Plaintiffs identify numerous alleged assertions of fact, but we focus on only three: (1) the allegation in the second flyer that plaintiff is "unfit to manage any more buildings"; (2) the allegation in the first and third flyers that plaintiffs engaged in "illegal evictions" against tenants; and (3) the allegation in the second flyer of racial discrimination against employees and racist remarks ("how he treats the Puerto Rican/Latinas Employees and how he fires them" [listing the first names of 18 employees fired] and "what is he always saying about african americans"). Each of the above statements is reasonably susceptible of a defamatory meaning because they all tend to disparage Guerrero in his profession as a property manager ( see Giffuni v. Feingold, 299 AD2d 265; Scott v. Cooper, 226 AD2d 360). While the allegation that he is "unfit" standing alone might be too vague to constitute an assertion of fact ( Amodei v. New York State Chiropractic Assn., 160 AD2d 279, affd 77 NY2d 891), when combined with assertions of specific instances of "illegal evictions" and racial discrimination in employment, each of the statements becomes precise in meaning and capable of being proven true or false.
Chi. Tribune Co., 616 F.Supp. 1434, 1435 (S.D.N.Y.1985) (“[W]hen the criticism takes the form of accusations of criminal or unethical conduct, or derogation of professional integrity in terms subject to factual verification, the borderline between fact and opinion has been crossed.”); Giffuni v. Feingold, 299 A.D.2d 265, 749 N.Y.S.2d 716, 716 (1st Dep't 2002) (finding that certain statements were not loose, figurative, or hyperbolic, “especially since” they alleged criminal conduct).
It is true that statements of opinion may be defamatory if they “imply the existence of undisclosed underlying facts that would support defendant's opinion and would be detrimental to plaintiffs.” Giffuni v. Feingold, 299 A.D.2d 265, 266, 749 N.Y.S.2d 716, 716 (1st Dep't 2002) (internal quotations omitted). The statements at issue here do not entail any such implications.
It is true that statements of opinion may be defamatory if they "imply the existence of undisclosed underlying facts that would support defendant's opinion and would be detrimental to plaintiffs." Giffuni v. Feingold, 299 A.D.2d 265, 266, 749 N.Y.S.2d 716, 716 (1st Dep't 2002) (internal quotations omitted). The statements at issue here do not entail any such implications.
Worst Company to do business with," is an expression of opinion and therefore not actionable (see e.g. Schwartz v Nordstrom, Inc., 160 AD2d 240, 241 [1st Dept 1990], lv denied 76 NY2d 711 [1990]; Cardali v Slater, 167 AD3d 476 [1st Dept 2018], lv denied 33 NY3d 901 [2019]; Galasso v Saltzman, 42 AD3d 310, 311 [1st Dept 2007]). Nothing in the post implies that there exist undisclosed facts that would support the opinion (see e.g. Giffuni v Feingold, 299 AD2d 265 [1st Dept 2002]; Guerrero v Carva, 10 AD3d 105, 112-113 [1st Dept 2004]). We have considered plaintiff's remaining contentions and find them unavailing.
We note that this Court's partial lifting of the interim stay of the preliminary injunction does not constitute law of the case for purposes of our consideration of the merits of this appeal from the order granting the preliminary injunction (seeThompson v. Armstrong, 134 A.3d 305, 310 [D.C. 2016] ["law of the case is not established by denial of a stay"] [internal quotation marks omitted], cert denied ––– U.S. ––––, 137 S.Ct. 296, 196 L.Ed.2d 215 [2016] ). Initially, we reiterate that, although it may ultimately be determined that defendants have libeled plaintiff, "[p]rior restraints are not permissible ... merely to enjoin the publication of libel" ( Rosenberg, 290 A.D.2d at 239, 735 N.Y.S.2d 528 ; see alsoGiffuni v. Feingold, 299 A.D.2d 265, 266, 749 N.Y.S.2d 716 [1st Dept. 2002] ; cf.Dennis v. Napoli, 148 A.D.3d 446, 49 N.Y.S.3d 652 [1st Dept. 2017] [affirming preliminary injunction against sending unsolicited defamatory communications about the plaintiff, who was not a public figure, directly to her colleagues, friends and family] ). Accordingly, as plaintiff appears to recognize, the preliminary injunction can be affirmed only if it enjoins a "true threat" against plaintiff ( Virginia v. Black, 538 U.S. at 359, 123 S.Ct. 1536 [internal quotation marks omitted] ).
Moreover, the context in which these statements were allegedly made, at a meeting of the firm's employees where a the misconduct and criminal conduct of a former employee was discussed, suggests that Morelli was presenting these statements as a matter of fact in an attempt to discourage or warn his employees from contacting defendant and giving her client information. See Giffuni v. Feingold, 299 AD2d 265 (1st Dept 2002). While plaintiff also argues that the statements are protected by a qualified privilege, it is premature on a motion to dismiss to determine this the issue of qualified privilege.