AGUINAGA v. 342 EAST 72ND STREET CORPORATION (2005)

Order, Supreme Court, New York County (Debra A. James, J.), entered July 9, 2003, which denied defendants' pre-answer motion to dismiss the complaint, unanimously reversed, on the law, without costs, and the motion granted.   The Clerk is directed to enter judgment in favor of defendants dismissing the complaint.

This defamation action was the culmination of disputes between plaintiff, a resident and board member of a housing cooperative corporation, and defendant Richard Berry, also a board member and the president of the corporation, concerning the daily operations and management of the building.   The disputes seemed to end with Berry's resignation and a letter to the tenant shareholders explaining the reasons for his action.   Among the stated reasons were an “intractable impasse” between Berry and “a Board Member and her husband,” her retention of an attorney, and their breaches of the “confidentiality of [board] meetings” by relaying the content of those meetings to tenant shareholders.   Berry did not specifically identify plaintiff, and he qualified his statements as being based on his belief.   Subsequently, plaintiff published a letter to the same audience, asserting her right to express her own opinions, corroborating that the content of board discussions had been shared with tenant shareholders as Berry had surmised, and providing plaintiff's justification for so doing.

Plaintiff's action for damages and injunctive relief rests upon her allegation that Berry's resignation letter defamed her by stating that she had violated her fiduciary obligations as a director when she shared confidential communications.   While defendants have prematurely raised the qualified common-interest privilege in their pre-answer motion (cf. Demas v. Levitsky, 291 A.D.2d 653, 661-662, 738 N.Y.S.2d 402 [2002], lv. dismissed 98 N.Y.2d 728, 749 N.Y.S.2d 477, 779 N.E.2d 188 [2002];  Acosta v. Vataj, 170 A.D.2d 348, 566 N.Y.S.2d 49 [1991] ), their motion should have been granted by the IAS court, since plaintiff is not identified in Berry's letter of resignation and, in any event, it is clear that his statements were expressions of non-actionable opinion that were corroborated by plaintiff herself.

Whether a particular statement constitutes an opinion or an objective fact is a question of law (see Rinaldi v. Holt, Rinehart & Winston, 42 N.Y.2d 369, 381, 397 N.Y.S.2d 943, 366 N.E.2d 1299 [1977], cert. denied 434 U.S. 969, 98 S.Ct. 514, 54 L.Ed.2d 456 [1977] ).   The allegedly harmful words must be construed in context and interpreted reasonably, and are only actionable if susceptible of a defamatory meaning.   Whether a writer is conveying facts which, if shown to be false, would be actionable is also a question of law (see Immuno AG. v. Moor-Jankowski, 77 N.Y.2d 235, 254-255, 566 N.Y.S.2d 906, 567 N.E.2d 1270 [1991], cert. denied 500 U.S. 954, 111 S.Ct. 2261, 114 L.Ed.2d 713 [1991] ).   In none of Berry's communications did he claim that plaintiff had breached the fiduciary obligation of a board member.   While plaintiff argues that Berry's statement that she “divulged” the “confidential” discussions held during board meetings constituted an attack on her ability to function as a suitable board member, her own contemporaneous reply to Berry's resignation letter amply demonstrates that she not only divulged the content of such conversations but did so on principle.   It is clear that one source of contention between plaintiff and Berry was the issue of whether board conversations should be held in confidence amongst participants, along with plaintiff's view, at the time, that she was justified.   To transform this policy dispute into a tort claim would only provide one of the contestants with another method of continuing their dispute.   Defamation actions serve the purpose of compensating one who has been actually damaged by libel or slander.   Where, as here, plaintiff admits the truth of an expressed opinion, the words cannot be actionable.