CRIME VICTIMS CENTER INC v. LOGUE (2020)

DECISION & ORDER

In an action, inter alia, to recover damages for defamation, the defendant appeals from an order of the Supreme Court, Suffolk County (William B. Rebolini, J.), dated April 4, 2017. The order, insofar as appealed from, denied those branches of the defendant's motion which were pursuant to CPLR 3211(a)(7) to dismiss the first and second causes of action.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The plaintiff commenced this action, inter alia, to recover damages for defamation against the defendant, who posted certain comments about it on an internet blog and on Twitter. The defendant moved, among other things, pursuant to CPLR 3211(a)(7) to dismiss the first and second causes of action, sounding in defamation. In an order dated April 4, 2017, the Supreme Court denied those branches of the motion, and the defendant appeals.

Contrary to the defendant's contention, the challenged statements did not constitute pure opinions, which are not actionable as defamation (see Davis v. Boeheim, 24 N.Y.3d 262, 269, 998 N.Y.S.2d 131, 22 N.E.3d 999). “Whether a particular statement constitutes an opinion or an objective fact is a question of law” (Mann v. Abel, 10 N.Y.3d 271, 276, 856 N.Y.S.2d 31, 885 N.E.2d 884). “In distinguishing between facts and opinion, the factors the court must consider are (1) whether the specific language has a precise meaning that is readily understood, (2) whether the statements are capable of being proven true or false, and (3) whether the context in which the statement appears signals to readers that the statement is likely to be opinion, not fact” (Silverman v. Daily News, L.P., 129 A.D.3d 1054, 1055, 11 N.Y.S.3d 674; see Gross v. New York Times Co., 82 N.Y.2d 146, 153, 603 N.Y.S.2d 813, 623 N.E.2d 1163). Additionally, “an opinion that implies that it is based upon facts which justify the opinion but are unknown to those reading or hearing it, ․ is a mixed opinion and is actionable” (Davis v. Boeheim, 24 N.Y.3d at 269, 998 N.Y.S.2d 131, 22 N.E.3d 999 [internal quotation marks omitted] ).

Here, the defendant's statements—including, “I know which politician [the plaintiff] just bought off”; that the plaintiff received “millions of dollars in kickbacks”; and, that the plaintiff used specified government funds to “pad[ ]” or “line [the] pockets” of a certain government official who was advocating for legislation the plaintiff supported—under the circumstances, and in the context made, were actionable (see Kasavana v. Vela, 172 A.D.3d 1042, 1046, 100 N.Y.S.3d 82; Loder v. Nied, 89 A.D.3d 1197, 1199, 932 N.Y.S.2d 546).

Contrary to the defendant's further contention, the plaintiff did not fail to sufficiently plead actual malice, as is required if the plaintiff is determined to be a limited purpose public figure (see Huggins v. Moore, 94 N.Y.2d 296, 301, 704 N.Y.S.2d 904, 726 N.E.2d 456). The complaint alleged that the defendant made the challenged statements with knowledge of their falsity or, knowing that he had no reliable evidence or information supporting the statements, with reckless disregard for their truth (see id.). Those allegations are sufficient at this stage of the proceeding. “[A] plaintiff has no obligation to show evidentiary facts to support [his or her] allegations of malice on a motion to dismiss pursuant to CPLR 3211(a)(7)” (Shaw v. Club Mgrs. Assn. of Am., Inc., 84 A.D.3d 928, 931, 923 N.Y.S.2d 127 [internal quotation marks omitted]; see Sokol v. Leader, 74 A.D.3d 1180, 1182, 904 N.Y.S.2d 153), which merely tests the adequacy of the pleadings (see Davis v. Boeheim, 24 N.Y.3d at 268, 998 N.Y.S.2d 131, 22 N.E.3d 999).

Accordingly, we agree with the Supreme Court's determination denying those branches of the defendant's motion which were pursuant to CPLR 3211(a)(7) to dismiss the first and second causes of action.

DILLON, J.P., BALKIN, CONNOLLY and IANNACCI, JJ., concur.