| Halstead v Strauss |
| 2010 NY Slip Op 05731 [74 AD3d 1283] |
| June 29, 2010 |
| Appellate Division, Second Department |
| Thomas Halstead, Plaintiff, v J. William Strauss,Defendant. (Action No. 1.) Thomas Halstead, Respondent, v Paul Brokaw et al., Appellants.(Action No. 2.) Julia Brokaw, Plaintiff, v Thomas Halstead, Defendant. (Action No.3.) |
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In three related actions, inter alia, to recover damages for defamation, the defendants inaction No. 2 appeal from an order of the Supreme Court, Dutchess County (Sproat, J.), datedJuly 6, 2009, which denied their motion for summary judgment dismissing the complaint in thataction.
Ordered that the order is reversed, on the law, with costs, and the motion of the defendants inaction No. 2 for summary judgment dismissing the complaint in that action is granted.
"The essence of the tort of [defamation] is the publication of a statement about an individualthat is both false and defamatory. Since falsity is a sine qua non of a [defamation] claimand since only assertions of fact are capable of being proven false . . . a libel actioncannot be maintained unless it is premised on . . . assertions of fact," ratherthan on assertions of opinion (Brian v Richardson, 87 NY2d 46, 50-51 [1995]). Thedetermination of whether a statement is one of opinion or of fact is to be made by the court(see Gross v New York Times Co., 82 NY2d 146, 153 [1993]). In making thatdetermination, relevant factors are "(1) whether the specific language in issue has a precisemeaning which is readily understood; (2) whether the statements are capable of being proventrue or false; and (3) whether either the full context of the communication in which the statementappears or the broader social context and surrounding circumstances are such as to 'signal. . . readers or listeners that what is being read or heard is likely to be opinion, notfact' " (Gross v New York Times Co., 82 NY2d at 153, quoting Steinhilber vAlphonse, 68 NY2d 283, 292 [1986]). A "statement of opinion that is accompanied by arecitation of the facts on which it is based or one that does not imply the existence of undisclosedunderlying facts" is not actionable as defamation (Gross v New York Times Co., 82NY2d at 153-154).[*2]
The defendants in action No. 2 made a prima facieshowing of entitlement to judgment as a matter of law (see Alvarez v Prospect Hosp., 68NY2d 320, 325 [1986]) by proffering evidence sufficient to establish, as a matter of law, thattheir alleged statements constituted statements of opinion, and not of fact (see Bernard vGrenci, 48 AD3d 722, 723 [2008]; Miness v Alter, 262 AD2d 374 [1999]; Ferrisv Loyal Order of Moose Oneonta Lodge No. 465, 259 AD2d 914, 915 [1999]; cf. Clark vSchuylerville Cent. School Dist., 24 AD3d 1162, 1164 [2005]). In opposition, the plaintiff inaction No. 2 failed to raise a triable issue of fact. Accordingly, the Supreme Court should havegranted the motion of the defendants in action No. 2 for summary judgment dismissing thecomplaint in that action. Skelos, J.P., Eng, Hall and Lott, JJ., concur.