Greenky v Joslin

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Greenky v Joslin 2012 NY Slip Op 31915(U) July 16, 2012 Supreme Court, New York County Docket Number: 101174/10 Judge: Debra A. James Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. SCANNED ON 712012012 [* 1] SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY DEBRA A. JAMES PRESENT: PART 59 Justlce ~ SETH GREENKY and GREEN KEY MANAGEMENT, LLC, Plaintiffs, -v- Index No.: 101174/10 Motion Date: 03/16/12 Motion Seq. No.: JEFFREY S . JOSLIN, 3 LEGGED DOG PRODUCTIONS, XCENTRIC VENTURES, LLC, d/b/a RIPOFF REPORT and GOOGLE, INC., Defendants. 04 Motion Cal. No.: FILED I NEW YORK COUNTY CLERKS OFFICE The following papers, numbered 1 to 2 were rezd on this motion to dismiss. PAPERS NUrBERED Notice of MotionlOrder to Show Cause -Affidavits -Exhibits Answering Affidavits - Exhibits Replying Affidavits - Exhibits Cross-Motion: 0 Yes a No Plaintiff, a personal .Manager and agent, brings this action sounding in defamation a g a i n s t a former client based upon statements p o s t e d on an internet website and an email message transmitted to an industry grour,. Individual defendant Jeffrey S. Joslin now moves pursuant t o CPLR 3211 to dismiss plaintiff s complaint. In defamation cases, t h e C o u r t has s t a t e d that The essence of the t o r t of libel is the publication of a statement about an individual that is b o t h f a l s e and defamatory. Since falsity is a necessary element of a libel claim, and o n l y facta are capable of being proven f a l s e , it follows t h a t a Check One: 0 FINAL DISPOSITlf3N Check if appropriate: DO NOT FQST NON-FINAL DISPOSITION 0 REFERENCE [* 2] libel action cannot be maintained unless it is premised on published assertions of fact. Conversely, expression3 of opinion are cloaked with the privilege of speech afforded by the F i r s t Amendment, and false or not, libelous or not, are constitutionally protected and may not be the subject of private damage actions. Distinguishing between protected expressions of opinion and actionable asserti,ons of fact has proven to be a challenging task for the courts. In the past, the Court of Appeals has cited three factors that should 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; (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 i B being read or heard is likely to be opinion, not fact. Guerrero v Carva, 10 AD3d 105, 111-112 ( l EDept 2004) (citations t omitted). The issue on defendant's motion is whether the statements set forth in paragraphs 21 and 62 of the complaint are actionable. Applying the standard set forth by the Court above, this c o u r t now holds that as a matter of law certain of the defendant's statements alleged in the complaint are nonactionable opinion and cannot fopm t h e basis of a defamation claim. The court agrees with plaintiff's argument that defendant's internet-posted statement that piaintiff's "treatment of his talent can be borderline to 'sexu31 harassment' from the times I've seen him interact with the female talent" is capable of a -2- [* 3] defamatory meaning. 3 2 8 , 329 Alianza Dominicans, Inc, v Luna, ( l EDept 1996) t 229 AD2d ("accusations of sexual harassment and sexual abuse are . . . susceptible of a defamatory meaning and would have been understood by a reasonable viewer to be assertions of provable fact . . . notwithstanding t h e cautionary language used") . However, the court finds that t h e remainder of defendant's internet posting as set forth in plaintiff.'s first cause of action in paragraph 21 of the complaint constitutes nonactionable opinion. The statements in the posting comment upon plaintiff's alleged failure to procure work for defendant and otherwise perform h i s duties in the manner plaintiff expected of an agent. The mere expression of unhappiness with manner in which an employee/contractor is failing to carry o u t their duties does not constitute defamation. ArongQn v Wiersma, 65 NY2d 592, 594 (1985); see a169 Williams v Variq Brazilian Airlines, 169 ADZd 434, 438 ( l e t Dept 1991) (cornrnents on employees performance are expressions of opinion which are not actionable). Similarly, the statements set forth in paragraph 62 of the complaint, allegedly contained in an email to t h e president of a professional association, are also expressions of opinion on the alleged conduct of plaintiff as an agent. plaintiff's contract, "obligates me The statement that as talent to everything and obligates him to do nothing', is t o o indefinite to support an -3- [* 4] assertion that it is factual and the statement that t h e plaintiff was "unprofessional" is clearly protected opinion." Amodei v New York S t a t e Chiropractic 'n 1 6 0 AD2d 279, 281 ( l e t Dept 1990) affd 77 N Y 2 d 890 (1991) ("use of the term 'unprofessional conduct' . . . comprises a constitutionally protected expression of opinion"). The other statement "what's appropriate and inappropriate behavior in the work p l a c e toward the same and opposite sex. In my opinion he has crossed that line . . and it c o u l d subject h i m to legal action on the basis that t h a t I witnessed" is defendant's opinion about plaintiff's conduct and is also non-actionable. See K i m , v Dvorak, 230 AD2d 2 8 6 , 291 (3d Dept 1997). Accordingly, it is ORDERED that the motion of JEFFREY S. JOSLIN pursuant to CPLR 3211 seeking to dismiss t h e complaint against h i m is GRANTED and the claims by plaintiff against JEFFREY S. JOSLIN are DISMISSED with the exception of plaintiff's cause of action for defamation based upon the statement \\His treatment of his talent can be borderline to 'sexual harassment' from t h e times I've Seen him interact with the female talent" and this action shall o n l y c o n t i n u e against defendant JEFFREY S. JOSLIN with respect to such claim; and i t is f u r t h e r -4- [* 5] ORDERED t h a t the parties shall appear in IAS P a r t 5 9 , R o o m 103, 71 Thomas Street, N e w York, New York f o r the previously scheduled status conference on September 25, 2012 a t 1 O : O O A . M . This is t h e decision and o r d e r of t h e court. Dated: July 16, 2012 ENTER : FILED NEW YORK COUNTY CLERK'S OFFICE -5-

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