Plaintiff commenced this defamation action seeking damages for statements made by Defendant in a letter to the New York State Inspector General [IG] about Defendant's concerns that Plaintiff, as a member of the New York State Joint Commission on Public Ethics, and others, were disclosing confidential information to the media.
Defendant answered the complaint and asserted a counterclaim seeking to recover damages under the anti-strategic lawsuits against public participation statutes*. Plaintiff moved to dismiss Defendant's counterclaim, and Defendant moved, inter alia, to dismiss Plaintiff's complaint. Defendant appeals and Plaintiff cross-appeals from an order that denied both motions.
The Appellate Division agreed with Defendant that Supreme Court should have granted her motion insofar as it sought dismissal of the complaint pursuant to CPLR §3211(a), subdivisions (7) and (g) and modified Supreme Court's order accordingly. The court, noting that there "is no dispute that [Defendant] established on her motion that the action involves "public petition and participation", also concluded that Plaintiff, in opposition to the motion, "failed to demonstrate that the action has a substantial basis in law" inasmuch as Defendant's statements in question constitute nonactionable expressions of opinion.
The Appellate Division explained that "In order for the challenged statements to be susceptible of a defamatory connotation, they must come within the well established categories of actionable communications" and falsity is a necessary element of a defamation cause of action as only "facts" are capable of being proven false. Accordingly, said the court, "it follows that only statements alleging facts can properly be the subject of a defamation action." Citing Mann v Abel, 10 NY3d 271, [cert denied 555 US 1170], the Appellate Division said "whether a particular statement constitutes an opinion or an objective fact is a question of law".
Defendant's letter, said the court, constitutes "a statement of opinion ... accompanied by a recitation of the facts upon which it is based" and Defendant's allegations used phrases such as "appear to be" and "[t]o the extent that there is evidence," while setting forth the facts upon which such allegations were based.
Further, the Appellate Division noted the letter was addressed to the IG urging the commencement of an investigation and said that in reviewing the full context of the communication, "including its tone and purpose," it concluded that Defendant "set out the basis for [her] personal opinion, leaving it to the [IG] to evaluate it for [herself]", citing Brian v Richardson, 87 NY2d 46.
* See Civil Rights Law §§70-a and 76-a.
Click HERE to access the opinion of the Appellate Division posted on the Internet.