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July 26, 2012

A false statement of fact is a necessary element in proving a cause of action alleging defamation


A false statement of fact is a necessary element in proving a cause of action alleging defamation
Goldberg v Levine, 2012 NY Slip Op 05613, Appellate Division, Second Department

Supreme Court dismissed Barry Goldberg’s petition seeking to recover damages for alleged defamation based upon certain written and oral statements allegedly made about him by the Steven Levine at town board meetings and in a local newspaper. Goldberg appealed.

The Appellate Division affirmed the lower court’s ruling, explaining that 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 complaining party.

Falsity, said the court, is a necessary element in a defamation cause of action and only facts are capable of being proven false. Accordingly, it follows that “only statements alleging facts can properly be the subject of a defamation action.”

Characterizing certain of Levine’s statements that Goldberg alleged were made at Town Board meetings and in a local newspaper as “rhetorical hyperbole” and expressions of “individual opinion,” the court said “accepting these allegations in [Goldberg’s] complaint as true … they fail to state a cause of action to recover damages for defamation.”

The Appellate Division also observed that “the documentary evidence submitted by [Levine] demonstrated that the Levine's statements … were substantially true” and  "Truth is an absolute defense to an action based on defamation."

The decision is posted on the Internet at:

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