Holliswood Owners Corp. v. Rivera

• Decision Date: 28 December 2016
• Citation: 2016 N.Y. Slip Op. 08843,145 A.D.3d 968,44 N.Y.S.3d 159
• Parties: HOLLISWOOD OWNERS CORP., et al., appellants, v. Eve RIVERA, et al., respondents.
• Court: New York Supreme Court — Appellate Division

145 A.D.3d 968

44 N.Y.S.3d 159

2016 N.Y. Slip Op. 08843

HOLLISWOOD OWNERS CORP., et al., appellants,

v.Eve RIVERA, et al., respondents.

Supreme Court, Appellate Division, Second Department, New York.

Dec. 28, 2016.

Daniels Norelli Cecere & Tavel, P.C., Rego Park, NY (Robert J. Cecere and Sherrie A. Taylor of counsel), for appellants.

Mark J. Weinstein, Tarrytown, NY, for respondents.

MARK C. DILLON, J.P., THOMAS A. DICKERSON, JOSEPH J. MALTESE, and COLLEEN D. DUFFY, JJ.

In an action, inter alia, to recover damages for defamation, the plaintiffs appeal, in part by permission, from an order of the Supreme Court, Queens County (Hart, J.), entered July 15, 2015, which granted the defendants' motion pursuant to CPLR 3211 to dismiss the complaint and sua sponte directed, in effect, that any counsel fees paid by the plaintiffs to their attorneys in connection with this action must be turned over to the defendants' attorney and held in escrow by him pending further order of the court.

ORDERED that the order is modified, on the facts and in the exercise of discretion, by deleting the provision thereof directing, in effect, that any counsel fees paid by the plaintiffs to their attorneys in connection with this action must be turned over to the defendants' attorney and held in escrow by him pending further order of the court; as so modified, the order is affirmed, with costs to the defendants.

In this action, the plaintiffs, Holliswood Owners Corp., a housing cooperative corporation (hereinafter the Co-op), and A. Michael Tyler Realty, the managing agent for the Co-op (hereinafter the managing agent), seek injunctive relief and to recover damages as a result of various statements allegedly made by the defendants, shareholders in the Co-op who challenged the manner in which the Co-op board and managing agent were handling the affairs of the Co-op. The Supreme Court granted the defendants' motion pursuant to CPLR 3211(a)(7) to dismiss the complaint and sua sponte directed, in effect, that any counsel fees paid by the plaintiffs to their attorneys in connection with this action must be turned over to the defendants' attorney and held in escrow by him pending further order of the court. The plaintiffs appeal.

On a pre-answer motion to dismiss pursuant to CPLR 3211(a)(7), a court is required to "accept as true each and every allegation made by plaintiff and limit [its] inquiry to the legal sufficiency of plaintiff's claim" (Silsdorf v. Levine, 59 N.Y.2d 8, 12, 462 N.Y.S.2d 822, 449 N.E.2d 716 ). Nevertheless, the Supreme Court was permitted to consider the writings which contained the statements at issue, as well as an affidavit submitted by the plaintiffs in support of their earlier order to show cause seeking, in effect, injunctive relief (see Guggenheimer v. Ginzburg, 43 N.Y.2d 268, 275, 401 N.Y.S.2d 182, 372 N.E.2d 17 ; Abakporo v. Daily News, 102 A.D.3d 815, 816–817, 958 N.Y.S.2d 445 ; Daub v. Future Tech Enter., Inc., 65 A.D.3d 1004, 1005, 885 N.Y.S.2d 115 ).

The Supreme Court correctly granted that branch of the motion which was to dismiss the first and second causes of action, which sound in defamation. "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 146, 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 130, 139, 589 N.Y.S.2d 825, 603 N.E.2d 930 ). Distinguishing between fact and opinion is a question of law for the courts, to be decided based on "what the average person hearing or reading the communication would take it to mean" (Steinhilber v. Alphonse, 68 N.Y.2d 283, 290, 508 N.Y.S.2d 901, 501 N.E.2d 550 ; see Mann v. Abel, 10 N.Y.3d 271, 276, 856 N.Y.S.2d 31, 885 N.E.2d 884 ; Galanova v. Safir, 138 A.D.3d 686, 687, 29 N.Y.S.3d 459 ).

In distinguishing between facts and opinion, the factors the court must consider are (1) whether the specific language has a precise meaning that is readily understood, (2) whether the statement is capable of being proven true or false, and (3) whether the context in which the statement appears signals to readers that the statement is likely to be opinion, not fact (see Mann v. Abel, 10 N.Y.3d at 276, 856 N.Y.S.2d 31, 885 N.E.2d 884 ; Steinhilber v. Alphonse, 68 N.Y.2d at 292, 508 N.Y.S.2d 901, 501 N.E.2d 550 ). "The dispositive inquiry ... is whether a reasonable [reader] could have concluded that the [statements were] conveying facts about the plaintiff" (Gross v. New York Times Co., 82 N.Y.2d at 152, 603 N.Y.S.2d 813, 623 N.E.2d 1163 [internal quotation marks omitted]; see Immuno AG. v. Moor–Jankowski, 77 N.Y.2d 235, 254, 566 N.Y.S.2d 906, 567 N.E.2d 1270 ; Melius v. Glacken, 94 A.D.3d 959, 960, 943 N.Y.S.2d 134 ).

In this case, the challenged statements are nonactionable opinion. Many of the statements do not have a precise meaning; others are hyperbolic and incapable of being proven true or false. In the context of a dispute regarding control of the Co-op board, no reasonable person could have concluded that the defendants' statements were conveying facts about the plaintiffs (see e.g. Steinhilber v. Alphonse, 68 N.Y.2d at 293–294, 508 N.Y.S.2d 901, 501 N.E.2d 550 ; Goldberg v. Levine, 97 A.D.3d 725, 726, 949 N.Y.S.2d 692 ; Galasso v. Saltzman, 42 A.D.3d 310, 310–311, 839 N.Y.S.2d 731 ; Chernick v. Rothstein, 204 A.D.2d 508, 509, 612 N.Y.S.2d 77 ; see also 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 ). In addition, the plaintiffs' allegations with regard to statements allegedly made to a landscaper by two unspecified defendants fail to meet the specificity requirements of CPLR 3016(a), even considering the affidavit...