Mogil v. Mark B. Zaia Enterprises, Inc.

• Decision Date: 12 August 1996
• Citation: 230 A.D.2d 778,646 N.Y.S.2d 376
• Parties: , 24 Media L. Rep. 2568 B. Marc MOGIL, Respondent, v. MARK B. ZAIA ENTERPRISES, INC., et al., Appellants.
• Court: New York Supreme Court — Appellate Division

Page 376

646 N.Y.S.2d 376

230 A.D.2d 778, 24 Media L. Rep. 2568

B. Marc MOGIL, Respondent, v. MARK B. ZAIA ENTERPRISES, INC., et al., Appellants.

Supreme Court, Appellate Division Second Department.

Aug. 12, 1996.

Ray E. Shain, P.C., Mineola, for appellants.

Axelrod, Cornachio, Famighetti & Davis, Mineola (Mark S. Ricciardi, of counsel), for respondent.

Before O'BRIEN, J.P., and SULLIVAN, PIZZUTO and JOY, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for defamation, the defendants appeal from an order of the Supreme Court, Nassau County (DiNoto, J.), dated May 22, 1995, which granted the plaintiff's motion for summary judgment and denied the defendants' cross motion for summary judgment.

ORDERED that the order is reversed, on the law, with costs, the plaintiff's motion is denied, the defendants' motion is granted, and the complaint is dismissed.

The plaintiff B. Marc Mogil commenced this action to recover damages for libel arising from a statement the individual defendant, Mark Zaia, made in a letter which the latter sent to the Commission on Judicial Conduct stating, in pertinent part: "I have been mistreated, used and robbed by this Judge". A copy of the letter was also forwarded to Newsday although it did not appear in the newspaper. Zaia wrote the letter to complain about the plaintiff's failure to pay Zaia for services which Zaia performed as a mortgage broker for the plaintiff. Specifically, the plaintiff issued a check to Zaia which the plaintiff subsequently refused to honor. We agree with the defendants' contention that the complaint should be dismissed.

The record demonstrates that the statement complained of constituted nonactionable opinion inasmuch as the statement was a subjective characterization which could not be objectively verified (see generally, Immuno AG. v. Moor-Jankowski, 77 N.Y.2d 235, 566 N.Y.S.2d 906, 567 N.E.2d 1270, cert. denied 500 U.S. 954, 111 S.Ct. 2261, 114 L.Ed.2d 713; Steinhilber v. Alphonse, 68 N.Y.2d 283, 508 N.Y.S.2d 901, 501 N.E.2d 550). Moreover, in examining the statement in the context of the entire letter, we conclude that a reasonable reader would understand the statement to be an expression of pure opinion accompanied by the recitation of the facts upon which it is based rather than a statement of fact or opinion based on undisclosed facts (see generally, Gross v. New York Times Co., 82 N.Y.2d 146, 603 N.Y.S.2d 813, 623 N.E.2d 1163; Steinhilber v. Alphonse, supra; Hollander v....