” … . The implied defamation cause of action was recognized by the Court of Appeals in a 1963 decision determining that, although the publication at issue contained no directly defamatory statements, “a jury should decide whether a libelous intendment would naturally be given to it by the reading public acquainted with the parties and the subject-matter” … . The following year, the U.S. Supreme Court’s landmark decision in New York Times Co. v Sullivan (376 US 254 [1964]) found that the free speech protections guaranteed by the First Amendment to the U.S. Constitution placed substantial limits on the right to recover for defamatory statements … . In a 1977 libel decision, after discussing the impact Sullivan had on defamation jurisprudence, the Court of Appeals addressed an aspect of the plaintiff’s claim that was akin to implied defamation, noting that although an author “could not make up facts out of whole cloth, omission of relatively minor details in an otherwise basically accurate account is not actionable. This is largely a matter of editorial judgment in which the courts, and juries, have no proper function” … . * * *

“[I]f a communication, viewed in its entire context, merely conveys materially true facts from which a defamatory inference can reasonably be drawn, the libel is not established. But if the communication, by the particular manner or language in which the true facts are conveyed, supplies additional, affirmative evidence suggesting that the defendant intends or endorses the defamatory inference, the communication will be deemed capable of bearing that meaning” … .

…[T]his inquiry requires “an especially rigorous showing”: the “language must not only be reasonably read to impart the false innuendo, but it must also affirmatively suggest that the author intends or endorses the inference”… . * * *

… To survive a motion to dismiss a claim for defamation by implication where the factual statements at issue are substantially true, the plaintiff must make a rigorous showing that the language of the communication as a whole can be reasonably read both to impart a defamatory inference and to affirmatively suggest that the author intended or endorsed that inference. We believe this rule strikes the appropriate balance between a plaintiff’s right to recover in tort for statements that defame by implication and a defendant’s First Amendment protection for publishing substantially truthful statements… . Stepanov v Dow Jones & Co Inc, 2014 NY Slip Op 03940, 1st Dept 5-29-14

 

Remarks Made In the Course of Litigation Privileged

The Second Department determined that the allegedly defamatory remarks were privileged because they were made during the course of litigation:

To properly state a cause of action alleging defamation, a plaintiff must allege that, without privilege or authorization, and with fault as judged, at minimum, by a negligence standard, the defendant published to a third party a false statement … . Additionally, unless the defamatory statement fits within one of the four “per se” exceptions …, a plaintiff must allege that he or she suffered “special damages”—–“the loss of something having economic or pecuniary value” … . Where an allegedly false statement is defamatory per se, the law presumes that damages will result, so the plaintiff need not allege or prove them … . An otherwise defamatory statement may be “privileged” and therefore not actionable … . Generally, as relevant here, statements made at all stages of a judicial proceeding in communications among the parties, witnesses, counsel, and the court are accorded an absolute privilege, so long as the statements may be considered in some way “pertinent” to the issue in the proceeding … . This privilege, or “immunity” …, applies to statements made in or out of court, on or off the record, and regardless of the motive with which they were made… . El Jamal v Weil, 2014 NY Slip Op 02408, 2nd Dept 4-9-14

 

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

 

, ,

Attorney’s Defamation Suit Against Client Based Upon Letters Sent to the Attorney by the Client Dismissed

In a full-fledged opinion by Justice Saxe, the First Department determined that letters written by a client to an attorney, terminating the attorney’s employment, were not actionable under a defamation theory for three reasons: the statements constituted opinion; the statements were absolutely privileged; and the statements were qualifiedly privileged.  With respect to qualified privilege, the First Department wrote:

…[T]he statements contained in defendants’ letters would be subject to a qualified privilege as communications upon a subject matter in which both parties had an interest … . “The shield provided by a qualified privilege may be dissolved if plaintiff can demonstrate that defendant [made the statement] with malice,'” which may mean either spite or ill will, or knowledge that the statement was false or made in reckless disregard of its truth or falsity … . The statement must have been made with a proper purpose, and publication must be in a proper manner and to proper parties only … .

A client’s letter to an attorney terminating the attorney’s services and explaining the client’s perceived grounds for the termination qualifies as a communication on a subject in which sender and recipient have a shared interest. Where the letter is sent only to the attorney, and access to its contents is limited to the recipient and the defendant (which includes any of defendant’s employees who assisted in its preparation), proper publication is established as a matter of law. Plaintiff’s bare allegations of malice are insufficient to prevent dismissal on this ground.

“The threat of being put to the defense of a lawsuit . . . may be as chilling to the exercise of First Amendment freedoms as fear of the outcome of the lawsuit itself” … . As a matter of public policy, which should protect open and honest communication between attorneys and their clients, clients must be permitted to make such claims, or complaints, directly to their attorneys, and to their attorneys alone, without threat of a lawsuit. Frechtman v Gutterman, 2014 NY slip Op 00437, 1st Dept 1-23-14

 

,

Criteria for Pre-Action Disclosure and Defamation Explained

The Second Department determined that a request for pre-action disclosure of the name of an anonymous blogger (whom petitioners alleged posted defamatory remarks during an election campaign) should not have been granted.  Pre-action disclosure should only be allowed when the petitioner has alleged facts indicating the existence of a cause of action.  Here the facts alleged did not make out a cause of action for defamation:

Before an action is commenced, “disclosure to aid in bringing an action” may be obtained by court order (CPLR 3102[c]), including “discovery in order to obtain information relevant …to determining who should be named as a defendant” … . A petition for pre-action discovery limited to obtaining the identity of prospective defendants should be granted where the petitioner has alleged facts fairly indicating that he or she has some cause of action …

Contrary to the Supreme Court’s determination, the petitioners failed to allege facts fairly indicating that they have a cause of action to recover damages for defamation based on the two posts at issue by the blogger Q-Tip. “The elements of a cause of action for defamation are a false statement, published without privilege or authorization to a third party, constituting fault as judged by, at a minimum, a negligence standard, and it must either cause special harm or constitute defamation per se” … . “In determining whether a complaint states a cause of action to recover damages for defamation, the dispositive inquiry is whether a reasonable listener or reader could have concluded that the statements were conveying facts about the plaintiff”… . Further, “[a] false statement constitutes defamation per se when it charges another with a serious crime or tends to injure another in his or her trade, business, or profession” … .

Here, given the context in which the challenged statements were made, on an Internet blog during a sharply contested election, a reasonable reader would have believed that the generalized reference to “downright criminal actions” in a post entitled “Would You Buy A Used Car From These Men?” was merely conveying opinion, and was not a factual accusation of criminal conduct … . Further, the petitioners failed to demonstrate that the remaining portions of the challenged statements by Q-Tip constituted defamation per se… .  Matter of Konig v CSC Holdings LLC, 2013 NY Slip Op 08632, 2nd Dept 12-26-13

 

, ,

Statement Protected by “Common Interest Privilege,” Tortious Interference Action Can Only Be Brought Against a Stranger to the Contract

The First Department affirmed the dismissal of a complaint alleging defamation and tortious interference with contract.  The court explained that the statement made by a management employee was protected by the common interest privilege and only a stranger to a contract can bring a tortious interference claim:

Defendant…’s statement that plaintiff was “deliberately sabotaging” defendant[‘s] IT redesign project was protected by the common-interest privilege because it constituted a communication “made to persons who have some common interest in the subject matter” …, namely, the people working on the IT system redesign. The statement is also protected as one made by a “management employee[] having responsibility to report on the matter in dispute” … . Plaintiff’s allegations of malice, in an effort to overcome the common-interest privilege, amount to little more than “mere surmise and conjecture” … .

Plaintiff’s tortious interference claims … were also properly dismissed. “It is well established that only a stranger to a contract, such as a third party, can be liable for tortious interference with a contract” … . Ashby v ALM Media LLC, 2013 NY Slip Op 06497, 1st Dept 10-8-13

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2025 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy