Opinion
May 1, 1995
Appeal from the Supreme Court, Suffolk County (Seidell, J.).
Ordered that the order is affirmed, with costs.
The plaintiff Thomas L. Scott, the chief of police of East Hampton, commenced this action to recover damages for allegedly defamatory statements made by the defendant Robert Cooper, a town councilman in East Hampton, to two local newspapers. In the two newspaper articles, the defendant accused the plaintiff, inter alia, of misconduct regarding his official duties, racial discrimination, coverups of criminal activities, and corruption in managing the police department of East Hampton.
It is well settled that on a motion to dismiss a complaint for failure to state a cause of action pursuant to CPLR 3211 (a) (7), the complaint is to be liberally construed accepting all the facts alleged in the complaint to be true and affording the plaintiff the benefit of every possible favorable inference (see, Leon v Martinez, 84 N.Y.2d 83, 87; Rotanelli v Madden, 172 A.D.2d 815, 816). The criterion is whether the plaintiff has a cause of action and not whether he may ultimately be successful on the merits (see, Stukuls v State of New York, 42 N.Y.2d 272, 275; Detmer v Acampora, 207 A.D.2d 475; Greenview Trading Co. v Hershman Leicher, 108 A.D.2d 468, 470).
Applying these principles to the case at bar, we find that the Supreme Court properly denied the defendant's motion. We agree that the defendant's statements were reasonably susceptible of defamatory meaning since it is well established that a statement is actionable if it tends to disparage a person in his profession. Thus, the Supreme Court properly denied that branch of the defendant's motion which was to dismiss the complaint pursuant to CPLR 3211 (a) (7) (see, Aronson v Wiersma, 65 N.Y.2d 592, 594).
We further note that the statements did not constitute personal opinion since they reasonably appeared to contain assertions of objective fact which do not fall within the scope of protected opinion (see generally, Immuno AG. v Moor-Jankowski, 77 N.Y.2d 235, 243, cert denied 500 U.S. 954). There is also a question of fact concerning whether the statements were made with actual malice or ill will so as to preclude dismissal of the complaint based on a qualified privilege (see generally, Liberman v Gelstein, 80 N.Y.2d 429; Toker v Pollak, 44 N.Y.2d 211). In view of the foregoing, the court properly denied the branch of the defendant's motion which was for summary judgment pursuant to CPLR 3211 (c).
The defendant's remaining contentions are either unpreserved for appellate review or without merit. Bracken, J.P., Balletta, Copertino and Hart, JJ., concur.