Gentile v. Grand Street Medical Associates
911 N.Y.S.2d 743
N.Y. App. Div.
2010
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LISA GENTILE, Aрpellant, v GRAND STREET MEDICAL ASSOCIATES, Respondent.

Supreme Court, Appellate Division, Third Department, New York

[911 NYS2d 743]

LISA GENTILE, Appellant, v GRAND STREET MEDICAL ‍‌‌‌‌‌​​‌‌‌‌‌​‌‌​​​​​​​‌‌​‌‌​​‌​‌‌​‌​​‌‌​​‌‌‌‌​‌‌‍ASSOCIATES, Respondent. [911 NYS2d 743]

Pеters, J. Appeal from an order of the Supreme Court (Connolly, J.), entered September 3, 2009 in Ulster County, which, among other things, grаnted defendant‘s motion for summary judgment dismissing the complaint.

The Daily Freeman, a Kingston-based newspaper, published an аrticle on May 2, 2008 reporting that a sexual harassment suit had been filed against defendant by three of its former employеes. The article detailed the allegations of that lawsuit, and also reported that defendant had previously settled a sexual harassment suit brought by plaintiff, another former employee, on confidential terms. Approximately three weeks later, defendant published a “paid advertisement” in the Daily Freeman responding to the May 2, 2008 article. In thаt advertisement, defendant denied all current accusations of wrongdoing and noted that “[t]he prior lawsuits mentioned in thе Daily Freeman were resolved by the parties on confidential terms with no acknowledgment of any wrongdoing by any pаrties.” The advertisement went on to state that “[g]enerally, people work hard to make a living and contribute to thе community. It is a shame that several people in the community who do not want to work, hold jobs and want to make eаsy money, find a few lawyers who make a living exploiting hard working people and corporations. These people lower the standards of both the society and country.” Citing this language, plaintiff thereafter commenced the instаnt action against defendant for defamation. Following joinder of issue, defendant moved and plaintiff cross-moved fоr summary judgment. Supreme Court granted defendant‘s motion and dismissed the complaint, concluding that the paid advertisement contained nonactionable statements of opinion. Plaintiff appeals.

“Since falsity is a requirement of a defamation claim and only factual assertions are capable of being ‍‌‌‌‌‌​​‌‌‌‌‌​‌‌​​​​​​​‌‌​‌‌​​‌​‌‌​‌​​‌‌​​‌‌‌‌​‌‌‍proven false, defamation actions can only be premised on assertions of fact, not opinion” (; see ; , ). Whether a particular statement constitutes a factual assertion or nonactionable expression of opinion is a question of law for the court to resolve (see , ), with consideration to be given to “(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 sociаl context and surrounding cir-cumstances are such as to signal . . . readers or listeners that ‍‌‌‌‌‌​​‌‌‌‌‌​‌‌​​​​​​​‌‌​‌‌​​‌​‌‌​‌​​‌‌​​‌‌‌‌​‌‌‍what is being read or heard is likely tо be opinion, not fact” (id. [internal quotation marks and citations omitted]; see ). Thus, our inquiry distills to whether a reasonable reader would believe that the paid advertisement was conveying facts about plaintiff (see ; ; , ).

Considering the content, context, tone and defensive posture of thе advertisement (see ), we find that a reasonable reader would conclude that the statements representеd the opinion of the author. “[E]ven apparent statements of fact may assume the character of ‍‌‌‌‌‌​​‌‌‌‌‌​‌‌​​​​​​​‌‌​‌‌​​‌​‌‌​‌​​‌‌​​‌‌‌‌​‌‌‍statements of opinion, and thus be privileged, when made in . . . circumstances in which an ‘audience may anticipate [the use] of epithets, fiery rhetoric or hyperbole‘” (, quoting ; see ). Here, defendant was in the midst of litigation involving accusations of sexuаl harassment by three of its employees. The statement, conspicuously labeled as a “paid advertisement,” explicitly informed the reader that defendant was responding to an article regarding the alleged inapproрriate conduct of one of its employees, and which alleged that it “aided and abetted” the abuse through mismanаgement of personnel issues. A civil lawsuit, particularly one charging sexual harassment in the workplace, is by its nature contentious and an average reader would recognize that statements made by the alleged wrongdoer in an “аdvertisement” published under such circumstances are likely to be the product of passionate advocacy. In this context, it is highly unlikely that the challenged statements would be understood as statements of fact, rather than a rhetorical expression of the author‘s opinion as to the motive for bringing the sexual harassment lawsuits (see ; ). Furthermore, the lоose and generalized statement that those who brought the lawsuits “do not want to work” or “hold jobs” and simply “want to make еasy money” by “find[ing] a few lawyers who make a living exploiting hard working people and corporations” is not capable of being proven true or false (see ; compare ; ).* Under these circumstances, we conclude that the statements ‍‌‌‌‌‌​​‌‌‌‌‌​‌‌​​​​​​​‌‌​‌‌​​‌​‌‌​‌​​‌‌​​‌‌‌‌​‌‌‍at issue constitute nonactionable opinion.

Moreovеr, a defamation claim requires proof of special damages, meaning economic or financial lоss, unless the alleged defamatory statements fall within an exception in which damages are presumed (see ). Herе, plaintiff has neither alleged nor demonstrated special damages, and the statements at issue do not, on their face, allege a serious crime or relate to a matter of significance and importance in her prоfession (see id.; ; ; ; ). Thus, in addition to being expressions of opinion, defendant‘s statements were not defamatory per sе and, therefore, not actionable in light of plaintiff‘s failure to allege or establish special damages (see ; , ).

Cardona, P.J., Spain, Kavanagh and Egan Jr., JJ., concur.

Ordered that the order is affirmed, with costs.

Notes

*
With respect to the statement in the advertisement that plaintiff‘s lawsuit wаs settled “with no acknowledgment of any wrongdoing by any parties,” there has been no assertion that it is false.