Gentile v Grand St. Med. Assoc.

[*1] Gentile v Grand St. Med. Assoc. 2009 NY Slip Op 52853(U) Decided on August 24, 2009 Supreme Court, Ulster County Connolly, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on August 24, 2009
Supreme Court, Ulster County

Lisa Gentile, Plaintiff,

against

Grand Street Medical Associates, Defendants.



08-3595/RJI: 55-08-02069)



Robert D. Cook, Esq.

Cook, Netter, Cloonan, Kurtz & Murphy, P.C.

Attorneys for Defendant

85 Main Street, P.O. Box 3939

Kingston, New York 12402

Alan S. Zwiebel, Esq.

Zwiebel & Fairbanks, LLP

Attorneys for Plaintiff

206 Wall Street

P.O. Box 3907

Kingston, New York 12402-3907

Gerald William Connolly, J.

Defendant moves for an order granting summary judgment dismissing plaintiff's complaint. Plaintiff has cross-moved for summary judgment on the issue of liability. Plaintiff alleges in this action that defendant made libelous and defamatory statements concerning the plaintiff in an "advertisement"published in the Kingston Daily Freeman on May 21, 2008. The "advertisement" was placed in the paper in response by defendant to an article that had been published previously in the Kingston Daily Freeman regarding certain civil lawsuits that had been commenced by former employees of defendant alleging that they were subject to sexual discrimination. [*2]

On May 2, 2008 an article was printed in the Kingston Daily Freeman which reported that defendant was facing its third sexual harassment lawsuit since 2005. The plaintiff was specifically named in this article and it was reported that she had commenced a lawsuit in 2005 against defendant alleging that she had been sexually harassed by an employee of defendant. The article additionally noted that plaintiff's lawsuit was settled in 2005 with confidential status. On May 21, 2008, defendant purchased and published an "advertisement" referencing the May 2, 2008 article in the Daily Freeman. Plaintiff alleges in particular that the "advertisement" contained "libelous and defamatory words of and concerning the plaintiff".

The Court is mindful that summary judgment is a drastic remedy which should only be granted when there clearly are no triable issues of fact (see Andre v. Pomeroy, 35 NY2d 361, 364 [1974]). It is well-settled that "the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact" (Alvarez v. Prospect Hospital, 68 NY2d 320 [1986]). "Failure to make such showing requires denial of the motion, regardless of the sufficiency of the opposing papers" (Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]).

If such right to judgment is established, the burden shifts to the opponent of the motion to establish by admissable proof, the existence of genuine issues of fact (see Zuckerman v. City of New York, 49 NY2d 557 [1980]). It is well established that on a motion for summary judgment, the court's function is issue finding, not issue determination (see Sillman v. Twentieth Century-Fox Film Corp., 3 NY2d 395 [1957]), and all evidence must be viewed in the light most favorable to the opponent to the motion (see Crosland v. New York City Transit Auth., 68 NY2d 165 [1986])."The essence of the tort of libel is the publication of a statement about an individual that is both false and defamatory. Since falsity is the sine qua non of a libel claim and since only assertions of fact are capable of being proven false, we have consistently held that a libel action cannot be maintained unless it is premised on published assertions of fact" (Brian v. Richardson, 87 NY2d 46, 50-51 [1995]).

"Whether a particular statement constitutes an opinion or an objective fact is a question of law. Expressions of opinion, as opposed to assertions of fact, are deemed privileged and, no matter how offensive, cannot be the subject of an action for defamation. Distinguishing between opinion and fact has proved a difficult task, but this Court, in furtherance of that endeavor, has set out the following facts to be considered: (1) whether the specific language in issue has a precise meaning which is readily understood; (2) whether the statements are capable of being proven true or false; and (3) whether either the full context of the communication in which the statement appears or the broader social context and surrounding circumstances are such as to signal ... readers or listeners that what is being read or heard is likely to be opinion, not fact. ...[C]ourts must consider the content of the communication as a whole, as well as its tone and apparent purpose and in particular should look to the over-all context in which the assertions were made and determine on that basis whether the reasonable reader would have believed that the challenged statements were conveying facts about the libel plaintiff" (Mann v. Abel, 10 NY3d 271, 276 [2008] [internal quotations and citations omitted]). "Whether a statement constitutes pure opinion or an actionable factual assertion is a question of law for the court in the first instance and must be answered on the basis of what the reasonable listener would understand the [*3]statement to mean, first considering the content of the whole communication, including its tone and purpose. A mixed statement of opinion and fact is actionable inasmuch as it gives rise to the inference that such statement is based upon certain facts known to the speaker that are undisclosed to the listener and are detrimental to the person who is the subject of the opinion" (Rossi v. Attanasio, 48 AD3d 1025, 1027 [3rd Dept., 2008]).

The particular alleged defamatory statements at issue in the "advertisement"[FN1] are as follows:

"The prior lawsuits mentioned in the Daily Freeman were resolved by the parties on confidential terms with no acknowledgment of any wrongdoing by any parties..."

"Generally, people work hard to make a living and contribute to the community. It is a shame that several people in the community, who do not want to work, hold jobs and want to make easy money, find a few lawyers who make a living exploiting hard working people and corporations. These people lower the standards of both the society and country."

Defendants move for summary judgment dismissing the complaint arguing that (i) there is no indication that plaintiff is the subject of the opinion referenced in the "advertisement", and (ii) there is no statement of fact directly attributable to the plaintiff, but, rather expressions of opinion, and therefore, the statements do not constitute defamation. In support of its motion defendants have offered, inter alia, a copy of the pleadings which include a copy of the "advertisement" at issue.

Plaintiff cross-moves for summary judgment granting liability in favor of plaintiff claiming that she was defamed by the publication of statements which tended to disparage her in the manner in which she performed her employment, suggested that she was a liar for making her claims and that she is lazy and motivated by greed. Plaintiff claims that while she was not specifically named in the "advertisement", such "advertisement" refers to the May 2, 2008 newspaper article which identifies plaintiff specifically and her prior lawsuit, and that the alleged defamatory statements were "of and concerning the plaintiff". Plaintiff further contends that the alleged defamatory statements are asserted as fact or are mixed statements of opinion and fact which are actionable because they give rise to the inference that the statements are based upon facts known by the defendant as the former employer of plaintiff that are not disclosed to the readers.

Initially, based upon the record before the Court, a triable issue of fact exists as to whether or not plaintiff is the subject of the "advertisement". Defendants argue that the "advertisement" contains no direct reference to the plaintiff or any other individuals. Additionally, however, the "advertisement" references that prior lawsuits were "resolved by the parties on confidential terms with no acknowledgment of any wrongdoing by any parties" and the May 2, 2008 article in the Daily Freeman referenced the lawsuit brought by plaintiff against defendant in 2005, specifically referencing the plaintiff. Accordingly, defendant is not entitled to summary judgment relief on such basis.

Defendant also argues, however, that the "advertisement" solely expresses opinions, and therefore, the statements do not constitute defamation.

Based upon the record before the Court, defendant's motion for summary judgment [*4]dismissing the complaint is granted and plaintiff's cross-motion is denied. Upon examination of the "advertisement", it cannot be said that such statements constitute actionable statements of fact concerning the plaintiff, but rather, non-actionable statements of opinion as a matter of law.

Considering the context and content of the "advertisement", a reasonable reader would conclude that the statements at issue were opinion. While not dispositive, the statements were part of a labeled "Paid Advertisement" by defendant and provided that defendant was "responding to an article recently published in the [paper] regarding alleged inappropriate conduct of an employee" that defendant was disputing. The statement that "[i]t is a shame that several people in the community, who do not want to work, hold jobs and want to make easy money, find a few lawyers who make a living exploiting hard working people and corporations" is not a statement capable of being proven false or true but rather, the belief of the writer concerning those people who brought suit against the defendant. Nor is the statement, "[t]hese people lower the standards of both the society and country", a statement of fact, but rather, opinion, as acknowledged by the defendant in its affirmation in opposition. Further, such statements do not discuss plaintiff's work ethics or work habits, nor are such statements an actionable "mixed opinion" as the defendant revealed the factual basis upon which its assertion was based and as a reasonable reader of the "advertisement" would not infer the statement was based on undisclosed facts. Defendant stated in the "advertisement" that it is in response "to an article published in the Daily Freeman regarding alleged inappropriate conduct of an employee", that the information reported in the paper was obtained "solely from allegations in court documents from former employees who are attempting to obtain a money settlement" and that such lawsuit "was brought only after the attorney who filed the lawsuit requested that [defendant] make a monetary settlement...".

Accordingly, it is hereby

ORDERED that defendant's motion seeking summary judgment dismissing plaintiff's complaint is granted, and it is further;

ORDERED that plaintiff's cross-motion seeking partial summary judgment granting liability in favor of plaintiff is denied.

This constitutes the decision and order of the Court. The original decision and order are being returned to the attorney for the defendant. A copy of this decision and order and all other original papers are being delivered to the Ulster County Clerk's Office. The signing of this decision and order and delivery of a copy of the decision and order shall not constitute entry or filing under CPLR § 2220. Counsel is not relieved from the applicable provisions of that rule respecting filing, entry and notice of entry.

SO ORDERED.

ENTER.

Dated at Kingston, NY

August 24, 2009

____________________________

GERALD W. CONNOLLY [*5]

Acting Supreme Court Justice

Papers Submitted:

1.Notice of Motion for Summary Judgment dated January 29, 2009; Affidavit of Robert Cook dated January 29, 2009 with accompanying exhibits; Defendant's Memorandum of Law;

2. Notice of Cross-Motion for Partial Summary Judgment Pursuant to CPLR 3212; Affirmation in Opposition of Alan S. Zwiebel, Esq. with accompanying exhibits;

3.Affidavit in Opposition to Plaintiff's Cross-Motion dated March 12, 2009;

4.Affirmation in Opposition dated March 16, 2009; Affirmation in Opposition dated March 23, 2009;

5.Sur-Reply dated April 1, 2009. Footnotes

Footnote 1:As noted by plaintiff's italicization of such statements in her bill of particulars.