In its decision the Appellate Division, citing Stone v Bloomberg L.P., 163 AD3d 1028, quoting Greenberg v Spitzer, 155 AD3d 27: "The elements of a cause of action for defamation are (a) a false statement that tends to expose a person to public contempt, hatred, ridicule, aversion, or disgrace, (b) published without privilege or authorization to a third party, (c) amounting to fault as judged by, at a minimum, a negligence standard, and (d) either causing special harm or constituting defamation per se."
However, explained the court, "Whether a particular statement constitutes an opinion or objective fact is a question of law," [see Mann v Abel, 10 NY3d at 276]. Further, said the Appellate Division, in determining whether a challenged statement is opinion or fact, the factors to be considered by courts are:
"(1) whether the specific language at issue has a precise, readily understood meaning;
"(2) whether the statements are capable of being proven true or false; and
"(3) whether either the full context of the communication in which the statement appears or the broader social context and surrounding circumstances are such as to signal readers that what is stated is likely to be opinion, not fact."
Applying these factors in the instant case, the Appellate Division concluded that Supreme Court "properly determined that the statements at issue constituted nonactionable expressions of opinion."
Although the Board had contend that the statements at issue "are reasonably susceptible of defamatory connotations," the Appellate Division opined that the Board's complaint failed to "make a rigorous showing that the language of the [article] as a whole can be reasonably read both to impart a defamatory inference and to affirmatively suggest that the [Defendants] intended or endorsed that inference," citing Udell v NYP Holdings, Inc., 169 AD3d at 957, quoting Stepanov v Dow Jones & Co., Inc., 120 AD3d 28, 37-38.
Accordingly, the Appellate Division sustained Supreme Court's ruling.