Opinion
16505 Index No. 20004/18E Case No. 2021–00932
10-20-2022
Salvatore P. DERICCO et al., Plaintiffs–Respondents, v. Randi L. MAIDMAN et al., Defendants–Appellants.
Horowitz Tech Law P.C., Garden City (Joshua J. Horowitz of counsel), for appellants.
Horowitz Tech Law P.C., Garden City (Joshua J. Horowitz of counsel), for appellants.
Gische, J.P., Kern, Gesmer, Scarpulla, Rodriguez, JJ.
Order, Supreme Court, Bronx County (Howard H. Sherman, J.), entered June 26, 2020, which, to the extent appealed from, denied defendants’ motion to dismiss the first, second, and third causes of action, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment dismissing the complaint.
Plaintiffs, an orthodontist and his professional corporation, allege that defendants – a former minor patient and that patient's parents – defamed them in an unfavorable review posted on Google. Contrary to Supreme Court's holding, we find that, although defendants’ Google review contains elements of both fact and opinion, it nevertheless is not actionable (see generally Steinhilber v. Alphonse, 68 N.Y.2d 283, 294, 508 N.Y.S.2d 901, 501 N.E.2d 550 [1986] ; Mann v. Abel, 10 N.Y.3d 271, 276, 856 N.Y.S.2d 31, 885 N.E.2d 884 [2008], cert denied 555 U.S. 1170, 129 S.Ct. 1315, 173 L.Ed.2d 584 [2009] ; Immuno AG. v. Moor–Jankowski, 77 N.Y.2d 235, 242–243, 566 N.Y.S.2d 906, 567 N.E.2d 1270 [1991], cert denied 500 U.S. 954, 111 S.Ct. 2261, 114 L.Ed.2d 713 [1991] ), and it was not the motion court's province to "sift[ ] through [the] communication for the purpose of isolating and identifying assertions of fact" ( Brian v. Richardson, 87 N.Y.2d 46, 51, 637 N.Y.S.2d 347, 660 N.E.2d 1126 [1995] ). Rather, the court should have considered the overall context in which the communication was made, an anonymous online review of plaintiff's services (see Thomas H. v. Paul B., 18 N.Y.3d 580, 585, 942 N.Y.S.2d 437, 965 N.E.2d 939 [2012] ).
Here, a reasonable reader of defendants’ Google review would understand it to be pure opinion based on the context in which it was posted and its arguably "[l]oose, figurative, or hyperbolic" tone ( Dillon v. City of New York, 261 A.D.2d 34, 38, 704 N.Y.S.2d 1 [1st Dept. 1999] ; see Matter of Woodbridge Structured Funding, LLC v. Pissed Consumer, 125 A.D.3d 508, 509, 6 N.Y.S.3d 2 [1st Dept. 2015] ). Furthermore, defendants’ Google review was posted anonymously online and, as we have recognized, " ‘[R]eaders give less credence to allegedly defamatory remarks published on the Internet than to similar remarks made in other contexts’ " ( Torati v. Hodak, 147 A.D.3d 502, 503, 47 N.Y.S.3d 288 [1st Dept. 2017], quoting Sandals Resorts Intl. Ltd. v. Google, Inc., 86 A.D.3d 32, 44, 925 N.Y.S.2d 407 [1st Dept. 2011] ).
In view of the foregoing, defendants’ remaining arguments are academic.