FERNANDES v. FERNANDES (2025)

DECISION & ORDER

In an action to recover damages for defamation, the plaintiff appeals from an order of the Supreme Court, Suffolk County (David T. Reilly, J.), dated August 23, 2022.  The order granted the defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

The plaintiff commenced this action against his brother, asserting causes of action sounding in defamation.  As alleged, the defendant made statements in front of others that the plaintiff “owes me more than one-half a million dollars,” the plaintiff “robbed me,” and the plaintiff “robbed me for over one million dollars,” among similar remarks.  The defendant moved for summary judgment dismissing the complaint.  By order dated August 23, 2022, the Supreme Court granted the motion.  The plaintiff appeals.

“The elements of a cause of action to recover damages for defamation are (1) a false statement that tends to expose a person to public contempt, hatred, ridicule, aversion, or disgrace, (2) published without privilege or authorization to a third party, (3) amounting to fault as judged by, at a minimum, a negligence standard, and (4) either causing special [damages] or constituting defamation per se” (Laguerre v. Maurice, 192 A.D.3d 44, 50, 138 N.Y.S.3d 123;  see Davidoff v. Kaplan, 217 A.D.3d 918, 919–920, 192 N.Y.S.3d 154).  Special damages need not be alleged or proven if a plaintiff can establish that the alleged defamatory statements constitute defamation per se (see Liberman v. Gelstein, 80 N.Y.2d 429, 435, 590 N.Y.S.2d 857, 605 N.E.2d 344;  Whelan v. Cuomo, 220 A.D.3d 979, 981, 198 N.Y.S.3d 739).  Here, the plaintiff takes the position that the statements at issue were defamatory per se, and, thus, he need not allege or prove special damages.  As relevant here, a false statement constitutes defamation per se if it charges a plaintiff with a serious crime or tends to injure a plaintiff's trade, business, or profession (see Liberman v. Gelstein, 80 N.Y.2d at 435, 590 N.Y.S.2d 857, 605 N.E.2d 344;  Laguerre v. Maurice, 192 A.D.3d at 50, 138 N.Y.S.3d 123).

The issue of whether particular words are defamatory presents a legal question to be resolved by the court (see Aronson v. Wiersma, 65 N.Y.2d 592, 593, 493 N.Y.S.2d 1006, 483 N.E.2d 1138;  Laguerre v. Maurice, 192 A.D.3d at 50, 138 N.Y.S.3d 123).  “The words must be construed in the context of the entire statement or publication as a whole, tested against the understanding of the average reader [or listener]” (Aronson v. Wiersma, 65 N.Y.2d at 594, 493 N.Y.S.2d 1006, 483 N.E.2d 1138;  see Laguerre v. Maurice, 192 A.D.3d at 51, 138 N.Y.S.3d 123).

Here, the parties’ submissions demonstrated that the audience for the statements at issue included the parties’ friends and members of their church who understood that the defendant was speaking about money that his brother, the plaintiff, owed him.  In this context, the defendant made references to the plaintiff owing him at least half a million dollars and “robbing” him.  Under all the circumstances and giving due consideration to the context in which they were made, these statements could not be reasonably understood as a charge that the plaintiff had committed a serious crime (see generally Liberman v. Gelstein, 80 N.Y.2d at 435, 590 N.Y.S.2d 857, 605 N.E.2d 344).  Further, these statements did not tend to injure the plaintiff's trade, business, or profession.  This category of defamation per se “is limited to defamation of a kind incompatible with the proper conduct of the business, trade, profession or office itself.  The statement must be made with reference to a matter of significance and importance for that purpose, rather than a more general reflection upon the plaintiff's character or qualities” (id. at 436, 590 N.Y.S.2d 857, 605 N.E.2d 344 [internal quotation marks omitted]).  Here, the statements at issue “constituted nothing more than a general reflection upon the [plaintiff's] character or qualities” (Rufeh v. Schwartz, 50 A.D.3d 1002, 1005, 858 N.Y.S.2d 194).

Accordingly, the Supreme Court properly determined that the statements were not defamatory per se and granted the defendant's motion for summary judgment dismissing the complaint.

DILLON, J.P., GENOVESI, MILLER and VOUTSINAS, JJ., concur.