Saint David's Sch. v Hume

Saint David's Sch. v Hume 2012 NY Slip Op 08814 Decided on December 20, 2012 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on December 20, 2012
Tom, J.P., Sweeny, DeGrasse, Manzanet-Daniels, Clark, JJ.
8876 653497/11

[*1]Saint David's School, Plaintiff-Appellant,

v

Ben Hume, Defendant-Respondent.




Wilmer Cutler Pickering Hale and Dorr LLP, New York
(Patrick Mair of counsel), for appellant.
Emery Celli Brinckerhoff & Abady LLP, New York (Matthew
D. Brinckerhoff of counsel), for respondent.

Order, Supreme Court, New York County (Barbara R. Kapnick, J.), entered March 26, 2012, which granted defendant's cross motion to dismiss plaintiff's complaint to the extent it is based on the protest placard statements referenced as signs #1 and #3, unanimously affirmed, without costs.

Defendant, a long-standing rent-stabilized tenant in a residential building owned by plaintiff, a private elementary school, became upset when plaintiff commenced a plan to eliminate certain residential apartments so as to expand its classroom space into the building. Defendant alleged that, inter alia, noise, construction debris and the threat of eviction had adversely affected the health of elderly tenants. To protest plaintiff's actions, defendant alone stood outside in front of the school, on several dates, wearing placards that were draped over his body, stating, "DONT [sic] KILL FOR CLASSROOMS," and "RESPONSIBLE PARENTS DON'T IGNORE ABUSE/PROTECT OUR CHILDREN AND DISABLED ELDERLY."

Defendant's statements, viewed by a reasonable reader, in light of the circumstances, are vague exaggerations, if not pure opinion. Accordingly, they constitute nonactionable opinion (see e.g. Steinhilber v Alphonse, 68 NY2d 283, 294-295 [1986]; see generally Gross v New York Times Co., 82 NY2d 146 [1993]). Plaintiff's argument that the statements are actionable as [*2]"mixed opinion" is unavailing. The challenged statements do not suggest the existence of undisclosed facts, and a reasonable reader, under the circumstances, would not infer that defendant alone possessed such facts (see Gross, 82 NY2d at 153-154).

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: DECEMBER 20, 2012

CLERK