Rothman v. Sternberg

• Decision Date: 15 August 1994
• Citation: 615 N.Y.S.2d 748,207 A.D.2d 438
• Parties: Jessel ROTHMAN, P.C., et al., Appellants, v. Frank STERNBERG, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 748

615 N.Y.S.2d 748

207 A.D.2d 438

Jessel ROTHMAN, P.C., et al., Appellants, v. Frank STERNBERG, Respondent.

Supreme Court, Appellate Division,

Second Department.

Aug. 15, 1994.

Jessel Rothman, P.C. (Kim Cardalena of counsel), appellant pro se, and for the other appellant.

Marger, Meltzer & Gray, White Plains (Zabathy E. Meltzer and Arnold S. Kronick, of counsel), for respondent.

Before MANGANO, P.J., and BRACKEN, PIZZUTO and HART, JJ.

MEMORANDUM BY THE COURT.

In an action, inter alia, to recover damages for defamation, the plaintiffs appeal from so much of an order of the Supreme Court, Nassau County (Kohn, J.), dated October 28, 1992, as granted the defendant's motion for partial summary judgment dismissing the defamation cause of action.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The plaintiffs Jessel Rothman, an attorney, and Jessel Rothman, P.C. commenced this action, inter alia, to recover damages for defamation arising out of an allegedly defamatory letter written by the defendant Frank Sternberg which he sent to the plaintiffs' client, a primary competitor of the business in which the defendant was an owner. In the letter, the defendant warned the competitor that he planned to sue it because of the damages suffered by the defendant's company due to litigation over the ownership of the defendant's company. The plaintiffs were retained to represent the defendant's adversary in that litigation. The defendant also stated in the letter that the plaintiff Jessel Rothman, whom he believed to be a director, officer, and shareholder of the competing company, was destroying the defendant's company by his unethical business practices. The Supreme Court dismissed the plaintiffs' defamation cause of action. We affirm.

We agree with the Supreme Court that the statements made in the letter by the defendant do not constitute libel per se and, therefore, the cause of action based upon those statements was properly dismissed (see, Aronson v. Wiersma, 65 N.Y.2d 592, 493 N.Y.S.2d 1006, 483 N.E.2d 1138). The issue of "whether particular words are defamatory presents a legal question to be resolved by the court" (Aronson v. Wiersma, supra, at 592, 493 N.Y.S.2d 1006, 483 N.E.2d 1138). The words must be construed in the context of the entire statement, interpreted based on the understanding of the reasonable person and if not reasonably susceptible of a defamatory meaning, then the words are not actionable (see, Aronson v. Wiersma, supra, at 594, 493 N.Y.S.2d 1006, 483 N.E.2d 1138). With regard to whether an opinion is actionable, the key issue to decide is whether the challenged statements reasonably appear to contain "assertions of objective fact" (Immuno AG. v. Moor-Jankowski, 77 N.Y.2d 235, 243, 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).

The issue of whether an objective fact is asserted is resolved by deciding whether the statement is verifiable as either true or false. The approach involved in making such a decision is to look at the meaning of the statement by examining the language used in its immediate context and in its full context, and to evaluate the purpose of the whole communication; if a statement is not verifiable, then a plaintiff cannot prove it false, and the statement cannot be actionable (see generally, Milkovich v. Lorain Journal Co., 65 Ohio App.2d 143, 19 O.O.3d 99, 416 N.E.2d 662, cert. denied 449 U.S. 966, 101 S.Ct. 380, 66 L.Ed.2d 232).

Our review of the letter convinces us that the statements were not reasonably susceptible of a defamatory meaning (see, Aronson v. Wiersma, supra, 65 N.Y.2d at 594, 493 N.Y.S.2d 1006, 483 N.E.2d 1138), but instead consisted of nonactionable statements of personal opinion. We further find, alternatively, that the challenged statements were nonactionable because they did not impute to the plaintiff incompetence, incapacity, or unfitness in the performance of his profession as an attorney. Rather the letter was directed at the business practices of a competing business entity (see, Van Lengen v. Parr, 136 A.D.2d 964, 525 N.Y.S.2d 100).

MANGANO, P.J., BRACKEN and PIZZUTO, JJ., concur.

HART, Justice, dissents, and votes to reverse the order insofar as appealed from, on the law, to deny the defendant's motion, and to reinstate the cause of action to recover damages for defamation, with the following memorandum:

The plaintiffs Jessel Rothman and Jessel Rothman, P.C. commenced this action,...