Hull v. Town of Prattsville

• Decision Date: 29 December 2016
• Citation: 44 N.Y.S.3d 253,145 A.D.3d 1385,2016 N.Y. Slip Op. 08917
• Parties: Dennis G. HULL et al., Appellants, v. TOWN OF PRATTSVILLE et al., Respondents, et al., Defendant.
• Court: New York Supreme Court — Appellate Division

145 A.D.3d 1385

44 N.Y.S.3d 253

2016 N.Y. Slip Op. 08917

Dennis G. HULL et al., Appellants,

v.TOWN OF PRATTSVILLE et al., Respondents, et al., Defendant.

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

Dec. 29, 2016.

Kevin A. Luibrand, Latham, for appellants.

Shantz & Belkin, Latham (Frederick F. Shantz of counsel), for Town of Prattsville and others, respondents.

Before: McCARTHY, J.P., LYNCH, ROSE, CLARK and AARONS, JJ.

ROSE, J.

Appeal from an order of the Supreme Court (Fisher, J.), entered September 24, 2015 in Greene County, which, among other things, granted certain defendants' motion for summary judgment dismissing the complaint.

In the aftermath of severe flooding caused by Hurricane Irene in August 2011, plaintiff Dennis G. Hull, with another person working for him, towed approximately 100 damaged vehicles located in the Town of Prattsville, Greene County, including a vehicle owned by defendant John King. In April 2012, King wrote a letter to the Town Board asking who had authorized Hull—and Hull's company, plaintiff Hull Ventures—to tow his vehicle away from where it had been parked on private property and expressing his "outrage" over the fact that plaintiffs had charged his insurance company a fee of $934.20. Among other things, the letter accused plaintiffs of "grand theft auto," "price gouging" and "pull[ing] one over on the insurance companies." At the subsequent Town Board meeting, defendant Bonita Chase, a Town Board member, acknowledged receipt of the letter and stated that the Town Board would look into its allegations. In the course of the ensuing investigation by several agencies, Hull indicated that defendant Michael O'Hara, who was appointed by defendant Town of Prattsville to assist in managing the flood cleanup efforts, directed him to tow the vehicles. Defendant Kory O'Hara, the Town Supervisor, and Michael O'Hara each provided a sworn statement denying that they had authorized Hull to tow vehicles without first obtaining the owner's permission.

After filing a notice of claim, plaintiffs commenced this action, alleging, among other things, that six statements in King's April 2012 letter were defamatory, that Chase and Kory O'Hara republished the letter at the Town Board meeting and that the O'Haras' sworn statements were also defamatory. Following joinder of issue, plaintiffs filed a bill of particulars, asserting, as is relevant here, that King made two additional defamatory statements in a May 2012 letter to plaintiffs' counsel and that Kory O'Hara made an additional defamatory statement in his sworn statement. Thereafter, the Town, the O'Haras and Chase (hereinafter collectively referred to as the Town defendants) and King moved for summary judgment dismissing the complaint. Supreme Court partially granted King's motion, finding that portions of the six statements from the April 2012 letter and the two statements from the May 2012 letter were not defamatory, as they were either true or constituted pure opinion. In addition, Supreme Court granted the motion by the Town defendants in its entirety, finding, among other things, that they are entitled to an absolute privilege and, alternatively, a qualified privilege. Plaintiffs now appeal.

Turning first to King's motion, plaintiffs contend that Supreme Court erred in dismissing the entirety of the statements identified by the court as 2, 6, 9 and 10, and a portion of statement 4, because they are defamatory and cannot be characterized as merely opinions.¹ It is well settled that, "[s]ince falsity is a necessary element of a defamation cause of action and only facts are capable of being proven false, only statements alleging facts can properly be the subject of a defamation action" (Davis v. Boeheim, 24 N.Y.3d 262, 268, 998 N.Y.S.2d 131, 22 N.E.3d 999 [2014] [internal quotation marks, ellipsis and citations omitted]; see Thomas H. v. Paul B., 18 N.Y.3d 580, 584, 942 N.Y.S.2d 437, 965 N.E.2d 939 [2012] ; Coe v. Town of Conklin, 94 A.D.3d 1197, 1199, 942 N.Y.S.2d 255 [2012] ). "Distinguishing actionable fact from a protected expression of opinion is a question of law in which several factors are weighed, including whether the allegedly defamatory words have a precise meaning that is readily understood, whether the statement can be proven as true or false, and whether the context and surrounding circumstances would indicate that the comment is an opinion" (Baker v. Galusha, 114 A.D.3d 1124, 1124–1125, 981 N.Y.S.2d 198 [2014] [citation omitted]; see Gentile v. Grand St. Med. Assoc., 79 A.D.3d 1351, 1352–1353, 911 N.Y.S.2d 743 [2010] ; Bonanni v. Hearst Communications, Inc., 58 A.D.3d 1091, 1092, 872 N.Y.S.2d 221 [2009] ).

While a pure expression of opinion is not actionable, a "mixed opinion"—i.e., one that " ‘implies that it is based upon facts which justify the opinion but are unknown to those reading or hearing it’ "—can be the subject of a defamation claim (Davis v. Boeheim, 24 N.Y.3d at 269, 998 N.Y.S.2d 131, 22 N.E.3d 999, quoting Steinhilber v. Alphonse, 68 N.Y.2d 283, 289, 508 N.Y.S.2d 901, 501 N.E.2d 550 [1986] ; see Loder v. Nied, 89 A.D.3d 1197, 1199, 932 N.Y.S.2d 546 [2011] ). "Rather than sifting through a communication for the purpose of isolating and identifying assertions of fact," we must "look to the over-all context in which the assertions were made and determine on that basis whether the reasonable reader would have believed that the challenged statements were conveying facts about the plaintiff" (Davis v. Boeheim, 24 N.Y.3d at 270, 998 N.Y.S.2d 131, 22 N.E.3d 999 [internal quotation marks, ellipsis and citations omitted]; see Brian v. Richardson, 87 N.Y.2d 46, 51, 637 N.Y.S.2d 347, 660 N.E.2d 1126 [1995] ; Loch Sheldrake Beach & Tennis Inc. v. Akulich, 141 A.D.3d 809, 815, 36 N.Y.S.3d 525 [2016], lv. dismissed 28 n.y.3d 1104, 2016 wl 7399944 [2016] ).

Preliminarily, we note that Supreme Court properly found that King's reference to Hull engaging in "price gouging" in the April 2012 letter is a factual statement that has a defamatory meaning, inasmuch as it is capable of being proven true and implies that Hull violated General Business Law § 396–r. Supreme Court erred, however, in finding that statements 2, 4 and 6 were not similarly actionable. These statements constitute mixed opinions, as each includes a strong inference that King knows undisclosed facts that support his conclusion that Hull, among other things, committed grand larceny in the fourth degree and engaged in fraud by overcharging insurance companies (see Baker v. Galusha, 114 A.D.3d at 1125, 981 N.Y.S.2d 198 ; Wilcox v. Newark Val. Cent. School Dist., 74 A.D.3d 1558, 1562, 904 N.Y.S.2d 523 [2010] ; see generally Davis v. Boeheim, 24 N.Y.3d at 269, 998 N.Y.S.2d 131, 22 N.E.3d 999 ). Given that these statements accuse Hull of serious impropriety, they "are sufficiently susceptible to a defamatory meaning to avoid summary judgment" (Baker v. Galusha, 114 A.D.3d at 1125, 981 N.Y.S.2d 198 ; see Loder v. Nied, 89 A.D.3d at 1200, 932 N.Y.S.2d 546 ), and we conclude that Supreme Court erred in granting King's motion with respect to them.

Turning to statements 9 and 10, both are contained in a letter that King sent in response to correspondence from plaintiffs' then-attorney in which the attorney apparently demanded that King apologize and threatened to sue King. Upon our review of these statements, we find that the context, tone and defensive nature of the letter all suggest a "circumstance[ ] in which an audience may anticipate [the use] of epithets, fiery rhetoric or hyperbole" (Steinhilber v. Alphonse, 68 N.Y.2d at 294–, 508 N.Y.S.2d 901, 501 N.E.2d 550 [internal quotation marks and citation omitted]; accord Gentile v. Grand St. Med. Assoc., 79 A.D.3d at 1353, 911 N.Y.S.2d 743 ; see Trustco Bank of N.Y. v. Capital Newspaper Div. of Hearst Corp., 213 A.D.2d 940, 942, 624 N.Y.S.2d 291 [1995] ). Thus, aside from the few factual details regarding Hull's actions, a reasonable reader would conclude that the statements, including King's reference to the letter as a form of "harassment" and his assertion that Hull charged "enormous fees," represented King's opinion (see Steinhilber v. Alphonse, 68 N.Y.2d 283 at 294–295, 508 N.Y.S.2d 901, 501 N.E.2d 550 ; Gentile v. Grand St. Med. Assoc., 79 A.D.3d at 1353, 911 N.Y.S.2d 743 ; Bonanni v. Hearst Communications, Inc., 58 A.D.3d at 1093, 872 N.Y.S.2d 221 ). As for the factual details in the letter, the evidence in the record establishes their truth and, therefore, they are not actionable (see Rinaldi v. Holt, Rinehart & Winston, 42 N.Y.2d 369, 383, 397 N.Y.S.2d 943, 366 N.E.2d 1299 [1977], cert. denied 434 U.S. 969, 98 S.Ct. 514, 54 L.Ed.2d 456 [1977] ; Nekos v. Kraus, 62 A.D.3d 1144, 1145, 878 N.Y.S.2d 827 [2009] ). Moreover, because King's letter was sent in anticipation of litigation and plaintiffs have not shown that the statements made therein were motivated solely by malice (see Liberman v. Gelstein, 80 N.Y.2d 429, 439, 590 N.Y.S.2d 857, 605 N.E.2d 344 [1992] ), we alternatively find that King is entitled to a qualified privilege (see Front, Inc. v. Khalil, 24 N.Y.3d 713, 720, 4 N.Y.S.3d 581, 28 N.E.3d 15 [2015] ).

Turning to the motion by the Town defendants, plaintiffs contend that Supreme Court erred in finding that Kory O'Hara and Chase were entitled to an absolute privilege.² Town supervisors and town board members are afforded absolute immunity from liability for defamation "with respect to statements made during the discharge of those responsibilities about matters which come within the ambit of those duties" (Clark v. McGee, 49 N.Y.2d 613, 617, 427 N.Y.S.2d 740, 404 N.E.2d 1283 [1980] ; accord Fiore v. Town of Whitestown, 125 A.D.3d 1527, 1529, 4 N.Y.S.3d 421 [2015], lv. denied 25 N.Y.3d 910, 2015 WL 3618715 [2015] ). Notwithstanding this absolute immunity, these public officials "may still be sued if the subject of the communication is unrelated to any matters within [their] competence or if the...