DRT Const. Co., Inc. v. Lenkei
| Decision Date | 04 October 1991 |
| Citation | 576 N.Y.S.2d 724,176 A.D.2d 1229 |
| Parties | DRT CONSTRUCTION CO., INC., and Cimato Bros., Inc., Respondents, v. Andrew LENKEI, Individually and as President of the Mapleleaf Homeowners Association and Mapleleaf Homeowners Association, Appellants. |
| Court | New York Supreme Court — Appellate Division |
Law Office of Richard L. Woll by Eugene Fahey, Buffalo, for appellant, Andrew Lenkei, individually.
Debra A. Norton, Williamsville, for appellants, Andrew Lenkei, as Pres. of Mapleleaf Drive Homeowners Ass'n.
Saperston & Day, P.C. by Charles Swanekamp, Buffalo, for respondents.
Before DOERR, J.P., and BOOMER, PINE, BALIO and LAWTON, JJ.
Plaintiffs, DRT Construction Co., Inc., and Cimato Bros., Inc., were seeking zoning and land use approvals to construct 700 residences including multiple family dwellings, two commercial plazas and a nursing home on a 288 acre parcel of land in the Town of Amherst. Defendant Lenkei individually and as president of a homeowners' association distributed flyers opposing the construction. Based on the flyers plaintiffs brought this defamation action against defendants. Defendants moved for summary judgment dismissing the action and Supreme Court denied the motion. We reverse.
One flyer distributed in January 1989 stated that "[n]ow is the time to act and * * * preserve the beauty and peaceful life of Amherst from profit hungry land abusers." The flyer identified plaintiffs as the developers. A flyer distributed in October 1989 stated that a number of engineering reports had warned about the dangerous condition of the mines under the lands sought to be developed and had predicted collapses "yet this project is still being pushed by profit hungry developers to whom your life and mine is of no concern instead they worship profit at any cost to others." A third flyer distributed in January 1990 contained a cartoon depicting three men with Hitler moustaches on a bulldozer running over a deer calling for help. The men were waving an ax, a hatchet and a shovel and one had money coming out of his pockets.
Supreme Court should have dismissed the complaint because the statements contained in the flyers and the depiction in the cartoon as a matter of law were not defamatory but were constitutionally protected opinion on a subject of public controversy. The phrase "profit hungry land abusers" does not contain a provably false factual connotation, cannot reasonably be interpreted as stating actual facts...
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