Spain v. Williams

"based upon (1) any communication in a place open to the public or a public forum in connection with an issue of public interest; or (2) any other lawful conduct in furtherance of the exercise of the constitutional right of free speech in connection with an issue of public interest, or in furtherance of the exercise of the constitutional right of petition"

(Gottwald v Sebert, 40 NY3d 240, 256 [internal quotation marks omitted]; see Civil Rights Law § 76-a[1][a][1], [2]). The anti-SLAPP statute provides that the term "'public interest' shall be construed broadly, and shall mean any subject other than a purely private matter" (Civil Rights Law § 76-a[1][d]; see Gottwald v Sebert, 40 NY3d at 257). On a defendant's motion pursuant to CPLR 3211(a)(7) and (g), once a defendant establishes that an action involves public petition and participation, the plaintiff must establish that the causes of action alleged have a "substantial basis in law" (id. § 3211[g]; see Stiloski v Wingate, 241 AD3d 958, 960). Costs and attorneys' fees shall be awarded to a defendant in a SLAPP suit "upon a demonstration . . . that the action involving public petition and participation was commenced or continued without a substantial basis in fact and law and could not be supported by a substantial argument for the extension, modification or reversal of existing law" (Civil Rights Law § 70-a[1][a]). Contrary to the plaintiff's contention, the defendants each satisfied their initial burden of establishing that this action involved public petition and participation because it involved a claim based upon "lawful conduct in furtherance of the exercise of the constitutional right of free speech in connection with an issue of public interest" (id. § 76-a[1][a][2]). The complaint alleged that the June 2024 email was sent on behalf of a committee to elect a certain candidate to a Putnam County public office and that the June 2024 email criticized the plaintiff's alleged circulation of false statements about the candidate during the election. Under these circumstances, the defendants each established that the plaintiff's causes of action were asserted in connection with an issue of public interest; that is, matters of political concern to the community (see Stiloski v Wingate, 241 AD3d at 961). Since the defendants each established that this action constituted an action involving public petition and participation, the burden shifted to the plaintiff to demonstrate that his causes of action had a substantial basis in law (see id.).

"The elements of a cause of action for defamation are (a) a false statement that tends to expose a person to public contempt, hatred, ridicule, aversion, or disgrace, (b) published without privilege or authorization to a third party, (c) amounting to fault as judged by, at a minimum, a negligence standard, and (d) either causing special harm or constituting defamation per se" (id. [internal quotation marks omitted]; see Tsamasiros v Jones, 232 AD3d 816, 817-

818). "A statement is defamatory per se if it (1) charges the plaintiff with a serious crime; (2) tends to injure the plaintiff in his or her trade, business or profession; (3) imputes to the plaintiff a loathsome disease; or (4) imputes unchastity to a woman" (Stiloski v Wingate, 241 AD3d at 961 [internal quotation marks omitted]; see Harrington v Ortolani, 247 AD3d 733, 734).

"Since falsity is a necessary element of a defamation cause of action and only facts are capable of being proven false, it follows that only statements alleging facts can properly be the subject of a defamation action" (Stiloski v Wingate, 241 AD3d at 961 [internal quotation marks [*3]omitted]; see Silverman v Daily News, L.P., 129 AD3d 1054, 1055). Accordingly, an expression of pure opinion is not actionable, no matter how vituperative or unreasonable it may be (see Udell v NYP Holdings, Inc., 169 AD3d 954, 956). "A pure opinion may take one of two forms. It may be 'a statement of opinion which is accompanied by a recitation of the facts upon which it is based,' or it may be '[a]n opinion not accompanied by such a factual recitation' so long as 'it does not imply that it is based upon undisclosed facts'" (Davis v Boeheim, 24 NY3d 262, 269, quoting Steinhilber v Alphonse, 68 NY2d 283, 289). Further, "[m]ere rhetorical hyperbole is not actionable" (Trump Vil. Section 4, Inc. v Luca, 241 AD3d 1597, 1599 [internal quotation marks omitted]). "In distinguishing between facts and opinion, the factors the court must consider are (1) whether the specific language has a precise meaning that is readily understood, (2) whether the statements are capable of being proven true or false, and

(3) whether the context in which the statement appears signals to readers that the statement is likely to be opinion, not fact" (Stiloski v Wingate, 241 AD3d at 962 [internal quotation marks omitted]; see Silverman v Daily News, L.P., 129 AD3d at 1055). "Deciding whether a statement is fact or opinion is a question of law to be decided by the courts"

(Phipps v Kuonen, 242 AD3d 781, 783; see Davis v Boeheim, 24 NY3d at 269).

Here, the alleged defamatory statement in the June 2024 email amounted to no more than nonactionable opinion or rhetorical hyperbole and was not capable of being proven true or false (see Trump Vil. Section 4, Inc. v Luca, 241 AD3d at 1599; Silverman v Daily News, L.P., 129 AD3d at 1055). Given the context of the alleged defamatory statementâ​​a heated election campaignâ​​and the June 2024 email's tone, reasonable readers would have concluded that they were reading an opinions, rather than a fact, about the plaintiff (see 600 W. 115th St. Corp. v Von Gutfeld, 80 NY2d 130, 143- 145; Silverman v Daily New, L.P., 129 AD3d at 1055). To the extent that the plaintiff contends that a statement in the June 2024 email imparted defamatory inferences, the complaint failed to "make a rigorous showing that the language of the communication as a whole can be reasonably read both to impart a defamatory inference and to affirmatively suggest that the author intended or endorsed that inference" (Udell v NYP Holdings, Inc., 169 AD3d at 957 [internal quotation marks omitted]; see Fon v Krowe, 204 AD3d 889, 891). Moreover, the complaint failed to allege to whom the June 2024 email had been published (see Oluwo v Mills, 228 AD3d 879, 880). Thus, the plaintiff failed to establish that his causes of action had a substantial basis in law (see Stiloski v Wingate, 241 AD3d at 962; Perchuk v Perfect Body Image, LLC, 220 AD3d 894, 895). Accordingly, the Supreme Court properly granted those branches of the first motions which were pursuant to CPLR 3211 to dismiss the complaint insofar as asserted against each of the defendants. The Supreme Court also properly granted those branches of the first motions which were pursuant to Civil Rights Law § 70-a for an award of costs and attorneys' fees and the second motions. The defendants each established that the alleged defamatory statement was based upon "lawful conduct in furtherance of the exercise of the constitutional right of free speech in connection with an issue of public interest" (id. § 76-a[1][a][2]) and established that this action was an action involving public petition and participation. In opposition, the plaintiff failed to show that his causes of action had a substantial basis in law (see Stiloski v Wingate, 241 AD3d at 961).

We decline to address Williams's request for certain affirmative relief, since a nonappealing party is not entitled to such relief (see Hecht v City of New York, 60 NY2d 57, 61; Listokin v Listokin, 188 AD3d 862, 864). The parties' remaining contentions either are without merit or need not be reached in light of our determination.

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DUFFY, J.P., WARHIT, VENTURA and OTTLEY, JJ., concur.

ENTER:

Darrell M. Joseph Clerk of the Court

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