Accusations of Trespass Not Defamation Per Se

On September 30, 2015, Justice Bransten of the New York County Commercial Division issued a decision in EVUNP Holdings LLC v. Fryman, 2015 NY Slip Op. 31840(U), dismissing a defamation claim.

In EVUNP Holdings, the plaintiffs brought an action "related to their collaboration in a business enterprise involving several entities, including" the defendants. One of the plaintiffs' claims was defamation based on an e-mail in which one of the defendants claimed that the individual plaintiff was trespassing. The e-mail said "You have no right to be on the premises . . . Should you fail to leave the premises within the next ten minutes we will contact building security and New York City police and seek to have you arrested for trespass." The court rejected the plaintiffs' argument that this constituted defamation per se, explaining:

A statement will fall into the category of defamation per se when it is so noxious and injurious that the law will presume pecuniary damages and, thus, special damages need not be alleged. Plaintiff correctly notes that one of the categories of per se defamation includes statements charging a plaintiff with a serious crime. However, New York law distinguishes between serious and relatively minor offenses, and only statements regarding the former are actionable without proof of damage. Martin, 105 A.D.3d at 1292.

The Court finds Martin particularly instructive because there, as here, the court considered a defendant's statements charging plaintiff with criminal trespass. The Martin court reasoned that simple trespass - i.e. knowingly entering or remaining unlawfully in or upon premises - does not constitute a serious crime. Because this is precisely the accusation asserted in [the defendant's] December 19, 2013 e-mail, the Court concludes that the December 19, 2013 e-mail does not constitute defamation per se.

(Internal quotations and citations omitted).