On April 1, 2022, Justice Masley of the New York County Commercial Division issued a decision in Lewis v. Schuster, 2022 NY Slip Op. 30750(U), dismissing a defamation claim because it was based on non-actionable statements of opinion, explaining:
The elements of a claim 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. CPLR 3016 (a) requires that in a defamation action, the particular words complained of be set forth
in the complaint.In evaluating whether a cause of action for defamation is successfully pleaded, the words must be construed in the context of the entire statement or publication as a whole, tested against the understanding of the average reader, and if not reasonably susceptible of a defamatory meaning, they are not actionable and cannot be made so by a strained or artificial construction. Courts will not strain to find defamation where none exists. Loose, figurative or hyperbolic statements, even if deprecating the
plaintiff, are not actionable.Schuster asserts that the statements in the Article are expressions of his opinion, and not assertions of fact, deeming them privileged. Whether a particular statement constitutes an opinion or an objective fact is a question of law. When distinguishing fact from opinion, a court should consider the following: (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. A pure opinion may take one of
two forms. It may be a statement of opinion which is accompanied by a recitation 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.Schuster’s first statement that “the filing was nothing more than an ‘attempt to deflect’ Doe’s allegations of sexual assault” is an expression of opinion speculating why Lewis filed the amended complaint in the Doe Action. Schuster’s second statement
that “‘instead of simply defending against the allegations in the federal court action as any innocent person would, Mr. Lewis amended his complaint in this action to provide a vehicle to further spread lies about Ms. Doe and others in the hope his own conduct would be overlooked”‘ is also an opinion clearly speculating as to why Schuster believed Lewis filed the amended complaint. Finally, Schuster’s third statement that “‘indeed, Mr. Lewis amended his complaint because he knew that raising these baseless, unfounded allegations in his answer to the federal action would not be tolerated by a federal judge”‘ is also an opinion. Once again, Schuster was clearly giving his opinion as to why he believed Lewis amended the complaint.Looking at the statements in context of the Article as a whole, a reasonable reader would have no reason to believe that the statements at issue were conveying facts about plaintiff. Further, these statements are not mixed opinions, implying that they are based upon facts which justify the opinion but are unknown to those reading or hearing it. No matter how offensive these statements are to Lewis, they are not ‘reasonably susceptible of a defamatory connotation. All remaining arguments have been
(Internal quotations and citations omitted).
considered. Schuster’s motion to dismiss is granted.