Fon v. Krowe

204 A.D.3d 889

164 N.Y.S.3d 843 (Mem)

Richard FON, et al., appellants,

v.Elliot KROWE, et al., respondents.

2019–10051

Index No. 53819/19

Supreme Court, Appellate Division, Second Department, New York.

Submitted—February 14, 2022

April 20, 2022

Cusano Smith PLLC, Bedford Hills, NY (Gary A. Cusano of counsel), for appellants.

Ron Stokes (Richard S. Abbate, White Plains, NY, of counsel), for respondents.

FRANCESCA E. CONNOLLY, J.P., LINDA CHRISTOPHER, LARA J. GENOVESI, DEBORAH A. DOWLING, JJ.

DECISION & ORDER

In an action to recover damages for libel, the plaintiffs appeal from an order of the Supreme Court, Westchester County (Terry Jane Ruderman, J.), dated August 14, 2019. The order granted the defendants’ motion pursuant to CPLR 3211(a)(7) to dismiss the complaint.

ORDERED that the order is affirmed, with costs.

The plaintiffs are members of the Yorktown Planning Board, which entity approved plans for the development of certain property located in Yorktown Heights. In March 2019, the plaintiffs commenced this action to recover damages resulting from allegedly defamatory statements contained in an letter published on the "opinion" page of nonparty Yorktown News that had been written by the defendant Elliot Krowe, co-chair of the defendant Yorktown Democratic Committee, relating to the approval of the plans. The defendants moved pursuant to CPLR 3211(a)(7) to dismiss the complaint. In an order dated August 14, 2019, the Supreme Court granted the defendants’ motion. The plaintiffs appeal.

" ‘On a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), the court must accept the facts alleged by the plaintiff as true and liberally construe the complaint, according it the benefit of every possible favorable inference’ " ( Tsatskin v. Kordonsky, 189 A.D.3d 1296, 1297, 138 N.Y.S.3d 641, quoting Dee v. Rakower, 112 A.D.3d 204, 208, 976 N.Y.S.2d 470 ).

" ‘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’ " ( Stone v. Bloomberg L.P., 163 A.D.3d 1028, 1029, 83 N.Y.S.3d 78, quoting Greenberg v. Spitzer, 155 A.D.3d 27, 41, 62 N.Y.S.3d 372 ). "Expressions of opinion, as opposed to assertions of fact, are deemed privileged and, no matter how offensive, cannot be the subject of an action for defamation" ( Mann v. Abel, 10 N.Y.3d 271, 276, 856 N.Y.S.2d 31, 885 N.E.2d 884 ; see Davis v. Boeheim, 24 N.Y.3d 262, 998 N.Y.S.2d 131, 22 N.E.3d 999 ; Kasavana v. Vela, 172 A.D.3d 1042, 100 N.Y.S.3d 82 ). "Whether a particular statement constitutes an opinion or objective fact is a question of law" ( Mann v. Abel, 10 N.Y.3d at 276, 856 N.Y.S.2d 31, 885 N.E.2d 884 ). "In distinguishing between statements of opinion and fact, the factors to be considered 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" ( Stolatis v. Hernandez, 161 A.D.3d 1207, 1209–1210, 77 N.Y.S.3d 473 ; see Mann v. Abel, 10 N.Y.3d at 276, 856 N.Y.S.2d 31, 885 N.E.2d 884 ).

Applying these factors here, the Supreme Court properly determined that the statements at issue constituted nonactionable expressions of opinion (see Brian v. Richardson, 87 N.Y.2d 46, 637 N.Y.S.2d 347, 660 N.E.2d 1126 ; Eros Intel., PLC v. Mangrove Partners, 191 A.D.3d 465, 140 N.Y.S.3d 518 ; Board of Mgrs. of Brightwater Towers Condominium v. Shlivko, 186 A.D.3d 553, 126 N.Y.S.3d 677 ; Udell v. NYP Holdings, Inc., 169 A.D.3d 954, 94 N.Y.S.3d 314 ; Crescendo Designs, Ltd. v. Reses, 151 A.D.3d 1015, 58 N.Y.S.3d 112 ...