ROBERT BIEBER PLAINTIFF RESPONDENT v. TOWN OF HAMBURG DEFENDANT APPELLANT (2026)

MEMORANDUM AND ORDER

It is hereby ORDERED that the order insofar as appealed from is unanimously reversed on the law without costs, the cross-motion of plaintiff is denied, the motion of defendant is granted and the complaint is dismissed.

Memorandum: Defendant-third-party plaintiff Town of Hamburg (Town) appeals from an order insofar as it denied the Town's motion for summary judgment dismissing the complaint and granted plaintiff's cross-motion for summary judgment on the complaint, which asserts a single cause of action, for slander per se.

Plaintiff and third-party defendant, a Town employee (employee), became embroiled in a personal dispute after the employee prevented plaintiff from using the Town's equipment to move certain gear associated with a concession stand business that plaintiff operated on property maintained by the Town. The employee allegedly undertook that action in retribution for plaintiff's decision to hold a fundraiser for the employee's opponent in a campaign for public office. Plaintiff exacerbated the dispute by posting signs on the beach criticizing the employee. A confrontation ensued, during which the employee accused plaintiff of either “playing politics or [being] a fucking pedophile.” After plaintiff denied playing politics, the employee responded “Then you're a fucking pedophile” and stated, “I'm going to Town right now and fucking see if I can get you arrested for being a fucking pedophile. You're taking pictures of 10-year-old kids, are you crazy or what?” We agree with the Town that the employee's statements constituted non-actionable opinion and that Supreme Court thus erred in granting the cross-motion and denying the motion. We therefore reverse the order insofar as appealed from.

In determining whether the employee's statements during the incident are actionable, we must consider the statements “in [their] applicable context” (Gross v New York Times Co., 82 NY2d 146, 155 [1993]) and “in terms of [their] effect upon the average listener” (Park v Capital Cities Communications, 181 AD2d 192, 195 [4th Dept 1992], appeal dismissed 80 NY2d 1022 [1992], lv dismissed in part & denied in part 81 NY2d 879 [1993]).

“Expressions of opinion, as opposed to assertions of fact, are deemed privileged and, no matter how offensive, cannot be the subject of an action for defamation” (Mann v Abel, 10 NY3d 271, 276 [2008], cert denied 555 US 1170 [2009]). “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 [2014] [internal quotation marks omitted]). “Whether a particular statement constitutes fact or opinion is a question of law” (Rinaldi v Holt, Rinehart & Winston, Inc., 42 NY2d 369, 381 [1977], rearg denied 42 NY2d 1015 [1977], cert denied 434 US 969 [1977]). “The dispositive inquiry ․ is whether a reasonable [listener] could have concluded that [the statements were] conveying facts about the plaintiff” (Gross, 82 NY2d at 152 [internal quotation marks omitted]).

To determine whether a reasonable listener would consider the statements to connote fact or nonactionable opinion, we must evaluate “(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 ․ listeners that what is being ․ heard is likely to be opinion, not fact” (Mann, 10 NY3d at 276 [internal quotation marks omitted]; see Brian v Richardson, 87 NY2d 46, 51 [1995]).

“Rather than sifting through a communication for the purpose of isolating and identifying assertions of fact, the court should look to the over-all context in which the assertions were made and determine on that basis whether the reasonable [listener] would have believed that the challenged statements were conveying facts about the ․ plaintiff” (Davis, 24 NY3d at 270 [internal quotation marks omitted]). Indeed, the court should consider “the circumstances and ․ the broader social context (i.e., the factual background leading to the [statement])” to determine whether the “message would be taken by the ordinary person not literally, but figuratively” (Steinhilber v Alphonse, 68 NY2d 283, 294 [1986]), particularly where an “audience may anticipate [the use] of epithets, fiery rhetoric or hyperbole” (id.; see Gross, 82 NY2d at 155; Crane-Hogan Structural Sys., Inc. v Belding, 142 AD3d 1385, 1386 [4th Dept 2016]; Gisel v Clear Channel Communications, Inc., 94 AD3d 1525, 1526-1527 [4th Dept 2012]).

Here, we conclude that the employee's inflammatory insults are nonactionable rhetorical hyperbole, particularly given the rhetorical manner in which the statements were uttered (see Rivas v Restaurant Assoc., Inc., 223 AD3d 634, 635 [1st Dept 2024]; see also Torain v Liu, 279 Fed Appx 46, 46-47 [2d Cir 2008]).

Entered: July 24, 2026

Ann Dillon Flynn

Clerk of the Court