Silsdorf v. Levine

• Decision Date: 03 May 1983
• Citation: 462 N.Y.S.2d 822,59 N.Y.2d 8,449 N.E.2d 716
• Parties: , 449 N.E.2d 716, 9 Media L. Rep. 1815 Arthur R. SILSDORF, Appellant, v. Harry LEVINE et al., Respondents.
• Court: New York Court of Appeals Court of Appeals

Page 822

462 N.Y.S.2d 822

59 N.Y.2d 8, 449 N.E.2d 716, 9 Media

L. Rep. 1815

Arthur R. SILSDORF, Appellant, v. Harry LEVINE et al., Respondents.

Court of Appeals of New York.

May 3, 1983.

Milton S. Teicher, New York City, for appellant.

Robert E. Zimet, Allen G. Reiter and Mark E. Herlihy, New York City, for respondents.

OPINION OF THE COURT

WACHTLER, Judge.

At issue on this appeal is the scope of constitutional protection to be afforded allegedly defamatory statements, expressed in the form of opinions concerning plaintiff's performance while in public office. We hold that, in the procedural posture in which this case reaches us, plaintiff's allegations are legally sufficient to state a cause of action for defamation. The complained of statements, although constituting opinions and therefore entitled to a measure of constitutional protection, may nevertheless form the basis for a defamation claim, inasmuch as plaintiff has alleged that the facts set forth by defendants in support of their opinions are false. Accordingly, defendants' motion to dismiss for failure to state a cause of action should have been denied.

Plaintiff, an attorney admitted to practice in the State of New York, served as Mayor of the Village of Ocean Beach from 1956 until he lost his bid for reelection in 1978. During the course of the 1978 campaign, an open letter concerning plaintiff's administration of the affairs of Ocean Beach was circulated to the village residents. Written upon the stationery of the Citizens Party of Ocean Beach, an unincorporated association which opposed plaintiff's reelection, and signed by four former trustees of the village, the letter expressed concern over perceived conflicts of interest and improper conduct on the part of plaintiff in his capacity as Mayor and urged that plaintiff not be reelected.

Specifically, the letter states that plaintiff had found his public office increasingly helpful to his private law practice and that business promoters, seeing the opportunity to make money in Ocean Beach, "have found it pays to do business with the mayor". In addition to the allegation that he unethically represented clients whose interests were adverse to those of the village residents, plaintiff was accused of flagrantly disregarding the authority of the village board of trustees, "by relieving the elected members of the Board of their assigned duties, resulting in one-man rule", granting written authorization to a restaurant to bring excursion boats to Ocean Beach in violation of a village ordinance and permitting a lateral ferry to dock at 2:00 a.m. contrary to a board determination. The letter points out that plaintiff failed to intervene in a proceeding pending before the State Liquor Authority involving a particularly troublesome local bar. Rather than seeking to have the bar's license suspended or revoked, plaintiff allegedly represented the bar in this proceeding. The letter also states that village residents had gone to court to prevent plaintiff from improperly issuing a commercial building permit to one of his private clients.

Having set forth these examples of plaintiff's perceived misconduct in public office, the penultimate paragraph of the letter states: "There are many of us who recognize Arthur Silsdorf's [plaintiff's] service to the village in the past, and who have supported him in the past. But we also recognize that 'power tends to corrupt, and absolute power corrupts absolutely'. There is no longer any question about the corruptness of Arthur Silsdorf's administration of the affairs of the Village of Ocean Beach." It is this paragraph upon which plaintiff's action for defamation, brought after his reelection defeat, primarily focuses. Plaintiff's complaint, asserting a cause of action against the four signatories of the letter, as well as the officers of the Citizens Party of Ocean Beach, alleges that defendants, through the letter, falsely charged plaintiff with criminal corruption, the sale of favors in his official capacity and corruptly profiting in his private law practice at the expense of the village. Defendants, it is further alleged, published these defamatory statements with actual malice, in that they knew or should have known that the statements made were untrue.

Defendants moved to dismiss the complaint upon the ground that it failed to state a cause of action in that the statements complained of were constitutionally protected expressions of opinion for which liability in defamation may not be imposed. Special Term's order denying the motion to dismiss was reversed by the Appellate Division, with two Justices dissenting, 85 A.D.2d 297, 447 N.Y.S.2d 936. A majority of the Appellate Division agreed with defendants that the complaint fails to state a claim for libel, because the alleged defamatory statements are nonactionable opinions. The court also noted that dismissal of the complaint was mandated upon the further ground that plaintiff's claim of actual malice "falls by the wayside" in view of his failure to contest the facts upon which the opinions were based. We now reverse the order of the Appellate Division.

The issues raised on this appeal come before the court in the procedural posture of a motion to dismiss the complaint for failure to state a cause of action. Thus, we accept as true each and every allegation made by plaintiff and limit our inquiry to the legal sufficiency of plaintiff's claim. 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 (219 Broadway Corp. v. Alexander's, Inc., 46 N.Y.2d 506, 509, 414 N.Y.S.2d 889, 387 N.E.2d 1205).

Initially, we note the well-established principle that it is for the court to decide whether the statements complained of are "reasonably susceptible of a defamatory connotation", thus warranting submission of the issue to the trier of fact (James v. Gannett Co., 40 N.Y.2d 415, 419, 386 N.Y.S.2d 871, 353 N.E.2d 834; Mencher v. Chesley, 297 N.Y. 94, 100, 75 N.E.2d 257). The entire publication, as well as the circumstances of its issuance, must be considered in terms of its effect upon the ordinary reader. We have no difficulty in concluding that the statements identified by plaintiff as defamatory, hold him up to public disgrace and contempt so as to render them, if false, libelous (Rinaldi v. Holt, Rinehart & Winston, 42 N.Y.2d 369, 379, 397 N.Y.S.2d 943, 366 N.E.2d 1299, cert. den. 434 U.S. 969, 98 S.Ct. 514, 54 L.Ed.2d 456). Clearly, false statements that "it pays to do business with the mayor", that plaintiff is profiting in his private law practice at the village's expense and that his administration is corrupt, having great potential for injury to plaintiff's reputation, are capable of being interpreted as defamatory.

That the statements may be defamatory does not, of course, end our inquiry, for defendants have urged that the statements are constitutionally protected as expressions of opinion. Whether the statements constitute fact or opinion is a question of law for the court to decide (Rinaldi v. Holt, Rinehart & Winston, supra, at p. 381, 397 N.Y.S.2d 943, 366 N.E.2d 1299). Although the distinction between fact and opinion may be difficult to draw in some cases, the conclusory statements in defendants' letter concerning plaintiff's performance and qualifications as Mayor are clearly set forth in the form of opinion. As such, they are entitled to a certain measure of constitutional protection (Gertz v. Robert Welch, Inc., 418 U.S. 323, 339-340, 94 S.Ct. 2997, 3006-3007, 41 L.Ed.2d 789; Rinaldi v. Holt, Rinehart & Winston, supra, at pp. 380-381, 397 N.Y.S.2d 943, 366 N.E.2d 1299; Cianci v. New Times Pub. Co., 639 F.2d 54, 61-64 (2nd Cir.1980)). This extraordinary protection of possibly defamatory statements is justified by our commitment to the principle that free and open debate on matters of public concern is not to be discouraged...