Opinion
No. 2014/06421.
05-15-2015
Dennis H. KINDRED, Plaintiff, v. Sarah COLBY, Monroe County Fair & Recreation Association, Defendants.
Jonathan Cox, Esq., Cohen & Lombardo, P.C., Buffalo, for Plaintiff. Heidi Brauer Ruchala, Esq., Damon Morey LLP, Buffalo, for Defendants.
Jonathan Cox, Esq., Cohen & Lombardo, P.C., Buffalo, for Plaintiff.
Heidi Brauer Ruchala, Esq., Damon Morey LLP, Buffalo, for Defendants.
THOMAS A. STANDER, J.
The Defendants, Sarah Colby and Monroe County Fair & Recreation Association, submit this motion seeking an order granting Defendants' motion to dismiss the Complaint of Plaintiff, Dennis H. Kindred.
Plaintiff commenced this action on June 5, 2014 alleging defamation against the Defendants based upon Sarah Colby publicly posting on Facebook alleged defamatory and libelous statements concerning the Plaintiff. The Plaintiff specifically sets forth in his Complaint three statements that he alleges were defamatory and/or libelous.
That among other things, Defendant COLBY posted the following statements "that Dennis Kindred facebook-stalked me ..." and, further referring to the Plaintiff, posted "Gotta love assholes who hide behind group names like ‘Friends of Northhampton Park’ in order to sue a volunteer organization trying to put on a community event, and then when the judge throws out the lawsuit as frivolous, throws misleading events to raise money to pay for lawsyers [sic ] to appeal the lawsuit even though we've already hosted the community event once and none of his lies came true," and further referring to Plaintiff that "an irate neighbor has gone through your facebook photos to identify those near and dear to you."
(Complaint ¶ 9). The Complaint also alleges that the postings "constitute slander per se in that they allege criminal acts, and tend to injure Plaintiff in his trade, profession, or community standing, and lower him in the estimation of the community" (Complaint ¶ 10). The Plaintiff demands judgment against the Defendants in an amount to be determined.
I. MOTION TO DISMISS
The Defendants submit this motion to dismiss, pursuant to CPLR § 3211[a] [7], asserting that Plaintiff fails to state a cause of action for defamation upon which relief may be granted. On a motion to dismiss the complaint must be construed liberally and must be given the benefit of every possible favorable inference. The Court must "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" (Abbott v. Tonawanda Coke Corp., 104 AD3d 1188,1189 [4th Dept.2013] [quoting Leon v. Martinez, 84 N.Y.2d 83, 87–88 [1994] ] ).
In determining the sufficiency of a defamation pleading, we consider "whether the contested statements are reasonably susceptible of a defamatory connotation (Armstrong, 85 N.Y.2d at 380 ).... [I]f upon any reasonable view of the stated facts, plaintiff would be entitled to recovery for defamation, the complaint must be deemed to sufficiently state a cause of action" (citations omitted ).
(Davis v. Boeheim, 24 NY3d 262,268 [2014] ).
A. DEFAMATION LAW
Defamation has been defined by the Court of Appeals as "a false statement ‘that tends to expose a person to public contempt, hatred, ridicule, aversion or disgrace’ (citation omitted )" (Davis at 268; Frechtman v. Gutterman, 115 AD3d 102 [1st Dept.2014] ). The Courts have established the accepted elements for a defamation claim:
The elements of a cause of action for defamation are a false statement, published without privilege or authorization to a third party, constituting fault as judged by, at a minimum, a negligence standard, and it must either cause special harm or constitute defamation per se (citations omitted). 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 (Gross v. New York Times Co., 82 N.Y.2d 146, 152–153, 623 N.E.2d 1163, 603 N.Y.S.2d 813, quoting 600 W. 115th St. Corp. v. Von Gutfeld, 80 N.Y.2d 130, 139, 603 N.E.2d 930, 589 N.Y.S.2d 825 ). In determining whether a complaint states a cause of action to recover damages for defamation, the dispositive inquiry is whether a reasonable listener or reader could have concluded that the statements were conveying facts about the plaintiff" (citations omitted). Whether a particular statement constitutes an opinion or an objective fact is a question of law" (Mann v. Abel, 10 NY3d 271, 276, 885 N.E.2d 884, 856 N.Y.S.2d 31 : see Rinaldi v. Holt, Rinehart & Winston, 42 N.Y.2d 369, 381, 366 N.E.2d 1299, 397 N.Y.S.2d 943 ).
"Expressions of opinion, as opposed to assertions of fact, are deemed privileged and, no matter how offensive, cannot be the subject of an action for defamation" (Mann v. Abel, 10 NY3d at 276 ; See Weiner v. Doubleday & Co., 74 N.Y.2d 586, 593, 549 N.E.2d 453, 550 N.Y.S.2d 251 ; Steinhilber v. Alphonse, 68 N.Y.2d 283, 501 N.E.2d 550, 508 N.Y.S.2d 901 ). The Court of Appeals has characterized the matter of distinguishing between opinion and fact for purposes of defamation analysis as "a difficult task" (Mann v. Abel, 10 NY3d at 276 [Internal quotation marks omitted] ).
(Kamchi v. Weissman, 125 AD3d 142,156–57 [2nd Dept.2014] ).
The Court of Appeals has established that "only statements alleging facts can properly be the subject of a defamation claim" (Davis at 269). An opinion cannot be defamatory.
A defamatory statement of fact is in contrast to "pure opinion" which under our laws is not actionable because "[e]xpressions of opinion, as opposed to assertions of fact, are deemed privileged and, no matter how offensive, cannot be the subject of an action for defamation (citation omitted ).... A pure opinion may take one of two forms. It may be "a statement of opinion which is accompanied by a citation of the facts upon which it is based," or it may be "an opinion not accompanied by such a factual recitation" so long as "it does not imply that it is based upon undisclosed facts" (citation omitted ).
(Davis at 269). It is a question of law for the Court to decide whether it is fact or opinion based upon "what the average person hearing or reading the communication would take it to mean (citation omitted )" (Id.; see Sabharwal & Finkel, LLC v. Sorrell, 117 AD3d 437, 437–38 [1st Dept.2014] ).
The Court of Appeals has identified three factors to consider in distinguishing between fact and opinion:
We apply three factors in determining whether a reasonable reader would consider the statement connotes fact or nonactionable opinion: ‘(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’ (citation omitted ).
(Davis at 270; see Kamchi at 157). The Court recognizes that this inquiry is a difficult one.
The third factor "lends both depth and difficulty to the analysis" (citation omitted ), and requires that the court consider the content of the communication as a whole, its tone and apparent purpose (citations omitted ). Thus, we have adopted a holistic approach to this inquiry. "Rather than sifting through a communication for the purpose of isolating and identifying assertions of fact, the court 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 [ ] plaintiff" (citations omitted ).
(Davis at 270; see Wahrendorf v. City of Oswego, 72 AD3d 1604,1605[4th Dept.2010] ).
B. ALLEGED DEFAMATORY STATEMENT IN JUNE 5, 2013 FACEBOOK POSTING
Defendants argue that the June 5, 2013 Facebook posting which contains the language "an irate neighbor has gone through your facebook photos to identify those near and dear to you" does not refer to Plaintiff and therefore, is not actionable. Defendants assert that the posting refers only to an "irate neighbor" with no reference to Plaintiff by name or by any other identifying factors. The Plaintiff's opposition papers do not refute or contest that this statement is not actionable for a defamation claim. The entire Facebook statement is "[t]hat ‘special’ feeling when you realize an irate neighbor has gone through your facebook photos to identify those near & dear to you" (Attorney Affidavit of Heidi Ruchala, Esq ., 12/29/2014, Exhibit C).
A claim of defamation is based on a false statement "that tends to expose a person to public contempt, hatred, ridicule, aversion or disgrace" (Davis at 268; Frechtman v. Gutterman, 115 AD3d 102 [1st Dept.2014] ). The reference in the challenged June 5, 2013 facebook posting states only "an irate neighbor." There is no evidence submitted to show that this facebook posting, which is the language set forth in the Plaintiff's complaint as a defamatory statement, identifies the Plaintiff, Dennis Kindred, in any way.
This alleged defamatory statement cannot expose Dennis Kindred to any harm because it does not identify him. Based on this June 5, 2013 facebook posting language, the complaint does not set forth a cause of action by Plaintiff for defamation against the Defendants.
The motion of the Defendants to dismiss the cause of action for defamation based upon the statement on Sarah Colby's facebook page that "an irate neighbor has gone through your facebook photos to identify those near and dear to you" is GRANTED. The cause of action for defamation based on this language is DISMISSED.
C. ALLEGED DEFAMATORY STATEMENT IN NOVEMBER 12, 2013 FACEBOOK POSTING
The Complaint also alleges other Facebook postings by Colby are defamatory and libelous, although the Complaint does not set forth the specific date of such postings. The alleged defamatory statements asserted in the Complaint are from a November 12, 2013 facebook posting of Sarah Colby:
The Fourth Department has held that a cause of action for defamation must state the time, place and manner of the alleged false statement to be viable (see Nesathural v. University at Buffalo, 23 AD3d 1070,1072 [4th Dept.2005] ). On a technical basis, this Complaint fails to set forth that the allegedly false statements were in a Facebook posting on November 12, 2013. Nevertheless, the Court will review the claim to dismiss for failure to state cause of action.
That among other things, Defendant COLBY posted the following statements "that Dennis Kindred facebook-stalked me ..." and, further referring to the Plaintiff, posted "Gotta love assholes who hide behind group names like ‘Friends of Northhampton Park’ in order to sue a volunteer organization trying to put on a community event, and then when the judge throws out the lawsuit as frivolous, throws misleading events to raise money to pay for lawsyers [sic ] to appeal the lawsuit even though we've already hosted the community event once and none of his lies came true,"...
(Complaint ¶ 9). For a motion to dismiss based upon CPLR § 3211[a][7], that the complaint fails to state a cause of action, the Court must determine only whether the facts as alleged in the complaint fit within the legal theory for defamation.
The Plaintiff's Complaint only sets forth excerpts from the Facebook posting of Sarah Colby on November 12, 2013. The entire Facebook post states:
Accidentally ended up discussing, and thus having to remember, that Dennis Kindred facebook-stalked me to the point of being able to identify my boyfriend by face alone at an event where I wasn't even present, when they had never met before.
Gotta love assholes who hide behind group names like "Friends of Northhampton Park" in order to sue a volunteer organization trying to put on a community event, and then when the judge throws out the lawsuit as frivilous [sic ], throws misleading events to raise money to pay for lawyers to appeal the lawsuit even though we've already hosted the community event once and none of his lies came true. Some people. I really wish Dennis Kindred and his "Friends' group would take up a beneficial cause like volunteering to read at and donate books to local illiteracy programs. Clearly he & his group have time and money to do [sic ] help out the community if only they would channel it toward something worthwhile.
(Attorney Affidavit of Heidi Ruchala, 12/29/2014, Exhibit D).
Whether the Facebook posting constitutes an opinion or objective fact is a question of law for the Court (Davis at 269). The Court must apply the three factors established by the Court of Appeals to analyze "whether a reasonable reader would consider the statement [to be] fact or nonactionable opinion" (Davis at 270) .It is necessary to "consider the content of the communication as a whole, its tone and apparent purpose" (Id.; see Wahrendorf at 1605). As stated by the Court of Appeals, "[r]ather than sifting through a communication for the purpose of isolating and identifying assertions of fact, the court 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 [ ] plaintiff’ (citations omitted )" (Davis at 270).
1. Defamation Based on Internet Postings
It is necessary to look at the over-all context, tone and apparent purpose of the Internet Facebook posting by Sarah Colby on November 12, 2013. It has been noted that the culture of Internet communications, as distinct from that of print media such as newspapers and magazines, encourages a freewheeling, anything-goes writing style (Sandals Resort Int'l Limited v. Google, Inc., 86 AD3d 32 [1st Dept.2011] ; Wender v. Silberling, 2014 N.Y. Slip Op 31770(U) at 5, 2014 N.Y. Misc. LEXIS 3048 [NY Cty July 2014] ). Courts have expressed the application of defamation claims to Internet forums:
Internet forums are venues where citizens may participate and be heard in free debate involving civic concerns. It may be said that such forums are the newest form of the town meeting. We recognize that, although they are engaging in debate, persons posting to these sites assume aliases that conceal their identities or "blog profiles." Nonetheless, falsity remains a necessary element in a defamation claim and, accordingly, "only statements alleging facts can properly be the subject of a defamation action" (600 W. 115th St. Corp. v. Von Gutfeld, 80 N.Y.2d 130, 139, 603 N.E.2d 930, 589 N.Y.S.2d 825 [1992], cert denied 508 U.S. 910, 113 S Ct 2341, 124 L.Ed.2d 252 ; see Gross v. New York Times Co., 82 N.Y.2d 146, 153, 623 N.E.2d 1163, 603 N.Y.S.2d 813 [1993] ). Within this ambit, the Supreme Court correctly determined that the accusation on the newspaper site that the plaintiff was a "terrorist" was not actionable. Such a statement was likely to be perceived as "rhetorical hyperbole, a vigorous epithet" (Greenbelt Cooperative Publishing Assn., Inc. v. Bresler, 398 U.S. 6, 14, 90 S Ct 1537, 26 L.Ed.2d 6 [1970] ; see Milkovich v. Lorain Journal Co., 497 U.S. 1, 110 S Ct 2695, 111 L.Ed.2d 1 [1990] ; Immuno AG. v.. Moor–Jankowski, 77 N.Y.2d 235, 254, 567 N.E.2d 1270, 566 N.Y.S.2d 906 [1991], cert denied 500 U.S. 954, 111 S Ct 2261, 114 L.Ed.2d 713 [1991] ). This conclusion is especially apt in the digital age, where it has been commented that readers give less credence to allegedly defamatory Internet communications than they would to statements made in other milieus (see Sandals Resorts Intl. Ltd. v.. Google, Inc., 86 AD3d 32, 43–44, 925 N.Y.S.2d 407 [2011].... Accordingly, we conclude that this statement constituted an expression of opinion, and, as such, is nonactionable.
(LeBlanc v. Skinner, 103 AD3d 202,213 [2nd Dept.2012] ; Wender at 7–8).
"Loose, figurative or hyperbolic statements, even if deprecating the plaintiff, are not actionable" (Wender, 2014 N.Y. Slip Op 31770(U) at 3). Statements that amount to "no more than name-calling or ... general insults" are not actionable (see Wahrendorf at 1605). Where "the tone of the statements at issue ‘is ironic, sarcastic and caustic; ‘it is evident that the [statements were] intended to be invective expressed in the form of heavy-handed and nonsensical humor’' (citations omitted )" and are not actionable (See Id. ). Expressions of opinion are "deemed privileged and, no matter how offensive, cannot be the subject of an action for defamation" (Davis at 269).
2. Over-all Context of Facebook Posting
On this motion to dismiss we consider whether any reading of the complaint supports a defamation claim by Plaintiff based on the November 12, 2013 Facebook post. Under the three factors to determine whether the statements are nonactionable opinion or fact, the specific language used in the posting has a precise meaning that is readily understood. People know what facebook stalking and being called a liar mean. Some of the statements made in the full Facebook posting, if pulled out from the context of the whole posting as is done in the Complaint, are capable of being proven true or false.
The third factor is the more difficult to analyze and is often the determining factor. Under the third factor, both the full context of the Facebook posting of November 12, 2013 and the broader social context and surrounding circumstances must be considered. The analysis must be to determine whether the totality of the context and circumstances signal to the readers that what is being read is likely to be opinion, not fact.
This is a Facebook posting on the Internet by an individual about a public issue involving the use of a public park. A reasonable reader of facebook postings would not have believed that the statements being challenged by the Plaintiff were conveying facts about him. Instead, given the whole context of the posting and the broader social context, the reasonable reader would conclude that the statements constitute hyperbole, name-calling, insults and venting by Sarah Colby. The Facebook posting could be perceived as rhetorical hyperbole, or a vigorous epithet in the Internet forum available for free debate on civic concerns. The venting of frustration and unhappiness with others actions is acceptable on Facebook. The statements made on the Facebook posting, even if they are offensive, are mere expressions of opinion.
This Court concludes as a matter of law that the statements by Sarah Colby on her Facebook posting on November 12, 2013 constitute an expression of opinion, and as such, are nonactionable.
D. SLANDER PER SE
Plaintiff alleges defamation per se based on the Facebook post on November 12, 2013 which states: "that Dennis Kindred facebook-stalked me ..." (Complaint ¶ 9). Plaintiff claims that this statement is slander per se based on it asserting criminal acts, and based on it tending to injure Plaintiff in his trade, profession or community standing (Complaint ¶ 10).
As previously stated, "[t]he elements of a cause of action for defamation are a false statement, published without privilege or authorization to a third party, constituting fault as judged by, at a minimum, a negligence standard, and it must either cause special harm or constitute defamation per se" (Kamchi at 156–57; Frechtman at104). The Plaintiff claims slander per se. Four (4) categories of statements are considered to be defamatory per se: (1) those that charge the plaintiff with a serious crime; (2) those that tend to injure the Plaintiff in its business, trade or profession; (3) those that impute that the Plaintiff has some loathsome disease; or (4) those that impute unchastity (Liberman v. Gelstein, 80 N.Y.2d 429,435 [1992] ). Plaintiff asserts that the statement charges a serious crime and that it tends to injure the Plaintiff in his profession, trade and community standing.
1. Criminal Act
To constitute defamation per se premised on a statement charging Plaintiff with a crime, the statement must impute the commission of a specific indictable offense for which punishment may be inflicted upon conviction (see Privitera v. Town of Phelps, 79 A.D.2d 1 [4th Dept.1981] ). Unless the accusatory words specify a crime, or a crime is readily apparent from properly pled innuendo, they are not defamatory per se. (Id. ) Although the term "facebook stalked" is a derogatory sounding term, it is commonly used by Internet users for people seeking information about others. It is generally used to denote an offensive or invasive investigation of a person through facebook and facebook information. The ‘reasonable reader’ is the standard of review for defamation.
In the present case, the only "crime" that Plaintiff could possibly allege imputed criminal activity is Ms. Colby's statement that Plaintiff "Facebook-stalked" her. "Facebook-stalking" is not a crime. Plaintiff could not be indicted for "Facebook-stalking". Ms. Colby's statement in her Facebook post that Plaintiff "Facebook stalked me" did not impute any criminal activity to Plaintiff. Thus such statement is not slander or defamation per se.
2. Injury to Business, Trade or Profession
"A statement is defamatory on its face when it suggests improper performance of one's professional duties or unprofessional conduct" (Frechtman at 104). To be actionable defamation as words that tend to injure another in his profession, the challenged statements must be more than a general reflection upon the Plaintiff's character or qualities; rather, the statement must reflect on the Plaintiff's performance or be incompatible with the proper conduct of his or her business (see Golub v. Enquirer/Star Group, 89 N.Y.2d 1074,1076 [1997] ). The defamatory words must have been stated with specific reference to the Plaintiff's particular business, trade or profession (see Nadrowski v. Wazeter, 29 A.D.2d 741 [1st Dept.1968] ).
In the present case, none of the statements made by Ms. Colby are related to Plaintiff's profession or his ability to perform his business or trade. Ms. Colby's statements did not address the subject of Plaintiff's ability to practice his profession and were not disparaging of his competence as an investigator. The facebook statements did not tend to injure the Plaintiff in his business, trade or profession.
3. Conclusion on Defamation Per Se
The alleged defamatory statements do not impute criminal activity and did not impute any conduct associated with his profession. Thus, the Facebook statements do not qualify as slander or defamation per se.
E. CONCLUSION
On this motion to dismiss the defamation claim pursuant to CPLR § 3211[a] [7], the Court considers "whether any reading of the complaint supports the defamation claim" (Davis at 272).
The statements in the June 5, 2013 and November 12, 2013 Facebook posts, in their ordinary meaning and in the totality of the over-all context and circumstances, are not susceptible to a defamation claim. As a matter of law the challenged statements are pure opinion and are not actionable (see Wahrendorf at 1605; Sabharwal & Finkel at 437–38; Frechtman at 108). The statements at issue are constitutionally protected expressions of opinion.
The complaint fails to state a cause of action for defamation.
ORDER
Based upon all the papers submitted in support and in opposition to this motion, upon the above Decision, and after due deliberation, it is hereby
ORDERED that the motion of the Defendants, Sarah Colby and Monroe County Fair & Recreation Association, to dismiss the Complaint of Plaintiff, Dennis H. Kindred, for failure to state a cause of action is GRANTED; it is further
ORDERED that the Complaint of Dennis H. Kindred against the Defendants is DISMISSED.