In an action for alleged defamation by a public official distinguishing actionable fact from a protected expression of opinion is a question of law
2014 NY Slip Op 01369, Appellate Division, Third Department
As the election season approaches, this decision by the Appellate Division addressing an appeal for alleged “defamation” may prove instructive to those involved in the process of electing a candidate to public office.
A candidate for election to public office [Plaintiff] sued another individual holing public office [Defendant] for defamation after Defendant place a political ad in a newspaper that Plaintiff alleged was defamatory. Defendant action following the placement of an ad in a newspaper by an alleged committee to elect Plaintiff that Defendant, in his counter-suit, contended was defamatory.
When Defendant’s motion for summary judgment* was denied by Supreme Court, Defendant appealed.
The Appellate Division dismissed Defendant’s appeal noting that “… [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 non-movant, [here the Plaintiff] there is adequate evidence in the record to raise a triable issue of fact regarding whether [Defendant] acted with actual malice.
The Appellate Division said that Plaintiff was a public figure and, as such, he must prove by clear and convincing evidence that the Defendant made a false statement with actual malice. The court explained that “Distinguishing actionable fact from a protected expression of opinion is a question of law in which several factors are weighed, including:
1. Whether the allegedly defamatory words have a precise meaning that is readily understood,
2. Whether the statement can be proven as true or false, and
3. Whether the context and surrounding circumstances would indicate that the comment is an opinion.”
The Appellate Division said that Defendant's statement included both a strong inference that Defendant “knows undisclosed facts that support his assertion” that Plaintiff engaged in "numerous unscrupulous dealings" when he previously served in an elective office and included an example that indicated possible unlawful abuse of that office.
Accordingly, the Appellate Division said that it agreed with Supreme Court that Defendant's statements were sufficiently susceptible to a defamatory meaning to avoid summary judgment.
* The Appellate Division noted that 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."
The decision is posted on the Internet at:
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