DAVID WAHRENDORF AND MARY KATHLEEN WAHRENDORF PLAINTIFFS RESPONDENTS v. CITY OF OSWEGO DEFENDANT EDWARD HARRINGTON INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS THIRD WARD ALDERMAN OF OSWEGO CITY COUNCIL AND TRADITIONAL FAMILY BUILDERS INC DEFENDANTS APPELLANTS (2010)

MEMORANDUM AND ORDER

It is hereby ORDERED that the order insofar as appealed from is unanimously reversed on the law without costs, the motion of defendants Edward J. Harrington, individually and in his official capacity as Third Ward Alderman of the Oswego City Council, and Traditional Family Builders, Inc. is granted and the complaint against those defendants is dismissed.

Memorandum:  Plaintiffs commenced this action seeking damages for defamatory statements that allegedly were made by Edward J. Harrington (defendant) in two separate postings on a Web site registered to defendant and operated by him.   According to plaintiffs, defendant is “the Chairman and/or Chief Executive Officer” of defendant Traditional Family Builders, Inc. (TFB).  Supreme Court erred in denying the motion of defendant and TFB to dismiss the complaint against them for, inter alia, failure to state a cause of action (see CPLR 3211[a][7] ), on the ground that the statements at issue are constitutionally protected expressions of opinion.   In determining whether defendant's statements constitute actionable factual assertions as opposed to nonactionable opinions, it is necessary to “examine the content of the [statements as a] whole as well as [their] tone and [their] apparent purpose” (Steinhilber v. Alphonse, 68 N.Y.2d 283, 293;  see Brian v. Richardson, 87 N.Y.2d 46, 51).   Here, the tone of the statements at issue “is ironic, sarcastic and caustic;  ‘it is evident that the [statements were] intended to be invective expressed in the form of heavy-handed and nonsensical humor’ “ (Cook v. Relin, 280 A.D.2d 897, 898, quoting Steinhilber, 68 N.Y.2d at 293).   Defendant characterized plaintiffs as “slumlords” and “sociopaths” and referred to plaintiff David Wahrendorf as “Clarabell,” who was the clown on the Howdy Doody Show. Defendant also described one of plaintiffs' rental properties as a “garbage heap” and a “pig pen.”   We conclude that those statements “amounted to no more than name-calling or ․ general insult[s]” (DePuy v. St. John Fisher Coll., 129 A.D.2d 972, 973, lv denied 70 N.Y.2d 602), and were “clearly part of the attempt at humor prevailing throughout” (Steinhilber, 68 N.Y.2d at 293).   We conclude, therefore, that the allegedly defamatory statements are not actionable as a matter of law and thus that the court erred in denying the motion of defendant and TFB to dismiss the complaint against them for failure to state a cause of action.

Patricia L. Morgan

Clerk of the Court