Commercial Division Blog

Posted: July 11, 2022 / Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. Turner / Categories Commercial, Defamation

Opinions Are Not Defamatory Even If Offensive

On April 1, 2022, in Lewis v. Schuster, Index No. 157975/2020, Justice Andrea Masley of the New York County Commercial Division dismissed a defamation action brought by a former partner of a law firm who was terminated after being accused of sexual misconduct. The former partner sued both the law firm and several of its partners for wrongful termination and later, in an amended complaint, defamation.  In this action, the former (terminated) partner sued an attorney representing one of the law partners for allegedly defamatory statements made to the New York Law Journal which wrote an article covering the amended complaint. In dismissing the defamation action against the attorney, the Court explained:

The elements of a claim for defamation are a false statement, published without privilege or authorization to a third party, constituting fault as judged by, at a minimum, a negligence standard, and it must either cause special harm or constitute defamation per se. CPLR 3016 (a) requires that in a defamation action, the particular words complained of ... be set forth in the complaint.

In evaluating whether a cause of action for defamation is successfully pleaded, the words must be construed in the context of the entire statement or publication as a whole, tested against the understanding of the average reader, and if not reasonably susceptible of a defamatory meaning, they are not actionable and cannot be made so by a strained or artificial construction. [Clouds will not strain to find defamation where none exists. Loose, figurative or hyperbolic statements, even if deprecating the plaintiff, are not actionable." (Dillon v City of NY, 261 AD2d 34, 38, 704 N.Y.S.2d 1 [1st Dept 1999] [internal quotation marks and citations omitted].)

Schuster asserts that the statements in the Article are expressions of his opinion, and not assertions of fact, deeming them privileged. "Whether a particular statement constitutes an opinion or an objective fact is a question of law." (Mann v Abel, 10 NY3d 271, 276, 885 N.E.2d 884, 856 N.Y.S.2d 31 [2008] [citation omitted].) When distinguishing fact from opinion, a court should consider the following: "(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 ... readers or listeners that what is being read or heard is likely to be opinion, not fact." (Id. [internal quotation marks and citation omitted].) "A pure opinion may take one of two forms. It may be 'a statement of opinion which is accompanied by a recitation of the facts upon which it is based,' or it may be '[a]n opinion not accompanied by such a factual recitation' so long as 'it does not imply that it is based upon undisclosed facts." (Davis v Boeheim, 24 NY3d 262, 269, 998 N.Y.S.2d 131, 22 N.E.3d 999 [2014], quoting Steinhilber v Alphonse, 68 NY2d 283, 289, 501 N.E.2d 550, 508 N.Y.S.2d 901 [1986] [citation omitted].)

Schuster's first statement that "the filing was nothing more than an 'attempt to deflect' [Doe]'s allegations of sexual assault" is an expression of opinion speculating why Lewis filed the amended complaint in the Doe Action. Schuster's second statement that [i]nstead of simply defending against the allegations in the federal court action as any innocent person would, Mr. Lewis amended his complaint in this action to provide a vehicle to further spread lies about Ms. [Doe] and others in the hope his own conduct would be overlooked" is also an opinion clearly speculating as to why Schuster believed Lewis filed the amended complaint. Finally, Schuster's third statement that "[i]ndeed, Mr. Lewis amended his complaint because he knew that raising these baseless, unfounded allegations in his answer to the federal action would not be tolerated by a federal judge" is also an opinion. Once again, Schuster was clearly giving his opinion as to why he believed Lewis amended the complaint.

Looking at the statements in context of the Article as a whole, a reasonable reader would have no reason to believe that the statements at issue were conveying facts about plaintiff. (Id. at 270 [citation omitted].) Further, these statements are not mixed opinions, implying that they are "based upon facts which justify the opinion but are unknown to those reading or hearing it." (Id. at 269 [internal quotation marks and citation omitted].) No matter how offensive these statements are to Lewis, they are "not 'reasonably susceptible of a defamatory connotation." (Bacon v Nygard, 189 AD3d 530, 531, 136 N.Y.S.3d 297 [1st Dept 2020] [citation omitted].) All remaining arguments have been considered. Schuster's motion to dismiss is granted.

The attorneys at Schlam Stone & Dolan frequently litigate defamation claims. Contact the Commercial Division Blog Committee at if you or a client have questions concerning such issues.