WANAMAKER v. VHA INC VHA (2005)

Plaintiff commenced this action alleging various causes of action, including defamation, against defendant Jeanne McGrayne, her employer, defendant VHA, Inc. (VHA), and defendant Faxton-St.   Luke's Healthcare, formerly known as St. Luke's Memorial Hospital (Hospital).   In the course of her employment with VHA, McGrayne posed as a prospective patient who visited various units at the Hospital without notifying anyone of her identity, for the purpose of evaluating the quality of care.   In a report she prepared for VHA, which was provided to the Hospital, McGrayne described an encounter with a nurse at the Hospital, later identified as plaintiff, in which McGrayne “[s]ensed a ‘controlling’ behavior by the nurse” and McGrayne's “impression was that this nurse must think that she is the ‘surgery Nazi’-‘No paperwork-No surgery!’ ” Supreme Court granted in part the motions of defendants for summary judgment, dismissing all of the causes of action against them except for the defamation cause of action.   We reverse the order insofar as appealed from and grant summary judgment to defendants dismissing that cause of action as well.

The court did not abuse its discretion in considering the late motion of the Hospital, counsel for the Hospital having established good cause (see CPLR 3212 [a];  Luciano v. Apple Maintenance & Servs., 289 A.D.2d 90, 91, 734 N.Y.S.2d 153).   We further conclude that the reference in the report to plaintiff as the “surgery Nazi” was rhetorical hyperbole and is not actionable as a matter of law (see Milkovich v. Lorain Journal Co., 497 U.S. 1, 17, 110 S.Ct. 2695, 111 L.Ed.2d 1;  Trustco Bank of N.Y. v. Capital Newspaper Div. of Hearst Corp., 213 A.D.2d 940, 942, 624 N.Y.S.2d 291;  DRT Constr. Co. v. Lenkei, 176 A.D.2d 1229, 1229-1230, 576 N.Y.S.2d 724, lv. denied 79 N.Y.2d 753, 581 N.Y.S.2d 281, 589 N.E.2d 1263).   Additionally, the alleged defamatory statement in the report is opinion and is incapable of being proven true or false (see Brian v. Richardson, 87 N.Y.2d 46, 53-54, 637 N.Y.S.2d 347, 660 N.E.2d 1126;  Steinhilber v. Alphonse, 68 N.Y.2d 283, 286, 508 N.Y.S.2d 901, 501 N.E.2d 550;  Lukashok v. Concerned Residents of N. Salem, 160 A.D.2d 685, 686, 554 N.Y.S.2d 39;  cf. Curry v. Roman, 217 A.D.2d 314, 319, 635 N.Y.S.2d 391).   In particular, we conclude that, under the circumstances of this case, the reference to plaintiff as the “surgery Nazi” is an expression of opinion and thus is not actionable as a matter of law (see Schwartz v. Nordstrom, Inc., 160 A.D.2d 240, 241, 553 N.Y.S.2d 684, appeal dismissed 76 N.Y.2d 845, 560 N.Y.S.2d 129, 559 N.E.2d 1288, lv. denied 76 N.Y.2d 711, 563 N.Y.S.2d 62, 564 N.E.2d 672).

It is hereby ORDERED that the order insofar as appealed from be and the same hereby is unanimously reversed on the law without costs, the motions are granted in their entirety and the complaint is dismissed.

MEMORANDUM: