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Court Denies Motion to Dismiss Defamation Claim, Explaining the Difference Between an Expression of Fact and Opinion

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  • Posted on: Jan 13 2020

John loans Jane money to help Jane grow her company. Unfortunately, Jane fails to repay John as promised. John demands that the Jane repay him. In front of a group of people known to both John and Jane, John calls Jane a “scammer”, a “thief” and a “con artist.” John sues Jane for breach of contract and fraud. Jane counterclaims, alleging that John defamed her in front of their friends.

The foregoing fact pattern is not uncommon. Prospective clients often tell lawyers of such incidents.

Sometimes the alleged defamation is found in social media. Again, it is not uncommon for a person to post a negative comment about a business, claiming that he/she was scammed or taken by the business owner.

The question for the lawyer is whether such name calling is actionable for purposes of a defamation claim? In Levy v. Nissani, 2020 N.Y. Slip Op. 00113 (2d Dept. Jan. 8, 2020) (here), the Court held that such statements were actionable as they were capable of being proven false.

Defamation and the Difference Between a Statement of Fact and An Expression of Opinion

The elements of a cause of action sounding in defamation are: (1) a false statement that tends to expose a person to public contempt, hatred, ridicule, aversion, or disgrace; (2) published without privilege or authorization to a third party; (3) amounting to fault as judged by, at a minimum, a negligence standard; and (4) either causing special harm or constituting defamation per se. See Kasavana v. Vela, 172 A.D.3d 1042, 1044 (2d Dept. May 15, 2019); Stone v. Bloomberg L.P., 163 A.D.3d 1028, 1029 (2d Dept. 2018); Greenberg v. Spitzer, 155 A.D.3d 27, 41 (2d Dept. 2017). A statement is defamatory per se if it (1) charges the plaintiff with a serious crime; (2) tends to injure the plaintiff in her or his trade, business or profession; (3) imputes to the plaintiff a loathsome disease; or (4) imputes unchastity to a woman. Liberman v. Gelstein, 80 N.Y.2d 429, 435 (1992).

Where the plaintiff is a public figure, the plaintiff is required to prove, by clear and convincing evidence, that the defamatory statements were published with actual malice. Mahoney v. Adirondack Publ. Co., 71 N.Y.2d 31, 39 (1987).

“Truth is an absolute defense to an action based on defamation.” Heins v. Board of Trustees of Inc. Vil. of Greenport, 237 A.D.2d 570, 571 (2d Dept. 1997); Goldberg v. Levine, 97 A.D.3d 725, 726 (2d Dept. 2012). Therefore, to satisfy the falsity element of a defamation claim, a plaintiff must allege that the complained of statement is “substantially false.” “If an allegedly defamatory statement is ‘substantially true,’ a claim of libel is ‘legally insufficient and … should [be] dismissed.’” Biro v. Condé Nast, 883 F. Supp. 2d 441, 458 (S.D.N.Y. 2012) (ellipsis and alteration in original), quoting Guccione v. Hustler Mag., Inc., 800 F.2d 298, 301 (2d Cir. 1986) (applying New York law). The test to determine whether a statement is substantially true “is whether [the statement] as published would have a different effect on the mind of the reader from that which the pleaded truth would have produced.” Fleckenstein v. Friedman, 266 N.Y. 19, 23 (1934); Franklin v. Daily Holdings, Inc., 135 A.D.3d 87, 94 (1st Dept. 2015). It is well settled “that an alleged libel is not actionable if the published statement could have produced no worse an effect on the mind of a reader than the truth pertinent to the allegation.” Guccione, 800 F.2d at 302, citing Fleckenstein, 266 N.Y. at 23. See also Fulani v. New York Times Co., 260 A.D.2d 215 (1st Dept. 1999).

“Since falsity is a necessary element of a defamation cause of action and only facts are capable of being proven false,” then “only statements alleging facts can properly be the subject of a defamation action.” Gross v. New York Times Co., 82 N.Y.2d 146, 152-153 (1993), quoting 600 W. 115th St. Corp. v. Von Gutfeld, 80 N.Y.2d 130, 139 (2014). Thus, “[a]n expression of pure opinion is not actionable …, no matter how vituperative or unreasonable it may be.” Steinhilber v. Alphonse, 68 N.Y.2d 283, 289 (1986).

“A pure opinion may take one of two forms. It may be a statement of opinion which is accompanied by a recitation of the facts upon which it is based, or it may be [a]n opinion not accompanied by such a factual recitation so long as it does not imply that it is based upon undisclosed facts.” Davis v. Boeheim, 24 NY3d 262, 269 (2014) (internal quotation marks omitted). Conversely, “an opinion that implies that it is based upon facts which justify the opinion but are unknown to those reading or hearing it, is a mixed opinion and is actionable.” Id. (alterations and internal quotation marks omitted). The latter is actionable “not because they convey false opinions ‘but rather because a reasonable listener or reader would infer that the speaker knows certain facts, unknown to [the] audience, which support


opinion and are detrimental to the person [toward] whom [the communication is directed].’” Gross, 82 N.Y.2d at 153-154, quoting Steinhilber, 68 N.Y.2d at 290.

In distinguishing between facts and opinion, the court considers the following factors: (1) whether the specific language has a precise meaning that is readily understood, (2) whether the statements are capable of being proven true or false, and (3) whether the context in which the statement appears signals to readers or listeners that the statement is likely to be opinion, not fact. Silverman v. Daily News, L.P., 129 A.D.3d 1054, 1055 (2d Dept. 2015); see also Thomas H. v. Paul B., 18 N.Y.3d 580, 584 (2012); Mann, 10 N.Y.3d at 276; Steinhilber, 68 N.Y.2d at 292. “The essential task [for the Court] is to decide whether the words complained of, considered in the context of the entire communication and of the circumstances in which they were spoken or written, may be reasonably understood as implying the assertion of undisclosed facts justifying the opinion.” Steinhilber, 68 N.Y.2d at 290.

“Whether a particular statement constitutes an opinion or an objective fact is a question of law.” Mann v. Abel, 10 N.Y.3d 271, 276 (2008). See also Kamchi v. Weissman, 125 A.D.3d 142, 157 (2d Dept. 2014); Abakporo v. Daily News, 102 A.D.3d 815, 816 (2d Dept. 2013).

Levy v. Nissani

Levy involved an action for breach of contract and fraud. The individual defendants counterclaimed, alleging causes of action sounding in defamation.

The individual defendants, Ronen Nissani and David S. Nissani (together, the “Nissanis”), had a close social relationship with the plaintiff, Haim Levy (“levy”), for many years. The Nissanis own defendant, Davron Corp. (“Davron”), a jewelry business. From February 2015 through September 2015, Levy allegedly loaned the Nissanis large sums of money for the purpose of acquiring, enhancing, and reselling rare and valuable gems for a profit. When the Nissanis failed to repay Levy the full amount of the loans, plus his share of the profits within the timeframe promised, Levy began demanding that defendants repay him.

On July 15, 2017, during a religious service, Levy allegedly called the Nissanis “scammers” or “con artists”, and warned those in attendance not to do business with them.

Following services, Levy allegedly repeated the charge that the Nissanis were “thieves.”  As Ronen Nissani began to walk home from the service, Levy allegedly threatened him in the presence of others that he was “going to be on your ass until I get my money! I’m not going to leave you alone! You will see! You are thieves!”

On July 20, 2017, Levy commenced the action to, inter alia, recover damages for breach of contract and fraud. In their answer, defendants asserted counterclaims for, inter alia, defamation per se. In the order appealed from, the motion court, inter alia, denied those branches of Levy’s motion which were for summary judgment dismissing the first and second counterclaims, concluding that the challenged statements constituted false assertions of fact rather than mere nonactionable expressions of opinion, and were defamatory per se because they tended to injure the Nissanis in their profession. Levy appealed.

The Second Department’s Ruling

The Court affirmed the motion court’s order.

The Court held that Levy “failed to establish, prima facie, that these statements [i.e., the Nissanis were “scammers” or “con artists” and “thieves”] did not constitute false assertions of fact.” Slip Op. at *2. (citation omitted). Viewing the statements “in the context in which the allegedly defamatory statements were made,” the Court found that “a reasonable listener would likely understand those statements to imply that the Nissanis swindled the plaintiff out of money in connection with their business.” Id. (citation omitted). The Court explained that the “statements [could] readily be proven true or false and, given the tone and overall context in which the statements were made, signaled to the average listener that the plaintiff was conveying facts about the Nissanis.” Id. (citations omitted).

Notably, the Court held that “[e]ven if the challenged statements had not conveyed assertations of fact, they would nonetheless be actionable as mixed opinion, since a reasonable listener would have inferred that the plaintiff had knowledge of facts, unknown to the audience, which supported the assertions he made.” Id. (citation omitted).

Finally, the Court held that Levy “failed to establish, prima facie, that the challenged statements were not defamatory per se, since they charged the Nissanis with the commission of a serious crime and would tend to injure the Nissanis in their business by imputing ‘fraud, dishonesty, misconduct, or unfitness in conducting [their] profession.’” Id. (quoting Greenberg, 155 A.D.3d at 47 (internal quotation marks omitted).

Accordingly, the Second Department affirmed the motion court’s “determination denying those branches of the plaintiff’s motion which were for summary judgment dismissing the first and second counterclaims….” Id. (citation omitted).


Although the alleged defamation in Levy occurred in a group setting, Levy teaches that the risks of defamation can extend beyond in-person meetings and gatherings. For example, in today’s digital world, people post reviews about a company’s products or services. It is fair to say that some posters do not think about the legal ramifications of their review. Indeed, there are many times when the review goes beyond a bad experience or a non-working product. Levy highlights the exposure one has when “name calling” becomes part of the review.

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