Did General Manager & Superintendent State Legally Cognizable Claims?
North Shore Towers Apartments Incorporated is a residential cooperative complex located in Queens. Glen Kotowski and Steven Cairo are employed as the general manager and general superintendent of the complex, respectively. They commenced an action to recover damages for allegedly defamatory statements made by Eric Kozminsky, a resident of the complex. The allegedly defamatory statements about Kotowksi, Cairo and conditions at the buildings, were made through a post on the social networking website NextDoor.com. In the post, Kozminsky, inter alia, reproduced extensive excerpts of filings in an action brought against NST, Cairo, and Kotowski by a former NST employee, and urged other residents to vote in an upcoming election for the NST’s board for directors who would replace the management of the complex. Kozminsky moved to dismiss the amended complaint. Supreme Court denied the motion. Kozminsky appeals.
The elements of a cause of action for defamation are (a) a false statement that tends to expose a person to public contempt, hatred, ridicule, aversion, or disgrace, (b) published without privilege or authorization to a third party, (c) amounting to fault as judged by, at a minimum, a negligence standard, and (d) either causing special harm or constituting defamation per se. 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. Thus, an expression of pure opinion is not actionable, no matter how vituperative or unreasonable it may be. And whether a particular statement constitutes an opinion or an objective fact is a question of law.
In addition, Civil Rights Law § 74 provides that “[a] civil action cannot be maintained against any person, firm or corporation, for the publication of a fair and true report of any judicial proceeding, legislative proceeding or other official proceeding.” For a report to be characterized as ‘fair and true’ within the meaning of the statute, thus immunizing its publisher from a civil suit sounding in libel, it is enough that the substance of the article be substantially accurate. Comments that essentially summarize or restate the allegations of a pleading filed in an action are the type of statements that fall within the statute’s privilege.
Here, the complaint failed to state a cause of action to recover damages for defamation. The quotations from separate proceedings against NST, Kotowksi and Cairo fell within the absolute privilege afforded by Civil Rights Law § 74. Some of the remaining comments constituted rhetorical hyperbole, some lacked a precise meaning, and some were not capable of being proven true or false. Given the context and tone of those statements, a reasonable reader would have concluded that they were reading opinions, rather than facts, about NST, Kotowski and Cairo.
Accordingly, Supreme Court should have granted Kozminsky’s motion to dismiss the complaint.