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Current Developments in the Commercial Divisions of the
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Posted: January 5, 2017

Defamation Action Based on Claims Made in Fight to Control Co-op Board Dismissed

On December 28, 2016, the Second Department issued a decision in Holliswood Owners Corp. v. Rivera, 2016 NY Slip Op. 08843, dismissing defamation claims made in the context of a fight to control a co-op board, explaining:

Since falsity is a necessary element of a defamation cause of action and only facts are capable of being proven false, it follows that only statements alleging facts can properly be the subject of a defamation action. Distinguishing between fact and opinion is a question of law for the courts, to be decided based on what the average person hearing or reading the communication would take it to mean.

In distinguishing between facts and opinion, the factors the court must consider are (1) whether the specific language has a precise meaning that is readily understood, (2) whether the statement is capable of being proven true or false, and (3) whether the context in which the statement appears signals to readers that the statement is likely to be opinion, not fact. The dispositive inquiry is whether a reasonable reader could have concluded that the statements were conveying facts about the plaintiff.

In this case, the challenged statements are nonactionable opinion. Many of the statements do not have a precise meaning; others are hyperbolic and incapable of being proven true or false. In the context of a dispute regarding control of the Co-op board, no reasonable person could have concluded that the defendants’ statements were conveying facts about the plaintiffs. In addition, the plaintiffs’ allegations with regard to statements allegedly made to a landscaper by two unspecified defendants fail to meet the specificity requirements of CPLR 3016(a), even considering the affidavit of the landscaper submitted by the plaintiffs.

(Internal quotations and citations omitted).

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