November 20, 2018

Teacher sues to recover damages for alleged defamatory statement contained in an e-mail


Teacher sues to recover damages for alleged defamatory statement contained in an e-mail
2018 NY Slip Op 07701, Appellate Division, Second Department

The tort of defamation may refer to an alleged false statement, communicated orally [slander] or in a writing [libel], that injures an individual's "reputation" or his or her "good name" in the community.

The Plaintiff in this action contended that the Defendant sent an email to the Plaintiff''s adult children in which Defendant alleged Plaintiff, a teacher, had engaged in an act of "professional misconduct" and "communicated the [D]efendant's opinion of the character of the [P]laintiff" to the children.

Supreme Court granted Defendant's motion to dismiss the action and Plaintiff appealed. The Appellate Division sustained the lower court's action.

The court, citing Mann v Abel, 10 NY3d 271, explained that a defamatory statement constituting "pure opinion" is not actionable under New York State Law because expressions of opinion, in contrast to assertions of fact, are deemed privileged and, no matter how offensive, cannot be the subject of an action for defamation.

Here, however, the Appellate Division observed that although the subject email communicated the Defendant's opinion of the character of the Plaintiff, the email also set forth disputed allegations of fact that had a precise meaning which were readily understood and which were capable of being proven true or false, and in context, the email could be reasonably understood to proffer assertions of fact. Thus, said the court, the subject email communication contained potentially actionable statements of fact.

In a defamation action the plaintiff must allege that he or she suffered special damages - the loss of something having economic or pecuniary value unless the statement is defamatory per se. Plaintiff in this action, however, did not allege special damages nor did the subject email did not "charge the [P]laintiff with any serious crime" or having any "loathsome disease."

Noting that "one statement in the email referred to alleged professional misconduct by the [P]laintiff," a teacher, the Appellate Division concluded that "under these circumstances that allegation of a single instance of professional misconduct is not actionable" and the email did not contain any other statements that could be deemed defamatory per se.

With respect to statements deemed "defamatory per se", in Geraci v Probst, 15 NY3d 336, the Court of Appeals sustained a trial court's instruction to the jury that Probst's statement was defamatory per se because it alleged that Geraci had committed a crime, in this instance "a violation of the General Municipal Law related to the exercise of [Geraci's] public office" and that the statement was false.

In Golub v Enquirer/Star Group, 89 NY2d 1074, the court opined that "Generally, a written statement may be defamatory 'if it tends to expose a person to hatred, contempt or aversion, or to induce an evil or unsavory opinion of him in the minds of a substantial number of the community'", quoting Mencher v Chesley, 297 NY 94. Damages will likewise be presumed for statements that charge a person with committing a serious crime or that would tend to cause injury to a person's profession or business. 

In this action, however, Appellate Division, for the reasons indicated above, sustained the Supreme Court's determination to grant Defendant's motion to dismiss Plaintiff's cause of action alleging defamation.

The decision is posted on the Internet at:


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