Defendant’s Statements Constitute Defamatory Statements of and Concerning Plaintiff

Posted on by

Point: “The Statements made by Defendant, as fully laid out in the Complaint, constitute false and defamatory statements of and concerning Plaintiff and its restaurant business.”

To prove commercial defamation, the plaintiff must demonstrate that the following elements are present:

  1. a false and defamatory statement of fact, that it not protected as an expression of opinion;
  2. of or concerning an existing business;
  3. that is published to a third party with the requisite degree of fault; and
  4. that is the proximate cause of damage to the reputation of that business.

See, e.g. Immuno AG v. Moor-Jankowski, 77 NY2d 235 (1991).

New York courts have long defined defamatory statements as those that “tend to expose the plaintiff to public contempt, ridicule, aversion, or disgrace, or induce an evil opinion of him in the minds of right-thinking persons, and to deprive him of their friendly intercourse in society.” Rinaldi v. Holt, Rinehart and Winston, Inc., 42 NY2d 369 (1977). In Kimmerle v. New York Evening Journal, 262 NY 99 (1933), the Court of Appeals held that defamation is that which “exposes an individual to public hatred, shame, obloquy, contumely, odium, contempt, ridicule, aversion, ostracism, degradation, or disgrace or…induces an evil opinion of one in the minds of right-thinking persons, and…deprives one of…confidence and friendly intercourse in society.”

A: Defamation of a business:

For businesses, a more specific test also has been articulated: whether the language is “of so defamatory a nature as to directly affect credit and to occasion pecuniary injury.” Harwood Pharmacal Co. v. National Broadcasting Co., 9 NY2d 460 (1961); Hornell Broadcasting Corp. v. A.C. Nielson Co., 8 AD2d 60 (4th Dept. 1960), affirmed, 8 NY2d 767 (1960). Courts have also addressed this issue by inquiring as to “whether the published statement relates to the plaintiff’s business so as to affect the confidence of the public and drive away its customers.” Reporters’ Association of America v. Sun Printing and Publishing Association, 186 NY 437 (1906).

In the commercial context, defamation is per se when the statement in question “impugns the basic integrity or creditworthiness of a business.” Hamlet Development Co. v. Venitt, 95 AD2d 798 (2d Dept. 1983), affirmed 60 NY2d 677 (1983), citing Ruder and Finn Inc. v. Seaboard Surety Co., 52 NY2d 663 (1981). The test as for whether the statement is defamatory per se is whether it represents a direct attack on the reputation of the business, as opposed to denigrating the quality of the business, its goods or services. See, Drug Research Corp. v. Curtis Publishing Co., 7 NY2d 435 (1960). As indicated in such case law, where a statement is defamatory per se, special damages need not be proved by the plaintiff and damages are presumed.

It is New York law that the false statements that a kosher business which sells kosher meat is selling non-kosher meat and goods is actionable per se because the words tend to injure such proprietors in their business. See, Cohen v. Eisenberg, 173 Misc. 1089 (Sup. Ct., NY Co. 1940), affirmed 260 AD 1014 (1st Dept. 1940), reargument denied 261 AD 890 (1st Dept. 1941); Braun v. Armour and Co., 228 AD 630 (2d Dept. 1929), affirmed 254 NY 514 (1930), certified question answered by 228 AD 698 (2d Dept. 1930).

B: Evaluation of the statement itself:

In evaluating the defamatory nature of a statement, the court must evaluate it in its context (James v. Gannett Co. Inc., 40 NY2d 415 (1976)), should be interpreted fairly and reasonably based on its effect (Armstrong v. Simon and Schuster Inc., 85 NY2d 373 (1995)), as it pertains to the average reader. The “average reader” standard has been interpreted as including at least a substantial minority in the relevant community. Gjonlekaj v. Sot, 308 AD2d 471 (2d Dept. 2003).

It has been established that opinions, false or not, libelous or not, are constitutionally protected and may not be the subject of private damage actions. Rinaldi v. Holt, Rinehart and Winston, Inc., 42 NY2d 369 (1977), citing to Buckley v. Littell, 539 F2d 882, cert. denied 429 US 1062. In the Rinaldi case, the Court of Appeals held that whether a particular statement constitutes fact or opinion is a question of law.

In Millus v. Newsday, Inc., 89 NY2d 840 (1996), the Court of Appeals stated: “Whether a potentially actionable statement is one of fact or opinion is a question of law, and depends on ‘whether a reasonable reader or listener would understand the complained-of assertions as opinion or statements of fact.” In that case, the Court of Appeals held that the facts that the complained-of assertion was made on the editorial page of the newspaper, surrounded by other opinion pieces, and had a general “tenor” of editorialism, the assertion could not have been alleged to be a statement of fact, but rather one of opinion.

The Court of Appeals held, in Brian v. Richardson, 87 NY2d 46 (1995), that factors to be considered to distinguish between assertions of fact and non-actionable expressions of opinion are: (1) whether the specific language in issue has a precise meaning which is readily understood; (2) whether the statements are capable of being proven true or false; and (3) whether either the full context of the communication in which the statement appears or the broader social context and surrounding circumstances are such as to signal to readers or listeners that what is being read or heard is likely to be opinion, not fact.

C: Publication to a third party:

In order to constitute actionable defamation, the defamatory statement must have been disseminated or published to a third party. Swinton v. Safir, 93 NY2d 758 (1999); Memory Gardens, Inc. v. D’Amico, 91 AD2d 1159 (3d Dept. 1983). The publishing and posting of statements on both a website and blog constitute dissemination and publication to third parties. The same are readily available to anyone who searches the internet.

D: Statements are “of or concerning the plaintiff”:

The defamatory statements must be “of or concerning the plaintiff.” Gross v. Cantor, 270 NY 93 (1936).

E: Proximate cause of injury:

Private corporations (and similarly limited liability companies) are generally deemed a private figure in terms of the degree of fault necessary to place the burden of proof upon a party in a defamation action. Carlucci v. Poughkeepsie Newspapers, Inc., 88 AD2d 608 (2d Dept. 1982), affirmed 57 NY2d 883 (1982).

Did the Defendant Commit Injurious Falsehood?

To prove injurious falsehood, the plaintiff must demonstrate that the following elements are present:

  1. a false statement of fact;
  2. published to a third party;
  3. with malice; and
  4. that is the proximate cause of damage to the reputation of that business.

See, e.g. Penn-Ohio Steel Corp. v. Allis-Chalmers Manufacturing Co., 7 AD2d 441 (1st Dept. 1959).

Case law has held that it is not necessary for the Complaint to allege that the sole motivation of the defendant was to injure the plaintiff; rather, it is enough if the falsehoods charged were intentionally uttered and did in fact cause the plaintiff to suffer actual damages in its economic or legal relationships. P. Kaufmann, Inc. v. Americraft Fabrics, Inc., 198 F.Supp.2d 466 (SDNY 2002).

Next post
Previous post

The Legal Standard on a Motion to Dismiss

Posted on by

In an action, a Defendant can move to dismiss a Plaintiff’s Complaint based upon the allegation that the Complaint fails to state a cause of action, pursuant to CPLR 3211(a)(1), (5) and (7). In deciding such a motion, the court must accept the facts as alleged in the Complaint as true, according the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory. Goldman v. Metropolitan Life Insurance Co., 5 NY3d 561, 807 NYS2d 583 [2005]. The Complaint in this action makes factual allegations which, for the most part, have already been established by the Order. These facts amply support the causes of action alleged in the Complaint.

Essentially, the court should impose a “four corners” test in liberally construing the four corners of the pleading to see whether they establish valid causes of action. Schwaner v. Collins, 17 AD3d 1068 [4 Dept. 2005]. As the Court of Appeals enunciated in Guggenheimer v. Ginzburg, 43 NY2d 268 [1977], on a motion to dismiss made pursuant to CPLR 3211(a)(7), “the sole criterion is whether the pleading states a cause of action, and if from its four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law.” Further, “when evidentiary material is considered, the criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one, and unless it has been shown that a material fact as claimed by the pleader to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it, again dismissal should not eventuate.” Guggenheimer, supra at 275.

R. A. Klass
Your Court Street Lawyer

Next post
Previous post

Continuing Wrongs Doctrine and the Statute of Limitations

Posted on by

“This Action Is Not Barred By the Statute of Limitations”

” This action is not barred by the statute of limitations, and should be permitted to proceed. As laid out in the Complaint, there have been a series of wrongs on the part of Defendants, over the course of years, which establish their bad faith and lack of fair dealing with Plaintiff. Based upon the continuing wrongs, the causes of action were properly brought within the statute of limitations period. “

Breach of fiduciary duty may constitute a continuing wrong that “is not referable exclusively to the day the original wrong was committed.” Kaymakcian v. Board of Managers of Charles House Condominium, 49 AD3d 407, 854 NYS2d 52 [1 Dept. 2008]  (denying dismissal of the breach of fiduciary duty claim as time-barred where board had a continuing duty to repair leaks in building’s limited common elements); 1050 Tenants Corp. v. Lapidus, 289 AD2d 145, 146, 735 NYS2d 47 [1 Dept. 2001].

The continuing wrong doctrine applied to breach of fiduciary duty limits monetary damages to three years from the commencement of the action. See Kaufman v. Cohen, 307 AD2d 113, 118, 760 NYS2d 157 [1 Dept. 2003]; CPLR 214[4].

R. A. Klass
Your Court Street Lawyer

Next post
Previous post

Ownership of Property among Two Sets of Spouses

Posted on by

“Rodriguez’s Right to 50% of the Property Was Created by Operation of Law”

In this case, the Deed to the subject real property indicated ownership of the property as follows:

“GILBERTO HERNANDEZ and CONSOLACION HERNANDEZ, HIS WIFE … AND ERLINDA QUE and ELPIDIO RODRIGUEZ, HER HUSBAND.”

As to the 50% interest in the property owned by movant  Elpidio Rodriguez and his wife, Erlinda Que, they owned their share as tenants by the entirety. Based upon the substantial case law in New York State, Mr. Rodriguez and Erlinda Que took ownership of their half-share as husband and wife, have continued as such until Erlinda Que’s death.

In Prario v. Novo, 168 Misc.2d 610 (Sup. Ct., Westchester Co. 1996), the court held that a grant of real property to a husband and wife creates a tenancy by the entirety “unless expressly declared to be a joint tenancy or tenancy in common.”  Estates, Powers and Trusts Law § 6-2.2(b). A joint tenancy is subject to partition during the lifetimes of the joint tenants (24 N.Y.Jur.2d, Cotenancy and Partition, § 33; 3A Warren’s Weed, New York Real Property, Partition, § 3.03; id., vol. 2A, Joint Tenants, § 4.01) whereas a tenancy by the entirety cannot be divided absent consent of both spouses or upon a divorce (24 N.Y.Jur.2d, Cotenancy and Partition, §§ 38, 56; 3A Warren’s Weed, op. cit., Partition, § 3.12) The tenancy by the entirety can be changed by voluntary act of the couple, divorce or death.

In Goldman v. Goldman, 95 NY2d 120 (2000), the Court of Appeals noted that a tenancy by the entirety is a form of real property ownership available only to parties married at the time of the conveyance (Kahn v. Kahn, 43 N.Y.2d 203, 207, 401 N.Y.S.2d 47, 371 N.E.2d 809). As tenants by the entirety, both spouses enjoy an equal right to possession of and profits yielded by the property (Neilitz v. Neilitz, 307 N.Y. 882, 122 N.E.2d 924). Additionally, “each tenant may sell, mortgage or otherwise encumber his or her rights in the property, subject to the continuing rights of the other” (V.R.W., Inc. v. Klein, 68 N.Y.2d 560, 565, 510 N.Y.S.2d 848, 503 N.E.2d 496). Only if the legal relationship between the husband and wife is judicially altered through divorce, annulment or legal separation, does the tenancy by the entirety converts to a tenancy in common (Kahn v. Kahn, 43 N.Y.2d, supra, at 207, 401 N.Y.S.2d 47, 371 N.E.2d 809).

Courts have recognized that a tenancy by the entirety cannot be altered without the mutual consent of the spouses or divorce. In Sciacca v. Sciacca, 185 Misc.2d 105 (Sup. Ct. Queens Co. 2000), the court held that: “As articulated by the Court of Appeals in Kahn v. Kahn, 43 N.Y.2d 203, 401 N.Y.S.2d 47, 371 N.E.2d 809, a court cannot direct the disposition of property held by married couples as tenants by the entirety until the court first alters the marital status, such as by entering a judgment of divorce or separation. Indeed, the law is long-settled that neither entirety tenant may, without the consent of the other, dispose of any part of the property to defeat the right of survivorship.” Citing to Hiles v. Fisher, 144 N.Y. 306, 39 N.E. 337.)

The Court of Appeals held, in Hiles v. Fisher, 144 NY 306 (1895), that the husband had a right to mortgage his interest, which was a right to the use of an undivided half of the estate during the joint lives, and to the fee in case he survived his wife; and by the foreclosure and sale the plaintiff acquired this interest, and became a tenant, in common with the wife, of the premises, subject to her right of survivorship.

Revisiting this issue, in V.R.W., Inc. v. Klein, 68 NY2d 560 (1986), the Court of Appeals held:

What makes this right of survivorship unique and differentiates it from the right of survivorship inherent in an ordinary joint tenancy is that it remains fixed and cannot be destroyed without the consent of both spouses (see, Kahn v. Kahn, 43 N.Y.2d 203, 401 N.Y.S.2d 47, 371 N.E.2d 809; compare, Matter of Polizzo, 308 N.Y. 517, 127 N.E.2d 316; Matter of Suter, 258 N.Y. 104, 179 N.E. 310, with Matter of Klatzl, supra, 216 N.Y. at pp. 86-87, 110 N.E. 181; Hiles v. Fisher, supra). As long as the marriage remains legally intact, both parties continue to be seized of the whole, and the death of one merely results in the defeasance of the deceased spouse’s coextensive interest in the property (see, Stelz v. Shreck, supra, 128 N.Y. at p. 266, 28 N.E. 510; Bertles v. Nunan, supra, at p. 156). Similarly, involuntary partition is not available to either cotenant as a means of severing the tenancy by the entirety, since a contrary rule would permit a vindictive or irresponsible spouse to deprive the other of the comforts of the marital home (see, Kahn v. Kahn, supra, 43 N.Y.2d at p. 208, 401 N.Y.S.2d 47, 371 N.E.2d 809; Anello v. Anello, 22 A.D.2d 694, 253 N.Y.S.2d 759; Vollaro v. Vollaro, 144 App.Div. 242, 129 N.Y.S. 43).

Accordingly, the ownership interests of Mr. Rodriguez and Erlinda Que as “husband and wife” created a tenancy by the entirety. Upon the death of his wife, Mr. Rodriguez became the owner of her share by operation of law; any Last Will and Testament of Erlinda Que would not alter his rights.

Long-established New York law is that real property held as tenants by entirety does not pass under the Will of a decedent spouse. In re Rothko’s Estate, 77 Misc.2d 168 [Sur. Ct., NY Co. 1974]; In re Strong’s Will, 171 Misc. 445 [Sur. Ct., Monroe Co. 1939] (“A severance of a tenancy by the entirety cannot be effected by the unilateral last will of one of the spouses alone.” Citing to Levenson v. Levenson, 229 AD 402 [2 Dept. 1930]).

On the death of the first tenant by the entirety of real property, his estate ceases to have any interest in such property. Matter of Harris’ Estate, 88 Misc.2d 60 [1976], affirmed 61 AD2d 881.

R. A. Klass
Your Court Street Lawyer

Next post
Previous post

The Defense of Equitable Estoppel

Posted on by

There is a concept in the law that one party should not be allowed to lead another party down a road, knowing full well that it is the wrong road, only later to say “a-ha” and attempt to take advantage of the other party. Where one party claims that the other has breached a contract, there may be the availability of the defense of “equitable estoppel.” The term “estoppel” refers to “stopping” someone from taking a certain position that differs from a prior position–and “equitable” refers to that certain degree of fairness that is expected of people.

In the Matter of N.Y. State Guernsey Br. Co-op v. Noyes, 260 AD 240, modified on other grounds, 284 NY 197, the court laid out the essential elements of an equitable estoppel claim, as follows: (1) As related to the party to be charged: (a) conduct which amounts to a false representation or concealment of material facts; (b) intention, or at least expectation, that such conduct shall be acted upon by the other party; and (c) knowledge, actual or constructive, of the real facts; and (2) As related to the party claiming the estoppel: (a) lack of knowledge; (b) reliance upon the conduct of the party estopped; and (c) action based thereon of such a character as to change his position prejudicially.

In the broad context of contracts,

In Ferlazzo v. Riley, 278 NY 289 (1938), the Court of Appeals pointed out that the contract rights of a mortgagee will be enforced in the absence of waiver, estoppel, bad faith, fraud, oppressive or other unconscionable conduct on its part.

In Caspert v. Anderson Apartments, 196 Misc. 555 (Sup. N.Y. Co. 1949), the court opined: “It may be unconscionable, however, to insist upon adherence to the letter of an agreement where a mortgagee indicates by his conduct or silence that his inaction may turn to his own advantage.”

R. A. Klass
Your Court Street Lawyer

Next post
Previous post