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Statements Constituted Opinion, Not Facts/Defamation Complaint Against Syracuse Basketball Coach Dismissed for Failure to State a Cause of Action

[Reversed by the Court of Appeals]

Over a two-justice dissent, the Fourth Department affirmed the dismissal of a defamation action at the pre-answer stage, finding that the statements attributed to the defendant in the complaint constituted opinion, not fact.  The defendant (coach of the Syracuse University basketball team) characterized allegations made by plaintiff (accusing defendant’s friend and long-time assistant coach, Bernie Fine, of sexual improprieties) as lies. Taking the statements attributed to defendant as a whole, the Fourth Department determined they amounted to opinion and were therefore not actionable:

“Making a false statement that tends to expose a person to public contempt, hatred, ridicule, aversion or disgrace constitutes defamation . . . Generally, only statements of fact can be defamatory because statements of pure opinion cannot be proven untrue” … .  “The issue at this early, preanswer stage of the litigation is whether plaintiff[s’] [complaint] sufficiently allege[s] false, defamatory statements of fact rather than mere nonactionable statements of opinion” … .  “Expressions 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” … .  Although the Court of Appeals has acknowledged that “[d]istinguishing between opinion and fact has ‘proved a difficult’ task” …, it has provided three factors for courts to consider in determining whether the alleged defamatory statements are actionable statements of fact or nonactionable statements of opinion ….

We agree with plaintiffs that defendant’s statements that they lied and that they did so out of a financial motivation are statements of fact when viewed in light of the first two factors set forth in Mann, i.e., those statements use specific language that “has a precise meaning which is readily understood” and are “capable of being proven true or false” ….  We note in particular that, when defendant was asked during the syracuse.com interview what plaintiff’s “possible motivation would be to tell his disturbing story at this time,” he responded that plaintiff was “trying to get money.  He’s tried before.  And now he’s trying again.”  Although that statement may be interpreted as implying that defendant knew facts that were not available to the reader…, we are nevertheless mindful that we “must consider the content of the communication as a whole, as well as its tone and apparent purpose and in particular should look to the over-all context in which the assertions were made and determine on that basis whether the reasonable reader would have believed that the challenged statements were conveying facts about . . . plaintiff” … .  Furthermore, we must “avoid[] the ‘hypertechnical parsing’ of written and spoken words for the purpose of identifying ‘possible fact[s]’ that might form the basis of a sustainable libel action” … .

Defendant’s statements also must be viewed in light of the third factor set forth in Mann, i.e., “whether either the full context of the communication in which the statement[s] appear[] or the broader social context and surrounding circumstances are such as to signal . . . readers or listeners that what is being read or heard is likely to be opinion, not fact” … .  Defendant additionally stated in the interview with syracuse.com:  “So, we are supposed to do what? Stop the presses 26 years later?  For a false allegation?  For what I absolutely believe is a false allegation?  I know [plaintiff is] lying about me seeing him in his hotel room.  That’s a lie.  If he’s going to tell one lie, I’m sure there’s a few more of them . . . I have never been in Bernie Fine’s hotel room in my life . . . Now, could I have once . . . one time?  I have a pretty good recollection of things, but I don’t ever recollect ever walking into Bernie Fine’s hotel room.  Ever.”  In his interview with ESPN, defendant stated:  “I know this kid, but I never saw him in any rooms or anything . . . It is a bunch of a thousand lies that [plaintiff] has told.  You don’t think it is a little funny that his cousin . . . is coming forward? . . . He supplied four names to the university that would corroborate his story.  None of them did . . . [T]here is only one side to this story.  He is lying.”

We conclude that defendant’s statements demonstrate his support for Fine, his long-time friend and colleague, and also constitute his reaction to plaintiff’s implied allegation, made days after Penn State University fired its long-term football coach, that defendant knew or should have known of Fine’s alleged improprieties.  We therefore conclude that the content of the statements, together with the surrounding circumstances, “ ‘are such as to signal . . . readers or listeners that what is being read or heard is likely to be opinion, not fact’ ”… . Davis and Lang v Boeheim…, 836, 4th Dept 10-4-13

 

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Published Information Gleaned from Court Submission Privileged

The First Department determined that news articles based upon papers filed in court proceedings were privileged pursuant to Civil Rights Law section 74:

Defendants moved to dismiss the complaint on the ground that all of the published material was absolutely privileged under Civil Rights Law § 74, which protects “the publication of a fair and true report of any judicial proceeding.” Supreme Court granted the motion, and we affirm.

It is undisputed that all statements claimed to be libelous are part of a “report of [a] judicial proceeding” (Civil Rights Law § 74) since the article reports on court papers, i.e., the FBI affidavit. Russian Am Found Inc v Daily News LP, 2013 NY Slip Op 05549, 1st Dept 8-6-13

 

Criteria Where Defendant Not Specifically Mentioned in Allegedly Defamatory Statement

In affirming Supreme Court’s dismissal of a defamation cause of action, the Second Department explained the plaintiff’s burden when the plaintiff is not specifically named in the allegedly defamatory statements:

While a plaintiff need not be specifically named in a publication to sustain a cause of action sounding in defamation, a plaintiff who is not specifically identified “must sustain the burden of pleading and proving that the defamatory statement referred to him or her” … .. “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”…. A court may grant a motion to dismiss a defamation cause of action if the complaint cannot support a finding that the statement refers to the plaintiff …. Indeed, the burden of pleading and proving that statements are ” of and concerning'” the plaintiff … is not a ” light one'”… . Dong v Hai, 2013 NY Slip Op 05191, 2nd Dept 7-10-13

 

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Elements of Malicious Prosecution, False Arrest, False Imprisonment, Libel and Slander Explained

In affirming Supreme Court, which dismissed some causes of action and allowed others to stand, the Fourth Department explained elements of several intentional torts, including malicious prosecution, false arrest, false imprisonment, libel and slander.

Malicious prosecution:

“The elements of the tort of malicious prosecution are:(1) the commencement or continuation of a criminal proceeding by the defendant against the plaintiff, (2) the termination of the proceeding in favor of the accused, (3) the absence of probable cause for the criminal proceeding and (4) actual malice” . ;. . “In the context of a malicious prosecution cause of action, probable cause ‘consists of such facts and circumstances as would lead a reasonably prudent person in like circumstances to believe plaintiff guilty’ ”…Actual malice “means that the defendant must have commenced the . . . criminal proceeding due to a wrong or improper motive, something other than a desire to see the ends of justice served”… . * * *

False arrest, false imprisonment:

It is well settled that a plaintiff’s appearance in court as a result of the issuance of a criminal summons or appearance ticket is insufficient to support a claim of false arrest or false imprisonment…, and here “the record establishes that plaintiff was never arrested or held in actual custody by any law enforcement agency as a result of the charge . . . filed against [him]” … .

Libel:

…W]e conclude that the court properly denied that part of their motion seeking to dismiss the libel cause of action (eighth cause of action). [Defendant’s] statement that plaintiff made “several threats toward[] [defendant] and [her] residence,” which was contained in her supporting deposition that she provided to the police, “tends to expose the plaintiff to public contempt, ridicule, aversion or disgrace, or [to] induce an evil opinion of him in the minds of right-thinking persons” … .Moreover, contrary to the contention of the …defendants, proof of special damages is not required for libel on its face or libel per se…

Slander:

The two allegedly defamatory statements pleaded in the complaint do not constitute slander per se because they do not “charg[e] plaintiff with a serious crime” or “tend to injure [plaintiff] in his . . . trade, business or profession”… .Contrary to the contention of plaintiff, stalking in the fourth degree does not constitute a “serious crime” for purposes of slander per se … . “To be actionable as words that tend to injure another in his or her profession, the challenged statement must be more than a general reflection upon [the plaintiff]’s character or qualities. Rather, the statement must reflect on [the plaintiff’s] performance or be incompatible with the proper conduct of [the plaintiff’s] business”… .  Zetes v Stephens, et al, 406, 4th Dept 7-5-13

 

Libel Action Against Reporter Dismissed—No Showing of Gross Irresponsibility in Gathering and Verifying Information

In dismissing a libel action against a reporter who erroneously alleged in a newspaper story that plaintiff used money collected from students for workbooks to buy faculty lunches and an air conditioner for the faculty workroom, the Second Department wrote:

“[W]hen the claimed defamation arguably involves a matter of public concern, a private plaintiff must prove that the media defendant acted in a grossly irresponsible manner without due consideration for the standards of information gathering and dissemination ordinarily followed by responsible parties'”…. The “standard of gross irresponsibility’ demands no more than that a publisher utilize methods of verification that are reasonably calculated to produce accurate copy” ….

Here, the record reveals that …some of the factual claims in the article and accompanying editorial were true, some of the claims were not, … .However, we nevertheless conclude that the defendants met their prima facie burden of demonstrating their entitlement to judgment as a matter of law by establishing that the article involved matters of public concern …, and that [the reporter] did not act in a grossly irresponsible manner while gathering and verifying information for the article…. Matovik v Times Beacon Record Newspapers,. 2013 NY Slip Op 05051, 2nd Dept 7-3-13

 

Plaintiff Unable to Prove Actual Malice—Summary Judgment to Defendant

In determining a libel complaint brought by the Humane Society of the United States (HSUS) against defendants based upon an ad defendants placed in the New York Times which was captioned “Why is [HSUS] Helping a Terrorist Group Raise Money?” should have been dismissed, the First Department wrote:

The court should have dismissed the amended complaint as against all of the defendants. Contrary to plaintiff’s contention, it is a public figure…. It thrust itself to the forefront of the public controversy on animal cruelty and sought to influence public action on this issue. Accordingly, as a public figure, plaintiff must show by clear and convincing evidence that defendants published the ad at issue with actual malice in order to prevail on any claim of libel….

“[A] libel defendant’s burden in support of summary judgment is not . . . to prove as a matter of law that it did not publish with actual malice, but to point to deficiencies in the record that will prevent plaintiff from proving that fact by clear and convincing evidence” …. Here, defendants were entitled to summary judgment because they cited deficiencies in the record that prevent plaintiff from proving actual malice (i.e., that defendants “entertained serious doubts as to the truth of [its] publication or acted with a high degree of awareness of . . . probable falsity . . . at the time of publication”) by clear and convincing evidence…. Humane League of Phila Inc v Berman & Co, 2013 NY Slip Op 04989, 1st Dept 7-2-13

 

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NEWSPAPER ARTICLES ABOUT JUDICIAL PROCEEDINGS ENTITLED TO ABSOLUTE PRIVILEGE (CT APP)

The Court of Appeals determined the newspaper articles about plaintiff and plaintiff’s corporation were entitled to absolute privilege in this defamation action:

This defamation case arose from a series of articles and editorials published by The Buffalo News (News) in 2007 and 2008 concerning a federal investigation, related lawsuits and a guilty plea in federal court by National Air Cargo (NAC), an air freight forwarder, to settle allegations that it had overcharged the federal government on military freight contracts in the continental United States. The newspaper reported that NAC and its owner and chairman, plaintiff Christopher Alf, had admitted that NAC “cheated” the government over a period of several years in the amount of millions of dollars, that NAC would pay almost $28 million in fines and restitution, and that no executives would face jail time. Plaintiff sued for defamation, arguing that the News’s reporting was false and misleading because it reported prolonged wrongdoing as opposed to a single admitted false statement and because the average reader would think that plaintiff had personally engaged in wrongful conduct. Supreme Court granted summary judgment to the newspaper, holding that the News was entitled to the defense of absolute privilege under Civil Rights Law § 74, which provides that “[a] civil action cannot be maintained against any person, firm or corporation, for the publication of a fair and true report of any judicial proceeding.” The Appellate Division affirmed … .We now affirm as well.

… [T]he publication must be considered in its entirety when evaluating the defamatory effect of the words”… . … [V]iewing the articles as a whole, the average reader would conclude that the company, and not plaintiff, pleaded guilty to wrongdoing and that the amount of restitution covered more than the single, admitted incident. As we have said, “newspaper accounts of legislative or other official proceedings must be accorded some degree of liberality. When determining whether an article constitutes a ‘fair and true’ report, the language used therein should not be dissected and analyzed with a lexicographer’s precision” … . Here, the News provided substantially accurate reporting of the plea agreement and the fines and restitution, as discussed in open court. Thus, all the challenged statements concerning NAC and plaintiff relating to these proceedings are entitled to immunity under Civil Rights Law § 74. Alf v Buffalo News, Inc., 2013 NY Slip Op 04843 [21 NY3d 988], CtApp 6-27-13

 

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Qualified Privilege in Defamation Action Against School District Explained

In the course of a lengthy decision dealing with many issues raised by a defamation/stigma-plus proceeding brought by a school district employee against a school district, the Third Department explained qualified privilege in this context. The plaintiff was a coach whose boyfriend [Broxmeyer] had raped a student at another school.  Plaintiff alleged that defendant Arbes, principal of the high school, “stated at a meeting with several staff members that plaintiff should avoid private one-on-one  conversations with students and should take a leave of absence ‘for the safety of the students.’ “.  The Third Department wrote:

Qualified privilege provides a  complete defense to a claim of slander, and attaches to an otherwise defamatory statement “made to persons who have some common interest in the subject matter” … .  A privileged communication is one which, but for the occasion on which it is uttered, would be defamatory and actionable'”….The  defense does  not apply, however,  “where the motivation for making such statements was spite or ill will (common-law malice) or where the ‘statements [were] made with [a] high degree of awareness of their probable falsity’ … .Arbes made the statement at issue at a meeting where she, plaintiff and three other individuals were present. Plaintiff acknowledges that Keeler, the junior varsity field hockey coach and union president, had a common interest in the subject, as did a union employee who was present.  The third individual may have had the same interest because Keeler averred that the individual was a union representative. Additionally, she was a guidance counselor, and Arbes averred that guidance counselors were being made available to students who may have had difficulty dealing with the situation surrounding  Broxmeyer’s arrest, the police investigation and plaintiff’s suspension and later termination.  As all of the persons present for the meeting had a common interest in the subject matter and the record lacks any evidence of malice, Supreme Court correctly determined that Arbes’ statement at the meeting was not actionable based on the qualified privilege.  Wilcox v Newark Valley Central School District, 515906, 3rd Dept, 6-6-13

 

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Disparaging Allegations in Complaint Protected by Judicial Privilege

In a defamation action, after finding that the disparaging allegations in a complaint were protected by judicial privilege, the Second Department criticized the use of invective in the pleadings:

The court properly concluded that the statements made in the underlying complaint were pertinent to the action and therefore absolutely protected by the judicial proceedings privilege… . The allegedly defamatory allegations were broadly pertinent to the tortious interference claim, as they bore on the mother’s intent, provided the context for the dispute, and supported the claim for punitive damages… . The pertinence of the statements negates any finding of abuse of the judicial proceedings privilege … . Moreover, the statements were expressions of opinion, not fact, or they constituted hyperbole, which are also absolutely protected… . *  *  * Nevertheless, although we affirm, we note our disapproval of defendants’ use of a filed pleading as a vehicle for offensive, albeit nondefamatory invective. Such conduct offends the dignity of judicial proceedings and should not be condoned.  Joseph v Joseph, 2013 NY Slip Op 04111, 1st Dept, 6-6-13

 

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Slander Per Se Complaint Not Based Upon “Serious Crime” (Trespass) ​

In affirming the dismissal of a complaint alleging slander per se based upon the accusation defendant had committed trespass, the Third Department explained:

A statement will fall into one of the four categories of slander per se when  it is so noxious and injurious by nature that the law presumes that pecuniary damages will result and, thus, special damages need not be alleged ….  As relevant here, “slander per se” includes “statements . . . charging [a] plaintiff with a serious crime,” but “the law distinguishes between  serious and  relatively minor offenses, and  only statements regarding the former are actionable without proof of damage” … .  * * *

In any event, even construing the complaint liberally and according plaintiff the benefit of every favorable inference, it does not set forth the allegedly defamatory statement with sufficient particularity to satisfy the requirement of CPLR  3016… .  Martin v Hayes, 515024, 3rd Dept, 4-25-13

 

 

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