Field v Grant

[*1] Field v Grant 2010 NY Slip Op 52367(U) [30 Misc 3d 1217(A)] Decided on December 29, 2010 Supreme Court, Suffolk County Whelan, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 29, 2010
Supreme Court, Suffolk County

Gary P. Field, ESQ., Plaintiff,

against

Robert Grant, Defendant.



10-34898



GARY P. FIELD, ESQ.

Plaintiff Pro Se

425 New York Ave.

Huntington, NY 11743

SALLAH LAW FIRM, PC

Attys. For Defendant

110 Washington Ave.

Holtsville, NY 11742

Thomas F. Whelan, J.

Upon the following papers numbered 1 to11read on this motionfor discovery and cross motion for dismissal; Notice of Motion/Order to Show Cause and supporting papers 1 - 3 ; Notice of [*2]Cross Motion and supporting papers4-7; Answering Affidavits and supporting papers; Replying Affidavits and supporting papers8-9; 10-11; Other; (and after hearing counsel in support and opposed to the motion) it is,

ORDERED that defendant's cross motion (#002) for an order dismissing the complaint served and filed in this action is considered under CPLR 3211(a)(7) and is granted; and it is further

ORDERED that the plaintiff's motion (#001) for an order compelling discovery of the hard drive of the defendant's personal computer is denied as academic.

The plaintiff, an experienced attorney who practices law in Suffolk County, commenced this action to recover damages allegedly incurred as a result of the publication of purportedly defamatory comments that were posted on two websites. Although the postings were made anonymously, the plaintiff claims that the defendant, the husband of a former matrimonial client of the plaintiff, authored the postings and is liable for the damages which the plaintiff allegedly sustained. The postings are alleged by the plaintiff to constitute libel per se in as much as, they purport to denigrate the plaintiff with respect to his profession as an attorney.

The complained of comments that were posted on the website, known as "Rippoff Report" include the following: "Gary P. Field Fool Attorney who practices Fraud . . . Gary Field a/k/a "the Walking Fool" is the most worst attorney licensed to practice in the State of New York . . ., Overall, he is dumb . . ." The other comments complained of by the plaintiff were posted on a website title Lawyer Rating Z: "I hired Gary P. Field and he screwed up my divorce. Residence [sic] of Suffolk County have a right to expect that a witness/lawyer who testified before the Supreme Court will tell the truth. The court system cannot function if witnesses/lawyers are not held accountable for false statements made under oath. If a witness makes a choice to ignore his obligation to testify honestly there must be consequences." The plaintiff alleges that these writings and others [FN1] constitute libel per se because they charge the plaintiff with making false statements under oath and were done with intent to injure the plaintiff in his business and/or profession.

By the instant motion (#001), the plaintiff demands an order compelling the defendant to produce the hard drive of his personal computer so that a computer expert and/or technician can clone it and determine the defendant's internet usage during the months of August and September of 2010. The defendant cross moves for dismissal of the complaint pursuant to CPLR 3211(a)(7) and for sanctions. For the reasons set forth below, the defendant's motion is granted to the extent that the complaint is dismissed.

In considering a motion to dismiss pursuant to CPLR (a)(7), the court must afford the complaint a liberal construction and determine only whether the facts, as alleged, fit within any [*3]cognizable legal theory (see Reiver v Burkhardt, Wexler & Hirschberg, LLP, 73 AD3d 1149, 901 NYS2d 690 [2d Dept 2010]). If the court can determine that the plaintiff is entitled to relief on any view of the facts alleged, its inquiry is complete and the complaint must be declared legally sufficient (see Symbol Tech. v Deloitte & Touche, LLP, 69 AD3d 191, 888 NYS2d 538 [2d Dept 2009]). The elements of a cause of action for defamation are "a false statement, published without privilege or authorization to a third party, constituting fault as judged by, at a minimum, a negligence standard, and it must either cause special harm or constitute defamation per se" (Salvatore v Kumar, 45 AD3d 560, 563, 845 NYS2d 384 [2d Dept 2007], lv den., 10 NY3d 703, 854 NYS2d 104, 883 NE2d 1011 [2008]).

Expressions of opinion, as opposed to assertions of fact, are deemed privileged and, no matter how offensive, cannot be the subject of an action to recover damages (see Mann v Abel, 10 NY3d 271, 856 NYS2d 31 [2008]). The issue of distinguishing between actionable fact and non-actionable opinion is a question of law for the court (see Gjonlekaj v Sot, 308 AD2d 471, 764 NYS2d 278 [2d Dept 2003]). Context is the key as assertions that a person is guilty of blackmail, fraud, corruption and the like in certain contexts have been found to be understood by the reader or listener to be rhetorical hyperbole or vigorous epithet (see Gross v New York Times, Co., 82 NY2d 146, 603 NYS2d 813 [1993]; Steinhilder v Alphonse, 68 NY2d 283, 508 NYS2d 901 [1986]). The court's determination should be based on its consideration of the overall context in which the assertions were made and determined on that basis whether the reasonable reader would have believed that the subject statements were conveying facts about the plaintiff or the opinion of the writer or speaker (see Gross v New York Times Co., 82 NY2d 146, supra; Spinner v Almmstaser, 75 AD3d 539, 904 NYS2d 765 [2d Dept 2010]). The nature of the forum is equally important (see Brian v Richardson, 87 NY2d 46, 632 NYS2d 347 [1995]; Penn Warranty Corp v DiGiovanni, 10 Misc 3d 998, 810 NYS2d 807 [Sup. Ct. New York Cty. 2005]). If the language employed constitutes a general reflection on a person's character or qualities, it is not a matter of such significance and importance as to amount to defamation (see Aronson v Wiersma, 65 NY2d 592, 493 NYS2d 1138 [1985]; Rufeh v Schwartz, 50 AD3d 1002, 858 NYS2d 194 [2d Dept 2008]; Zysk v Fidelity, Title Ins. Co. of NY, 14 AD3d 609, 790 NYS2d 135 [2d Dept 2005]).

Upon application of the foregoing principles to the instant case, the court finds that the complained of comments purportedly posted by the defendant on the identified web pages are not actionable as they constitute mere opinions of the writer. Viewed in the context in which they were relayed and the website forums on which they were posted, the comments constitute pure opinions which cast general reflections upon the plaintiff's character and/or qualities which are not a matter of such significance and importance so as to amount to actionable defamation (see Brian v Richardson, 87 NY2d 46, supra; Penn Warranty Corp v DiGiovanni, 10 Misc 3d 998, supra). Therefore, those portions of the defendant's motion wherein he seeks dismissal of the plaintiff's complaint pursuant to CPLR 3211(a)(7) are granted.

The court denies the remaining portions of the defendant's cross motion wherein he demands sanctions pursuant to 22 NYCRR Part 130-1. The moving papers failed to demonstrate that the conduct of the plaintiff complained on the part of the defendant constitutes "frivolous conduct" [*4]within the meaning of 22 NYCRR Part 130-1.

In view of the foregoing, the cross motion is granted to the extent that the plaintiff's complaint is dismissed pursuant to CPLR 3211(a)(7). The plaintiff's motion in chief to compel production of the defendant's personal computer hard drive is denied as academic.

DATED: _________________________________________________

THOMAS F. WHELAN, J.S.C. Footnotes

Footnote 1: The plaintiff also complains about an earlier posting on the LawyerRating Z website in March of 2010. However, this posting is not within the contemplation of the plaintiff's motion as he seeks reproduction of the data on the hard drive of the defendant's personal computer only with respect to internet usage in August and September of 2010, when the other postings were allegedly made.