MARCY S. FRIEDMAN, Judge.
In this action, plaintiff Christakis Shiamili sues defendants The Real Estate Group of New York, Inc. ("TREGNY"), Daniel Baum, and Ryan McCann for defamation based on comments posted on a website. Defendants move to dismiss the complaint pursuant to CPLR 3211(a)(7) for failure to state a cause of action.
It is well settled that "[o]n a motion to dismiss pursuant to CPLR 3211, the pleading is to be afforded a liberal construction (see CPLR 3026). We accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory." (Leon v Martinez, 84 NY2d 83, 87-88. See 511 W. 232nd Owners Corp. v Jennifer Realty Co., 98 NY2d 144.) The test "is not whether the plaintiff has artfully drafted the complaint but whether, deeming the complaint to allege whatever can be reasonably implied from its statements, a cause of action can be sustained." (Stendig, Inc. v Thom Rock Realty Co., 163 AD2d 46, 48 [1st Dept 1990].)
As alleged in the complaint, plaintiff is the principal of Ardor Realty Corp.("Ardor"), an apartment rental and sales company in New York City. Defendant TREGNY is a direct competitor of Ardor. Defendant Baum is TREGNY's Chief Operating Officer and defendant McCann is Baum's assistant. (Complaint, ¶¶ 3-6.) The complaint alleges that "Defendants administer and choose content" for a website concerning New York City real estate. (Id., ¶ 9.) In his affidavit in support of defendants' motion, McCann acknowledges that he was the "administrator and moderator" of the website. (McCann Aff., ¶ 2.) Defendants dispute, however, that they were responsible for the website's content.
The complaint alleges that defendants published defamatory statements on the website on February 5, 2008 which damaged plaintiff Shiamili's reputation as a businessman and Ardor, by asserting that Shiamili mistreats Ardor employees and is unable to pay his bills, charging Shiamili with anti-semitism and racism, and accusing him of adultery and spousal abuse.
The allegedly defamatory statements regarding Shiamili's management of his business include comments on the website that Chris "screws the agents over on commissions" and terminates them when they ask for more; that Ardor "can't retain anyone" and has "300 agents who leave every year"; and that the office "is going to be closed if the rent doesn't get paid!!!!" (Complaint, ¶ 25.)
The cited statements regarding anti-semitism and racism include: "I have personally heard Chris making derogatory comments about Blacks, Hispanics and Jews. He calls them `those people, etc." "[H]e keeps Mike Simon around only because he is Jewish. . . . Chris has called him [Mike Simon] his token Jew." "After leaving Ardor Realty, [the Hecht brothers] were so pissed off at how they were treated by Chris, that they sent a letter to every Management Company that dealt with Ardor Realty, and told them that Chris was an Anti-Semitic." (Complaint, ¶ 26.)
The statements regarding adultery and spousal abuse include: a statement suggesting that Shiamili uses his office as an after hour space for sex (Complaint, ¶ 31), and a statement suggesting that he beats his wife. (Id., ¶ 32.)
It is well settled that "expressions of an opinion `false or not, libelous or not, are constitutionally protected and may not be the subject of private damage actions.'" (Steinhilber v Alphonse, 68 NY2d 283, 286, quoting Rinaldi v Holt, Rinehart Winston, 42 NY2d 369, 380, cert denied 434 US 969.) It is further settled that whether a statement expresses fact or opinion is a question of law for the court. (Id. at 290.) The determination as to whether a statement is fact or opinion must be based on "what the average person hearing or reading the communication would take it to mean." (Id.) Thus, "[t]he dispositive inquiry . . . is whether a reasonable [reader] could have concluded that [the statements were] conveying facts about the plaintiff." (Gross v New York Times Co., 82 NY2d 146, 152, quoting 600 W. 115th St. Corp. v Von Gutfeld, 80 NY2d 130, 139.) The inquiry generally entails an examination of "(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 readers or listeners that what is being read or heard is likely to be opinion, not fact." (Gross, 82 NY2d at 153 [internal quotation marks and citations omitted]. Accord Guerrero v Carva, 10 AD3d 105, 111-112 [1st Dept 2004].) The court must examine "the content of the whole communication as well as its tone and apparent purpose." (Steinhilber, 68 NY2d at 293. Accord Immuno AG v Moor-Jankowski, 77 NY2d 235, 254, cert denied 500 US 954.)
Further, "in determining whether a particular communication is actionable, [the courts] continue to recognize and utilize the important distinction between a statement of opinion that implies a basis in facts which are not disclosed to the reader or listener, and a statement of opinion that is accompanied by a recitation of the facts on which it is based." (Gross, 82 NY2d at 153 [internal citations omitted].) The latter are ordinarily not actionable because "a preferred hypothesis that is offered after a full recitation of the facts on which it is based is readily understood by the audience as conjecture." (Id. at 154.) The Court of Appeals "has cautioned, however, that `sifting through a communication for the purpose of isolating and identifying assertions of fact' should not be the central inquiry [internal citation omitted]. Instead, courts `should look to the over-all context in which the assertions were made and determine on that basis `whether the reasonable reader would have believed that the challenged statements were conveying facts about the libel plaintiff.'" (Guerrero, 10 AD3d at 112 [quotingImmuno AG, 77 NY2d at 254.)
Defendants argue that a reasonable reader would realize that the comments on the website are opinion or satire. As defendants point out, the website contains the following disclaimer: "Use of this site explicitly acknowledges the users understanding and consent that [the website] is a satire and comedic website and not a source of news." However, this disclaimer is not conclusive. Defendants also argue that the "satiric tenor" of the website is demonstrated by the use of screen names like "Ardor Realty Sucks" and by the "trading [of] inane insults. (Ds.' Memo. Of Law In Support at 11.)
While the court would hardly characterize the website as satiric, the court agrees that many of the posts and comments could only be viewed by a reasonable reader as inane or juvenile invective couched in vulgar language. Contrary to defendants' apparent contention, however, the tastelessness and puerility of the statements does not insulate them from review under defamation law. The court cannot find as a matter of law that the allegedly defamatory statements are all protected opinion rather than actionable statements which would be understood by a reasonable reader as assertions of fact. The statements regarding Shiamili's conduct of his business and treatment of employees — in particular, refusal to pay commissions and inability to retain employees — are statements which tend to injure plaintiff in his trade or business. (See Guerrero, 10 AD3d at 113.) The statements that Shiamili discriminated against employees based on racial or anti-semitic bias are supported by references to specific employees, and signal to a reasonable reader that assertions of fact and not merely opinion are being conveyed. (See id.;Herlihy v Metropolitan Museum of Art, 214 AD2d 250 [1st Dept 1995];Sheridan v Carter, 48 AD3d 444 [2d Dept 2008].). The statements as to Shiamili's adultery and spousal abuse are similarly actionable.
Defendants further argue that the complaint must be dismissed because the posts and comments, even if actionable, were not authored by defendants but merely published by defendant McCann. Defendants argue that they are therefore exempt from liability pursuant to Communications Decency Act 47 USC § 230(c)(1), under which a provider of an interactive computer service shall not be treated as the publisher of "information provided by another information content provider."
The general rule is that a dispositive motion should not be granted prior to completion of discovery where facts necessary to oppose the motion may exist but are within the exclusive knowledge or control of the moving party. (See,e.g., Integrated Logistics Consultants v Fidata Corp., 131 AD2d 338 [1st Dept 1987]; Simpson v Term Indus., 126 AD2d 484 [1st Dept 1987].) "This is especially so where the opposing party has not had a reasonable opportunity for disclosure prior to the making of the motion." (Baron v Inc. Vil. Of Freeport, 143 AD2d 792, 793 [2d Dept 1988]; Colicchio v Port Auth. of New York New Jersey, 246 AD2d 464, 465 [1st Dept][1998].)
Here, information as to defendants' role, if any, in authoring or developing the content of the website is exclusively within their possession. As this case is in an early stage at which discovery has not yet been conducted, defendants' motion should be denied as premature.
The court has considered the remaining bases for dismissal advanced by defendants and finds them to be without merit.
It is accordingly hereby ORDERED that defendants' motion to dismiss is denied; and it is further
ORDERED that defendants shall appear for a preliminary conference in Part 57 of this Court on January 29, 2009 at 11:00 a.m.
This constitutes the decision and order of the court.