| Springer v Almontaser |
| 2010 NY Slip Op 06081 [75 AD3d 539] |
| July 13, 2010 |
| Appellate Division, Second Department |
| Sara Springer et al., Appellants, v Dhabah Almontaser,Also Known as Debbie Almontaser, Respondent. |
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In an action to recover damages for defamation, the plaintiffs appeal, as limited by theirbrief, from so much of an order of the Supreme Court, Kings County (Bunyan, J.), dated May 29,2009, as granted the defendant's motion to dismiss the complaint pursuant to CPLR 3211 (a) (1)and (7).
Ordered that the order is modified, on the law, by deleting the provision thereof granting thatbranch of the defendant's motion which was to dismiss the complaint pursuant to CPLR 3211 (a)(1) and substituting therefor a provision denying that branch of the motion; as so modified, theorder is affirmed insofar as appealed from, with costs to the defendant.
In February 2007 the New York City Department of Education announced that it would opena public school devoted to the Arabic language and culture, and that the defendant would be itsprincipal. The plaintiffs led a public campaign against the school. Thereafter, in August 2007,the defendant resigned as the principal of the school. Following her resignation, the defendantgave a press conference on the steps of City Hall and accused the plaintiffs of conducting aferocious smear campaign against her, stalking her, and verbally assaulting her. The plaintiffsthen commenced the instant action alleging that the defendant defamed them when she statedthat they had stalked and verbally assaulted her.
A motion pursuant to CPLR 3211 (a) (1) to dismiss a complaint based on documentaryevidence may appropriately be granted "only where the documentary evidence utterly refutesplaintiff's factual allegations, conclusively establishing a defense as a matter of law" (Goshenv Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]; Yusin v Saddle Lakes Home OwnersAssn., Inc., 73 AD3d 1168 [2010]). "[T]o be considered 'documentary,' evidence mustbe unambiguous and of undisputed authenticity" (Fontanetta v John Doe 1, 73 AD3d 78, 86, citing Siegel, PracticeCommentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3211:10, at 21-22). Thenewspaper articles, printouts of web pages, and transcripts of radio and television interviewswhich were submitted by the defendant in support of that branch of her motion which waspursuant to CPLR 3211 (a) (1) were not "of undisputed authenticity" and, thus, did not qualify asdocumentary evidence. Therefore, the Supreme Court erred in granting that branch of thedefendant's motion which was to dismiss the complaint based upon documentary evidence.
Nevertheless, the Supreme Court properly granted that branch of the defendant's motionwhich was pursuant to CPLR 3211 (a) (7) to dismiss the complaint for failure to state a cause ofaction. The statements alleged to be defamatory must be viewed in their context to determinewhether a reasonable person would view them as conveying any facts about the plaintiff, becauseonly statements alleging facts can properly be the subject of a defamation action (see Gross vNew York Times Co., 82 NY2d 146, 152-153 [1993]; Immuno AG. vMoor-Jankowski, 77 NY2d 235, 254 [1991], cert denied 500 US 954 [1991]). "Theissue of distinguishing between actionable fact and non-actionable opinion is a question of lawfor the court" (Gjonlekaj v Sot, 308 AD2d 471, 474 [2003]; see Silsdorf vLevine, 59 NY2d 8 [1983], cert denied 464 US 831 [1983]). In making thatdetermination, the " 'factors to be considered are: (1) whether the specific language in issue has aprecise meaning which is readily understood; (2) whether the statements are capable of beingproven true or false; and (3) whether either the full context of the communication in which thestatement appears or the broader social context and surrounding circumstances are such as tosignal . . . readers or listeners what is being read or heard is likely to be opinion,not fact' " (Colantonio v Mercy Med.Ctr., 73 AD3d 966, 968 [2010], quoting Brian v Richardson, 87 NY2d 46, 51[1995]).
Here, as acknowledged in the complaint, the statements alleged to be defamatory were madein the context of a public campaign opposing the opening of the school and the defendant servingas its principal. The defendant's statement that she was stalked and harassed was not anactionable statement of objective fact because it did not have a precise, readily understoodmeaning, and would clearly be understood by a reasonable listener to be a figurative expressionof how she felt as the object of the campaign.
Accordingly, accepting the allegations in the complaint as true, as we must (see Leon vMartinez, 84 NY2d 83, 87 [1994]), the complaint fails to state a cause of action to recoverdamages for defamation. Covello, J.P., Angiolillo, Leventhal and Belen, JJ., concur.