Statement That Counterclaimants Were "Scammers," "Con Artists" and "Thieves" Basis for Defamation Claim

On January 8, 2020, the Second Department issued a decision in Levy v. Nissani, 2020 NY Slip Op. 00113, holding that a statement that the counterclaimants were "scammers," "con artists" and "thieves" was a sufficient basis for a claim for defamation, explaining:

The elements of a cause of action sounding in defamation are (1) a false statement that tends to expose a person to public contempt, hatred, ridicule, aversion, or disgrace, (2) published without privilege or authorization to a third party, (3) amounting to fault as judged by, at a minimum, a negligence standard, and (4) either causing special harm or constituting defamation per se. A statement is defamatory per se if it (1) charges the plaintiff with a serious crime; (2) tends to injure the plaintiff in her or his trade, business or profession; (3) imputes to the plaintiff a loathsome disease; or (4) imputes unchastity to a woman.

Since falsity is a necessary element of a defamation cause of action and only facts are capable of being proven false, it follows that only statements alleging facts can properly be the subject of a defamation action. A pure opinion may take one of two forms. It may be a statement of opinion which is accompanied by a recitation of the facts upon which it is based, or it may be an opinion not accompanied by such a factual recitation so long as it does not imply that it is based upon undisclosed facts. Conversely, an opinion that implies that it is based upon facts which justify the opinion but are unknown to those reading or hearing it, is a mixed opinion and is actionable. The latter is actionable not because they convey false opinions but rather because a reasonable listener or reader would infer that the speaker knows certain facts, unknown to the audience, which support the opinion and are detrimental to the person toward whom the communication is directed.

Whether a particular statement constitutes an opinion or an objective fact is a question of law. In distinguishing between facts and opinion, the factors the court must consider are (1) whether the specific language has a precise meaning that is readily understood, (2) whether the statements are capable of being proven true or false, and (3) whether the context in which the statement appears signals to readers or listeners that the statement is likely to be opinion, not fact. The essential task is to decide whether the words complained of, considered in the context of the entire communication and of the circumstances in which they were spoken or written, may be reasonably understood as implying the assertion of undisclosed facts justifying the opinion.

Here, the first and second counterclaims are each predicated on the statements made by the plaintiff at the synagogue before the entire congregation, to the Rabbi and the synagogue's president, and outside the synagogue in the presence of others, that the Nissanis were "scammers" or "con artists" and "thieves," that "if they ask you to do any business with them, or to invest with them, then you definitely should not," and that "I'm going to be on your ass until I get my money... You are thieves."

The plaintiff failed to establish, prima facie, that these statements did not constitute false assertions of fact. Viewed in the context in which the allegedly defamatory statements were made, a reasonable listener would likely understand those statements to imply that the Nissanis swindled the plaintiff out of money in connection with their business. The statements can readily be proven true or false and, given the tone and overall context in which the statements were made, signaled to the average listener that the plaintiff was conveying facts about the Nissanis.

Even if the challenged statements had not conveyed assertions of fact, they would nonetheless be actionable as mixed opinion, since a reasonable listener would have inferred that the plaintiff had knowledge of facts, unknown to the audience, which supported the assertions he made.

The plaintiff also failed to establish, prima facie, that the challenged statements were not defamatory per se, since they charged the Nissanis with the commission of a serious crime and would tend to injure the Nissanis in their business by imputing fraud, dishonesty, misconduct, or unfitness in conducting their profession.

(Internal quotations and citations omitted).

Civil litigation can involve claims that cause real reputational harm, but not every statement can be the subject of a defamation claim. Contact Schlam Stone & Dolan partner John Lundin at jlundin@schlamstone.com if you or a client have questions about whether statements about you or your business can be the basis for a claim for defamation.