Seldon v Grapes, the Wine Co.

[*1] Seldon v Grapes, the Wine Co. 2014 NY Slip Op 50543(U) Decided on March 20, 2014 Civil Court Of The City Of New York, New York County Cohen, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 20, 2014
Civil Court of the City of New York, New York County

Philip Seldon, Plaintiff,

against

Grapes, the Wine Company and DANIEL POSNER, Defendants.



CV-20953/13-NY

David B. Cohen, J.

Upon the foregoing cited papers, the decision/order in this motion is as follows:

Defendants' motion to dismiss the Complaint pursuant to CPLR 3211(a) (7) and (c) is granted.

In January 2013, defendants sent plaintiff, via email, an advertisement advising plaintiff [*2]of the availability for purchase of up to 240 bottles of 2009 Cune Vina Rioja Crianza wines. The advertisement stated:

Yesterday, we sampled the 2009 Cune Vina Real Crianza and we were very impressed. The old world style of Rioja is on a roll. Much to the chagrin of Jorge Ordonez and Eric Solomon. Even Robert Parker could not hide his approval of this wine, blasting out a 91 point score on this one. I am not sure what 91 points means these days, but you probably do...

The rest of the advertisement contained a WA score of 91 and a quotation from Robert Parker describing the wine and the $12.99 per bottle price of the wine. Based upon this advertisement and believing that the 2009 Cune Vina Rioja Crianza was the equivalent of a Marquis Riscal, plaintiff purchased six bottles of the offered wine. After receiving the wine, plaintiff did not like the wine, found it mediocre and to be of poor quality and determined based upon his own opinions that the wine was worth no more than seven dollars per bottle. Plaintiff then demanded a refund for the six bottles he purchased. Citing store policy, defendants refused to refund plaintiff but offered to allow plaintiff to return the five unopened bottles for store credit.

As defendants continued to refuse to give plaintiff a refund, plaintiff contested the charge with American Express. After American Express contacted defendants about the contested charge, defendants responded to American Express in a letter stating, "the fact that I have to waste more time in this disgusting human being is quite disturbing." The letter went on to state that should American Express elect to side with plaintiff, defendants would reconsider its relationship with American Express. Shortly thereafter, plaintiff emailed defendants stating that "Isn't war fun" and "I have nothing better to do with my life - this is a funny story for my memoirs." The email subject was "I got a refund and you got a lawsuit - ha ha ha."

Plaintiff then commenced the instant lawsuit. In his complaint, plaintiff alleged that defendants' statement to American Express describing plaintiff as a "disgusting human being" was false, defamatory and libel, per se and sought damages. Plaintiff also alleged that defendants fraudulently induced plaintiff into purchasing the wine and sought damages for such fraud.

"Whether particular words are defamatory presents a legal question to be resolved by the court in the first instance . . ., and if not reasonably susceptible of a defamatory meaning, they are not actionable and cannot be made so by a strained or artificial construction" (Aronson v. Wiersma, 65 NY2d 592 [1985]). Defamation occurs when someone makes a false statement that "tends to expose the plaintiff to public contempt, ridicule, aversion or disgrace, or induce an evil opinion of him in the minds of right-thinking persons, and to deprive him of their friendly intercourse in society" (Manfredonia v. Weiss, 37 AD3d 286 [1st Dept 2007]). The specific elements of a cause of action for defamation are a (1) false statement, (2) published without privilege or authorization to a third party, (3) constituting fault as judged by, at a minimum, a negligence standard, and (4) it must either cause special harm or constitute defamation per se (Dillon v. City of New York, 261 AD2d 34 [1st Dept 1999]). Further, the tort of libel is the publication of a statement about an individual that is both false and defamatory. Since falsity is a sine qua non of a libel claim and since only assertions of fact are capable of being proven false, New York Courts have consistently held that a libel action cannot be maintained unless it is premised on published assertions of fact (Gross v. New York Times Co., 82 NY2d 146 [1993]; [*3]Immuno AG. v. Moor-Jankowski, 77 NY2d 235 [1991]).

Additionally New York Courts have held that certain types of statements are non-actionable. Statements that are expressions of opinion, rather than assertions of fact, no matter how offensive cannot be the basis of a defamation claim (Mann v Abel, 10 NY3d 271 [2008]; Frechtman v. Gutterman, 2014 NY Slip Op 00437 [1st Dept 2014]). Statements are not actionable where they amount to no more than name-calling or a general insult, a type of epithet not to be taken literally and not deemed injurious to reputation (Klepetko v. Reisman, 41 AD3d 551 [2nd Dept 2007]). Similarly, loose, figurative or hyperbolic statements, even if deprecating the plaintiff, are not actionable (Dillon at 38).

To determine whether the challenged statements are non-actionable opinion or assertions of fact, the Court must determine "(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" (Mann at 276). "Courts must consider the content of the communication as a whole, as well as its tone and apparent purpose. Rather than sifting through a communication for the purpose of isolating and identifying assertions of fact, the court 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 plaintiff" (Brian v. Richardson, 87 NY2d 46, 51 [1995]).

In applying these principals of law to the instant case, defendants calling plaintiff "a disgusting human being" does not give rise to actionable defamation or libel. The language, at worst, relates to a "general reflection upon the plaintiff's character or qualities", is not a matter of significance and importance and is not a defamation of a kind incompatible with the proper conduct of plaintiff's business (Aronson at 594). Calling someone "disgusting" is simply name- calling to the typical listener and is not injurious to reputation. Similarly, according the Merriam-Webster dictionary disgusting has several meanings including some that are feelings, making the precise meaning of disgusting not readily understood. Further, taking the entire statement into context, defendants' referring to plaintiff as a "disgusting human being" was a matter of opinion and not a factual assertion. Additionally, the context of the statement makes it clear that tone and purpose of defendants' letter was not to convey anything other than annoyance at the situation and not facts. The Court further finds that calling someone a "disgusting human being" is akin to those cases that found various types of name calling and insults to be non-actionable (see Joseph v. Joseph, 107 AD3d 441 [1st Dept 2013] [calling someone a scorned woman that had a maniacal rage and went into terroristic binges was not actionable]; Farber v. Jefferys, 103 AD3d 514 [1st Dept 2013] [calling someone a liar was not actionable]; Galasso v. Saltzman, 42 AD3d 310 [1st Dept 2007] [referring to someone as "no good" and a "criminal" was opinion and are not actionable as a matter of law]; Shinn v. Williamson, 225 AD2d 605 [2nd Dept 1996] [statement on record jacket cover calling plaintiff a "Two-Faced Backstabber" constituted personal opinion and rhetorical hyperbole rather than objective fact, so that it is constitutionally protected]; Polish American Immigration Relief Committee, Inc. v. Relax, 189 AD2d 370 [1st Dept 1993] [where no reasonable person would conclude that actual criminality was charged by [*4]the epithets "thieves" and "false do-gooders," the statements were held to be pure opinion]).

Plaintiff's second cause of action for fraudulent inducement is also dismissed. In order to plead a prima facie case of fraud, a plaintiff must allege each of the elements of fraud with particularity and must support each element with an allegation of fact (Fink v. Citizens Mortg. Banking Ltd., 148 AD2d 578 [2nd Dept 1989]). To plead a prima facie case of fraud the plaintiff must allege representation of a material existing fact, falsity, scienter, deception and injury (Lanzi v. Brooks, 54 AD2d 1057 [3rd Dept 1976]). Plaintiff has not made out a prima facie case on several of the elements. Plaintiff has focused his fraud claim on the fact that defendant represented the wine as a 91 point wine. The advertisement states that even Robert Parker rated this as a 91 point wine and continued that defendants were not sure what a 91 point wine was anymore. Plaintiff alleges that this advertisement fraudulently induced him into buying the wine. However, plaintiff does not provide even a scintilla of evidence that the advertisement contained any fraud at all. Plaintiff does not allege that Robert Parker did not rate this wine 91 points and plaintiff has acknowledged that defendants did not themselves give the wine a rating. Rather, plaintiff assumed on his own that the wine was "even better than a Marquis de Riscal" and decided to purchase the wine based upon this. When the wine did not measure up to his subjective tastes, he decided that the wine was not as advertised. However, plaintiff has not demonstrated at even the minimum prima facie level that any deception took place, that there was any falsity or anything other than plaintiff's assumptions were incorrect. Thus, the second cause of action is dismissed.

This constitutes the decision and order of the Court. The Clerk of the Court is directed to mail a copy of this decision to the parties.

Dated: ___________________

____________________________

Hon. David B. Cohen