In this action, Plaintiff and third-party defendant, a Town employee [Employee], became embroiled in a personal dispute after the Town prohibited Employee from using the Town's equipment to move certain gear associated with a concession stand business that Employee operated on property maintained by the Town.
Employee sought and obtained a decision by a New York State Supreme Court justice which denied the Town's motion for summary judgment dismissing Employee's complaint and granted Employee's cross-motion for summary judgment on the Employee's complaint, which asserts a single cause of action, slander per se. Town appealed the Supreme Court's rulings.
The Appellate Division unanimously reversed the Supreme Court's decision "on the law without costs", granted Town's motion to dismiss the Employee's appeal and dismissed Employee's complaint.
Turning to the issue of whether the Employee's statements made during the incident are actionable, the Appellate Division said it must consider the statements "in [their] applicable context" and "in terms of [their] effect upon the average listener" and [to] determine whether a reasonable listener would consider the statements to connote fact or nonactionable opinion, we must evaluate:
"(1) whether the specific language in issue has a precise meaning which is readily understood;
"(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 . . . listeners that what is being . . . heard is likely to be opinion, not fact".
In the instant matter the Appellate Division concluded that the Employee's inflammatory insults "are nonactionable rhetorical hyperbole, particularly given the rhetorical manner in which the statements were uttered".
Click HERE to access the Appellate Division's decision posted on the Internet.