Defamation Per Se and Defamation by Implication: Meeting the Heightened Pleading Standard

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Posted on: Nov 24 2025

In today’s article, we explore New York’s heightened pleading standard for defamation per se and defamation by implication. In Armbruster Capital Mgt., Inc. v. Barrett, 2025 N.Y. Slip Op. 06493 (4th Dept. Nov. 21, 2025), defendants sought to amend a counterclaim alleging that emails from plaintiff’s executives implied defendant lacked professional integrity. Initially denied by the motion court, the amendment was later deemed sufficient because defendants provided specific emails satisfying CPLR 3016(a), which requires particular words, time, place, and manner of the alleged defamatory statements. The Appellate Division, Fourth Department, found the emails suggested ethical noncompliance, qualifying as defamation per se, thereby eliminating the need to plead special damages. The Court explained that even if substantially true, the statements conveyed a false impression that defendant resigned solely due to burdensome compliance policies, meeting the rigorous standard for defamation by implication. The Court also held the proposed amendment was not meritless and permitted defendants to add individual parties, concluding the motion court abused its discretion in denying the motion to amend.

The dispute in Armbruster centered on an asset purchase agreement (APA) between plaintiff and Apex Wealth Advisers, LLC, formerly known as Apex Advisers, LLC (Apex), which was owned by defendant Elizabeth Barrett. Plaintiff and defendants entered into the APA whereby defendant sold Apex’s client list to plaintiff for a set price, payable in installments. In connection with the APA, defendant agreed to work part-time for plaintiff for the purpose of providing plaintiff with assistance in retaining Apex’s former clients. However, defendant resigned from plaintiff’s employment after less than a year.

Plaintiff commenced the action for breach of a restrictive covenant in the APA, and defendants counterclaimed for, inter alia, defamation, alleging that plaintiff made statements asserting that defendant lacked professional competence or integrity. Plaintiff moved to dismiss the defamation counterclaim pursuant to CPLR 3016(a) and 3211(a)(7). Defendants cross-moved for leave to amend the defamation counterclaim and to add as parties plaintiff’s chief executive officer and president (individual parties), who authored the alleged defamatory statements. The motion court granted the motion and denied the cross-motion. Defendants appealed only from the denial of their cross-motion.

A party asserting a claim for defamation must show “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.”[1] Statements “that tend to injure another in his or her trade, business or profession” constitute defamation per se. [2]

In addition, a plaintiff claiming defamation, must plead the claim with particularity, that is, the plaintiff must “set forth in the complaint the particular words complained of, as required by CPLR 3016 (a), and must state the time, place and manner of the allegedly false statements and to whom such statements were made.”[3]

As an initial matter, the Court rejected plaintiff’s assertion, raised as an alternative basis for affirmance, “that the proposed amended counterclaim failed to comply with CPLR 3016 (a).”[4] The Court noted that “[i]n support of their cross-motion, defendants submitted the emails that were sent by the individual parties, which contained the alleged defamatory statements.”[5] “[I]n doing so,” concluded the Court, defendants “met the pleading requirements of CPLR 3016 (a) … as the [motion] court implicitly found.[6]

Addressing the cross-motion, the Court “conclude[d] that the [motion] court abused its discretion in denying defendants’ cross-motion”.[7] The Court found that “Defendants sufficiently alleged that the statements made by the individual parties were false and that they were reasonably susceptible of a defamatory connotation.”[8] “In determining the sufficiency of a defamation pleading,” noted the Court, “we must consider ‘whether the contested statements are reasonably susceptible of a defamatory connotation’”,[9] and, in doing so, “we must ‘give the disputed language a fair reading in the context of the publication as a whole.’”[10]

The Court concluded that “the disputed language provide[d] a basis ‘from which the ordinary reader could draw an inference’ … that plaintiff was accusing defendant of failing to adhere to ethical standards in the investment trading industry.”[11] The Court noted that “the emails were sent to clients of plaintiff who had previously been clients of defendants and advised them that defendant was no longer employed by plaintiff.”[12] “The emails stated that the investment trading industry was ‘highly regulated,’ that plaintiff had ‘compliance policies’ to protect its clients against ‘conflicts of interest,’ and that defendant found those policies ‘overly burdensome,’ thereby suggesting that defendant failed to adhere to such policies and standards.”[13]

The Court further held that the statements constituted defamation per se, such that defendants did not need to allege special damages.[14] “‘A statement imputing incompetence or dishonesty to the [party] is defamatory per se if there is some reference, direct or indirect, in the words or in the circumstances attending to their utterance, which connects the charge of incompetence or dishonesty to the particular profession or trade engaged in by [the party].’”[15] The statement “must be more than a general reflection upon [the party’s] character or qualities[;] . . . [it] must reflect on [the party’s] performance or be incompatible with the proper conduct of [their] business.”[16] The Court found that, as alleged in the proposed amended counterclaim, “the statements conveyed that defendant was unable to conduct her work in a legally compliant and ethical manner and that she lacked professional competence or integrity.”[17]

Regarding the merit of the proposed amendment, the Court held that it was not “patently lacking in merit”.[18] After recounting the substance of the emails exchanged between plaintiff’s chief executive officer and defendant, as well as deposition testimony, the Court found that “defendant’s statements established that [defendant] found the policies burdensome and time-consuming, but they [did] not establish that [defendant] left plaintiff’s employment because of those policies, as stated in the emails by the individual parties.”[19]

“Moreover,” said the Court, “even assuming, arguendo, that the statements were substantially true and that defendants are relying on a theory of defamation by implication, we conclude that the proposed amended counterclaim is not patently lacking in merit.”[20] “Defamation by implication is premised not on direct statements but on false suggestions, impressions and implications arising from otherwise truthful statements.”[21] “There is a heightened legal standard for a claim of defamation by implication.”[22] “Under that standard, ‘[t]o survive a motion to dismiss a claim for defamation by implication where the factual statements at issue are substantially true, the [party asserting the defamation claim] must make a rigorous showing that the language of the communication as a whole can be reasonably read both to impart a defamatory inference and to affirmatively suggest that the author intended or endorsed that inference.’”[23] “The second part of the test is an objective inquiry and asks whether the plain language of the communication itself suggests that an inference was intended or endorsed.”[24]

The Court held that defendant “met the heightened pleading standard.”[25] The Court found that the statements at issue did “not tell the whole story and conveyed a false impression that defendant was entirely at fault for the demise of the employment relationship because she found plaintiff’s compliance policies burdensome.”[26] In context, the Court said that defendant left plaintiff’s employ after an “outburst” by plaintiff’s chief executive officer who “blamed defendant for the departure of a large client, said that he did not trust her and that she would steal all of plaintiff’s clients, and threatened legal action against her.”[27] “Thus”, concluded the Court, “the statements by the individual parties, even if true, conveyed the false suggestion and impression that the only reason defendant left plaintiff’s employment was because she did not want to comply with policies that were in place to ‘protect[ ]’ the clients.”[28] The plain language of the statements, therefore, “suggested that the individual parties intended that false suggestion and impression so that the clients would remain with plaintiff.”[29]

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Jeffrey M. Haber is a partner and co-founder of Freiberger Haber LLP. This article is for informational purposes and is not intended to be and should not be taken as legal advice.

[1] Fika Midwifery PLLC v. Independent Health Assn., Inc., 208 A.D.3d 1052, 1054 (4th Dept. 2022) (internal quotation marks omitted); see Miserendino v. Cai, 218 A.D.3d 1261, 1262 (4th Dept. 2023); Accadia Site Contr., Inc. v. Skurka, 129 A.D.3d 1453, 1453 (4th Dept. 2015).

[2] Fika Midwifery, 208 A.D.3d at 1054 (internal quotation marks omitted).

[3] Id. (internal quotation marks omitted).

[4] Slip Op. at *2.

[5] Id.

[6] Id., citing Accadia, 129 A.D.3d at 1454; McRedmond v. Sutton Place Rest. & Bar, Inc., 48 A.D.3d 258, 259 (1st Dept. 2008); Polish Am. Immigration Relief Comm. v. Relax, 172 A.D.2d 374, 374 (1st Dept. 1991).

[7] Id., citing Holst v. Liberatore, 105 A.D.3d 1374, 1374 (4th Dept. 2013); LHR, Inc. v. T-Mobile USA, Inc., 88 A.D.3d 1301, 1304 (4th Dept. 2011).

[8] Id.

[9] Id., quoting Davis v. Boeheim, 24 N.Y.3d 262, 268 (2014); see Bisimwa v. St. John Fisher Coll., 194 A.D.3d 1467, 1471 (4th Dept. 2021).

[10] Id., quoting Armstrong v. Simon & Schuster, 85 N.Y.2d 373, 380 (1995).

[11] Id., quoting James v. Gannett Co., 40 N.Y.2d 415, 420 (1976), r’arg denied, 40 N.Y.2d 990 (1976).

[12] Id.

[13] Id.

[14] Id.

[15] Miserendino, 218 A.D.3d at 1265.

[16] Id., quoting Golub v. Enquirer/Star Group, 89 N.Y.2d 1074, 1076 (1997).

[17] Slip Op. at *2.

[18] Id.

[19] Id. at *2-*3.

[20] Id. at *3.

[21] Armstrong, 85 N.Y.2d at 380-381; see also Bisimwa, 194 A.D.3d at 1472; Partridge v. State of New York, 173 A.D.3d 86, 90 (3d Dept. 2019).

[22] Slip Op. at *3, citing Bisimwa, 194 A.D.3d at 1472).

[23] Id., quoting Bisimwa, 194 A.D.3d at 1472; see also Partridge, 173 A.D.3d at 91-92.

[24] Id., quoting Partridge, 173 A.D.3d at 94 (internal quotation marks omitted).

[25] Id.

[26] Id.

[27] Id.

[28] Id.

[29] Id.

Tagged with: Breach of Contract, Business Litigation, Commercial Litigation, CPLR 3016(B), Defamation, Defamation By Implication, Defamation Per Se, Pleading with Particularity