Opinion
2012-07-18
Barry GOLDBERG, appellant, v. Steven LEVINE, respondent.
Barry Goldberg, Goshen, N.Y., appellant pro se. Jacobowitz & Gubits, LLP, Walden, N.Y. (Tobias A. Lake and J. Benjamin Gailey of counsel), for respondent.
Barry Goldberg, Goshen, N.Y., appellant pro se. Jacobowitz & Gubits, LLP, Walden, N.Y. (Tobias A. Lake and J. Benjamin Gailey of counsel), for respondent.
REINALDO E. RIVERA, J.P., ANITA R. FLORIO, RANDALL T. ENG, and SHERI S. ROMAN, JJ.
In an action, inter alia, to recover damages for defamation, the plaintiff appeals from an order of the Supreme Court, Orange County (Ecker, J.), dated July 19, 2011, which granted the defendant's motion, inter alia, pursuant to CPLR 3211(a)(1) and (7) to dismiss the complaint.
ORDERED that the order is affirmed, with costs.
The plaintiff commenced this action, inter alia, to recover damages for defamation based upon certain written and oral statements allegedly made about him by the defendant at town board meetings and in a local newspaper. The Supreme Court granted the defendant's motion, inter alia, pursuant to CPLR 3211(a)(1) and (7) to dismiss the complaint. The plaintiff appeals, and we affirm.
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 ( see Gross v. New York Times Co., 82 N.Y.2d 146, 152, 603 N.Y.S.2d 813, 623 N.E.2d 1163;600 W. 115th St. Corp. v. Von Gutfeld, 80 N.Y.2d 130, 139, 589 N.Y.S.2d 825, 603 N.E.2d 930,cert. denied508 U.S. 910, 113 S.Ct. 2341, 124 L.Ed.2d 252;Liere v. Paini, 93 A.D.3d 825, 826, 940 N.Y.S.2d 900). “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 at 152–153, 603 N.Y.S.2d 813, 623 N.E.2d 1163, quoting 600 W. 115th St. Corp. v. Von Gutfeld, 80 N.Y.2d at 139, 589 N.Y.S.2d 825, 603 N.E.2d 930).
Here, certain of the defendant's statements, which were allegedly made at Town Board meetings and in a local newspaper, were “rhetorical hyperbole” and expressions of individual opinion ( Gatto v. Callaghan, 231 A.D.2d 552, 552, 647 N.Y.S.2d 290 [internal quotation marks omitted]; see Brian v. Richardson, 87 N.Y.2d 46, 54, 637 N.Y.S.2d 347, 660 N.E.2d 1126;600 W. 115th St. Corp. v. Von Gutfeld, 80 N.Y.2d at 144, 589 N.Y.S.2d 825, 603 N.E.2d 930). Therefore, accepting these allegations in the complaint as true ( see Leon v. Martinez, 84 N.Y.2d 83, 87–88, 614 N.Y.S.2d 972, 638 N.E.2d 511), they fail to state a cause of action to recover damages for defamation ( see Springer v. Almontaser, 75 A.D.3d 539, 541, 904 N.Y.S.2d 765).
Moreover, the documentary evidence submitted by the defendant demonstrated that the defendant's statements that hazardous or toxic substances were located on the plaintiff's property were substantially true. “Truth is an absolute defense to an action based on defamation” ( Heins v. Board of Trustees of Inc. Vil. of Greenport, 237 A.D.2d 570, 571, 655 N.Y.S.2d 996;see Kamalian v. Reader's Digest Assn., Inc., 29 A.D.3d 527, 528, 814 N.Y.S.2d 261). Thus, the documentary evidence submitted by the defendant conclusively establishes a defense to the claim as a matter of law ( see Goshen v. Mutual Life Ins. Co. of N.Y., 98 N.Y.2d 314, 326, 746 N.Y.S.2d 858, 774 N.E.2d 1190).
The plaintiff's remaining contentions are without merit.
Accordingly, the Supreme Court properly granted the defendant's motion, inter alia, pursuant to CPLR 3211(a)(1) and (7) to dismiss the complaint.