O'Loughlin v. Patrolmen's Benev. Ass'n of City of New York, Inc.

• Decision Date: 03 December 1991
• Citation: 178 A.D.2d 117,576 N.Y.S.2d 858
• Parties: , 19 Media L. Rep. 1735 Brian O'LOUGHLIN, Plaintiff-Appellant, v. The PATROLMEN'S BENEVOLENT ASSOCIATION OF the CITY OF NEW YORK, INC., and Phil Caruso, Defendants-Respondents.
• Court: New York Supreme Court — Appellate Division

Page 858

576 N.Y.S.2d 858

178 A.D.2d 117, 19 Media L. Rep. 1735

Brian O'LOUGHLIN, Plaintiff-Appellant, v. The PATROLMEN'S BENEVOLENT ASSOCIATION OF the CITY OF NEW YORK, INC., and Phil Caruso, Defendants-Respondents.

Supreme Court, Appellate Division First Department.

Dec. 3, 1991.

Before ROSENBERGER, J.P., and KUPFERMAN, SMITH and RUBIN, JJ.

MEMORANDUM DECISION.

Order of the Supreme Court, Bronx County (Barry Salman, J.), entered August 20, 1990 which, inter alia, granted defendants' motion to dismiss this defamation action for failure to state a cause of action (CPLR § 3211[a][7], unanimously affirmed, without costs.

This dispute arises out of a letter written by Defendant Phil Caruso, president of defendant Patrolmen's Benevolent Association ("PBA"), which was reproduced in the PBA's official publication, "New York's Finest" magazine. The letter concerns a $20 contribution which was deducted from PBA members' paychecks and which was donated by the organization to help build a memorial for police officers killed in the line of duty. Plaintiff suggested that the money would be better spent on bullet-proof vests and other equipment "to improve the safety of cops" and "to prevent the death of our police officers" and asked that his contribution be applied to such an endeavor or promptly returned to him. In his letter, Caruso ignored plaintiff's suggestions, asserting that plaintiff and eight other officers who requested refunds of this contribution "have no feelings" and "are a disgrace" to the police force. Plaintiff brought this action alleging that Caruso's remarks are false and defamatory. Defendants successfully moved for dismissal of the complaint on the ground that it fails to state a cause of action.

The standard to be applied on such a motion is stated in Silsdorf v. Levine, 59 N.Y.2d 8, 12, 462 N.Y.S.2d 822, 449 N.E.2d 716, cert. denied 464 U.S. 831, 104 S.Ct. 109, 78 L.Ed.2d 111: "If, upon any reasonable view of the stated facts, plaintiff would be entitled to recovery for defamation, the complaint must be deemed to sufficiently state a cause of action" (citing, 219 Broadway Corp. v. Alexander's, Inc., 46 N.Y.2d 506, 509, 414 N.Y.S.2d 889, 387 N.E.2d 1205). An allegedly defamatory statement is not actionable if it is an expression of pure opinion, no matter how vituperative or unreasonable it may be (Steinhilber v. Alphonse, 68 N.Y.2d 283, 289, 508 N.Y.S.2d 901, 501 N.E.2d 550). The distinction between fact and opinion is made "on the basis of what the average person hearing or reading the communication would take it to mean" (Parks v. Steinbrenner, 131 A.D.2d 60, 63, 520 N.Y.S.2d 374), and four factors are considered in making this assessment: (1) whether the...