| Rossi v Attanasio |
| 2008 NY Slip Op 01684 [48 AD3d 1025] |
| February 28, 2008 |
| Appellate Division, Third Department |
| Frank Rossi et al., Appellants, v Dean M. Attanasio et al.,Respondents, et al., Defendants. |
—[*1] Hiscock & Barclay, L.L.P., Albany (William A. Hurst of counsel), for respondents.
Peters, J. Appeal from an order of the Supreme Court (Nolan, Jr., J.), entered January 16,2007 in Saratoga County, which, among other things, granted the motion of defendants Dean M.Attanasio and Kimberly L. Attanasio for summary judgment dismissing the complaint againstthem.
In April 2004, plaintiff Frank Rossi (hereinafter plaintiff), a real estate developer, sold anewly constructed house owned by plaintiff Rose Marie Rossi, his wife, to defendants Dean M.Attanasio and Kimberly L. Attanasio (hereinafter collectively referred to as defendants). Afterclosing, defendants, owners of a swimming pool business who sought to install a "showcase"pool directly behind their house, discovered that the lot on which their house was situated did notextend as far back as they had been led to believe by plaintiff and his real estate agent andanimosities ensued. A story about the conflict appeared on a news broadcast featuringdefendants, during which plaintiff was characterized as a "swindling developer."
In May 2004, defendants filed a notice of pendency on the disputed land and commenced anaction against plaintiffs alleging fraudulent misrepresentation and fraud.[FN1] Shortly [*2]thereafter, Kimberly Attanasio (hereinafter Attanasio)approached plaintiff as he was speaking to Chittaranjan Prasad, a potential customer, in thedriveway of a house in the same development. After attempting in vain to give plaintiff a "punchlist" of unfinished items in her home, Attanasio allegedly unleashed a verbal assault on plaintiffwhich included calling him names such as "crook" and "shyster" and warning Prasad to "watchwhat you are doing, you are making a mistake," and admonishing him not to do business withplaintiff because "he is a liar and a thief, he robbed me o[f] my land."
Plaintiffs commenced this action against defendants and others[FN2] in November 2004, asserting claims of slander per se, libel per se and malicious prosecution. Alldefendants moved for summary judgment on the various claims and plaintiffs cross-moved toamend the complaint's caption. As relevant here, Supreme Court awarded defendants summaryjudgment, dismissing plaintiffs' third cause of action for slander per se arising out of thedriveway incident and fourth cause of action for malicious prosecution, and denied plaintiffs'cross motion.[FN3] Plaintiffs now appeal.
Plaintiffs first contend that Supreme Court erred in awarding defendants summary judgmentwith regard to the third cause of action, slander per se, because Attanasio's alleged statementsconstituted mixed opinion, not rhetorical hyperbole. Whether a statement constitutes pureopinion or an actionable factual assertion is a question of law for the court in the first instanceand must be answered on the basis of what the reasonable listener would understand thestatement to mean, first considering the content of the whole communication, including its toneand purpose (see 600 W. 115th St. Corp. v Von Gutfeld, 80 NY2d 130, 139 [1992],cert denied 508 US 910 [1993]; Immuno AG. v Moor-Jankowski, 77 NY2d 235,254 [1991], cert denied 500 US 954 [1991]; Steinhilber v Alphonse, 68 NY2d283, 290 [1986]; Versaci v Richie,30 AD3d 648, 648-649 [2006], lv denied 7 NY3d 710 [2006]). A mixed statement ofopinion and fact is actionable inasmuch as it gives rise to the inference that such statement isbased upon certain facts known to the speaker that are undisclosed to the listener and aredetrimental to the person who is the subject of the opinion (see Gross v New York TimesCo., 82 NY2d 146, 153-154 [1993]; Steinhilber v Alphonse, 68 NY2d at 289;Ferris v Loyal Order of Moose Oneonta Lodge [*3]No.465, 259 AD2d 914, 915 [1999], lv dismissed 94 NY2d 838 [1999], lv dismissedand denied 94 NY2d 873 [1999]).[FN4] Thus, an accusation of criminal conduct may be considered nonactionable rhetorical hyperboleonly when no reasonable person would believe that the speaker was accusing the subject of anactual criminal offense or when the circumstances and general tenor of the remarks negate theimpression of a factual assertion (see Greenbelt Cooperative Publishing Assn., Inc. vBresler, 398 US 6, 14 [1970]; 600 W. 115th St. Corp. v Von Gutfeld, 80 NY2d at143; Trustco Bank of N.Y. v Capital Newspaper Div. of Hearst Corp., 213 AD2d 940,942-943 [1995]). Moreover, "[a] statement which concerns a person in his [or her] trade orbusiness and tends to injure him [or her] therein is actionable per se" (Vacca v General Elec.Credit Corp., 88 AD2d 740, 740 [1982]; accord Afftrex, Ltd. v General Elec. Co.,161 AD2d 855, 856 [1990]; see Liberman v Gelstein, 80 NY2d 429, 435 [1992]; Yammine v DeVita, 43 AD3d 520,521 [2007]).
We agree with plaintiffs that, here, Attanasio's alleged statements during the drivewayincident constituted an actionable mixed statement of opinion and fact. They represented morethan mere rhetorical hyperbole, inasmuch as the record demonstrates that she actually believedthat plaintiff had lied to and defrauded defendants and, in layperson's terms, "robbed" them ofland that he had allegedly promised to them. Moreover, Attanasio made certain statementsdirectly to Prasad, warning him not to engage in business with plaintiff. The average person, withknowledge that Attanasio had just purchased real estate from plaintiff, would reasonably believethat the opinions expressed by her were based upon facts known by her and undisclosed duringthe course of the communication.
Supreme Court erred when it used a subjective test in place of the objective standard todetermine whether a reasonable listener would infer that Attanasio's opinions were based onassertions of fact (see Gross v New York Times Co., 82 NY2d at 154-155; 600 W.115th St. Corp. v Von Gutfeld, 80 NY2d at 143). Supreme Court held that her statementsconstituted rhetorical hyperbole, in part, because witness Patrick Popolizio dismissed the incidentand Prasad stated during a deposition that he did not recall the incident. However, the recordshows that Popolizio was a fellow real estate developer who had known and done business withplaintiff for many years, thus it follows that this incident would be easily dismissed by him.Furthermore, despite Prasad's claimed lack of recollection, plaintiff stated that, immediately afterthe incident, Prasad began to question him about finances and plaintiff's ability to build the houseand plaintiff's real estate agent stated that Prasad contacted her after the incident and was upsetand concerned about plaintiff's argument with a woman who had just purchased a house fromhim. As such, we find that Attanasio's statements were not rhetorical hyperbole, but a mixedstatement of opinion and fact such that a reasonable person would have believed that herstatements were supported by facts undisclosed to the listener (see Steinhilber vAlphonse, 68 NY2d at 289; Ferris v Loyal Order of Moose Oneonta Lodge No. 465,259 AD2d at 915).
We disagree with plaintiffs, however, that Supreme Court erred in dismissing their [*4]cause of action for malicious prosecution. To prove maliciousprosecution based upon a prior civil action, a plaintiff must show that a prior proceedingterminated in its favor, a patent lack of probable cause for that proceeding, malice and specialdamages (see Perryman v Village ofSaranac Lake, 41 AD3d 1080, 1081 [2007]; Fink v Shawangunk Conservancy, Inc., 15 AD3d 754, 754 [2005]).Here, lack of probable cause was not patent since evidence relied upon by defendants in bringingthe action included alleged misrepresentations by plaintiff and his realtor and the fact that grassand trees had been planted and a sprinkler head installed beyond the disputed property line of thehome that defendants purchased.
Mercure, J.P., Spain, Lahtinen and Malone Jr., JJ., concur. Ordered that the order ismodified, on the law, without costs, by reversing so much thereof as granted defendants' motiondismissing the third cause of action against defendant Kimberly L. Attanasio; motion denied tothat extent; and, as so modified, affirmed.
Footnote 1: This action was ultimatelydismissed in its entirety by Supreme Court (Kramer, J.) as being barred by the statute of frauds.
Footnote 2: Plaintiffs also commenced thisaction against Daniel Levy, the news reporter, Young Broadcasting of Albany, Inc., the owner ofthe television station, and Young Broadcasting, Inc., the parent company of the station owner.
Footnote 3: While plaintiffs' notice of appealstates that they are appealing from the denial of their cross motion, we deem such issueabandoned inasmuch as it was not addressed in their appellate brief (see Mrozinski v St.John, 304 AD2d 950, 951 [2003]).
Footnote 4: This is in contrast to a statementof pure opinion, which is accompanied by a recitation of the facts on which it is based, or impliesthat it is not based upon any facts at all (see Steinhilber v Alphonse, 68 NY2d at 289;Trustco Bank of N.Y. v Capital Newspaper Div. of Hearst Corp., 213 AD2d 940, 941[1995]).