ROCKWELL CAPITAL PARTNERS INC v. Derwin A. Wallace, et al., Defendants. (2019)

Order, Supreme Court, New York County (Robert David Kalish, J.), entered January 9, 2019, which, insofar as appealed from as limited by the briefs, granted defendant HempAmericana, Inc.'s CPLR 3211(a)(7) motion to dismiss plaintiffs' defamation claims, unanimously affirmed, without costs.

This defamation action arises out of statements made about plaintiffs Rockwell Capital Partners, Inc. and Northbridge Financial, Inc. (Northbridge) by the Chief Executive Officer of defendant HempAmericana, Inc. (HempAmericana), nonparty Salvador Rosillo, in an interview published in CannaInvestor Magazine (the Magazine).  Plaintiffs specifically object to Rosillo's characterization of the subject deal as “toxic”;  implication that plaintiffs were the only reason for HempAmericana's financial troubles and low stock prices;  and allegedly inaccurate reference to Northbridge as being included in the deal.

The court properly granted the motion to dismiss the defamation claims.  Rosillo's characterization of the deal as “toxic” constitutes a non-actionable statement of opinion.  This language is “[l]oose, figurative or hyperbolic” and lacks a precise meaning (Dillon v. City of New York, 261 A.D.2d 34, 38, 704 N.Y.S.2d 1 [1st Dept. 1999];  see generally Brian v. Richardson, 87 N.Y.2d 46, 51, 637 N.Y.S.2d 347, 660 N.E.2d 1126 [1995];  Pontos Renovation v. Kitano Arms Corp., 226 A.D.2d 191, 191–192, 640 N.Y.S.2d 525 [1st Dept. 1996];  Intellect Art Multimedia, Inc. v. Milewski, 24 Misc.3d 1248[A], 2009 WL 2915273, *4–5 [Sup. Ct., N.Y. County 2009] ).  Moreover, given its publication in an industry investor magazine, it is best interpreted as an attempt by HempAmericana's CEO to explain his company's past poor performance and encourage future investment (see Brian, 87 N.Y.2d at 51–54, 637 N.Y.S.2d 347, 660 N.E.2d 1126;  Steinhilber v. Alphonse, 68 N.Y.2d 283, 294–295, 508 N.Y.S.2d 901, 501 N.E.2d 550 [1986];  Sandals Resorts Intl. Ltd. v. Google, Inc., 86 A.D.3d 32, 41–45, 925 N.Y.S.2d 407 [1st Dept. 2011] ).

Contrary to plaintiffs' claim, there is no implication that the “toxic deal” statement was based on undisclosed facts, so as to bring it within the realm of mixed opinion (see generally Steinhilber, 68 N.Y.2d at 289–290, 508 N.Y.S.2d 901, 501 N.E.2d 550).  Rather, Rosillo made clear that this characterization was based on the drop in share prices resulting from the deal—a fact plaintiffs do not dispute.

We have considered plaintiffs' remaining arguments and find them unavailing.