Defamation Per Se and The Qualified Privilege

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Posted on: Dec 17 2025

In today’s article, we examine defamation per se under New York law, which allows recovery for defamation without proving special damages when the alleged statement falls into four categories: accusing someone of a serious crime, harming their trade or profession, imputing a loathsome disease, or alleging unchastity. In Couteller v. Mamakos, 2025 N.Y. Slip Op. 06965 (1st Dept. Dec. 16, 2025), a building superintendent sued a resident for falsely accusing him of sexual assault and harassment, disseminating the false claims to the police, the board of managers, and residents. The Appellate Division, First Department, found the statements defamatory per se, as they charged a serious crime and injured plaintiff’s profession. Since plaintiff proved malice, plaintiff could not find the protection of the qualified privilege that her statements otherwise would have enjoyed.

A Brief Primer on The Law of Defamation

The elements of a defamation claim 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.”[1] The two forms of defamation are libel and slander.[2] Since only facts can be proven false, statements purporting to assert facts about the plaintiff are the proper subject of a defamation claim.[3]

When pleading a claim of defamation, “[t]he complaint … must allege the time, place and manner of the false statement and specify to whom it was made.”[4] The complaint must also set forth “the particular words complained of.” The language at issue cannot amount to “expressions of opinion” or ‘“loose, figurative or hyperbolic statements.’”[5]

In deciding whether a statement is defamatory, a court “must consider the content of the communication as a whole, as well as its tone and apparent purpose and in particular 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.”[6]

Under New York law, a claim alleging defamation is not sustainable if special damages are not pleaded.[7] Special damages must be “fully and accurately identified ‘with sufficient particularity to identify actual losses.’”[8]

To set forth a cause of action in defamation per se, plaintiff need not plead special damages, but the statement must be “more than a general reflection upon [plaintiff’s] character or qualities.”[9] Rather, the statement must fall within one of four distinct exceptions: the statement (a) charged the plaintiff with a serious crime; (b) tends to injure the plaintiff in his or her trade, business, or profession; (c) claims the plaintiff has a loathsome disease; or (d) imputes unchastity to a woman.[10]

The statement claimed to be defamatory cannot be privileged. There are two types of privilege relevant to a defamation claim: absolute and qualified.

“Absolute privilege … entirely immunizes an individual from liability in a defamation action [] regardless of the declarant’s motives.”[11] It is “generally reserved for communications made by ‘individuals participating in a public function, such as judicial, legislative, or executive proceedings.’”[12] “The absolute protection afforded such individuals is designed to ensure that their own personal interests—especially fear of a civil action, whether successful or otherwise—do not have an adverse impact upon the discharge of their public function.”[13]

“On the other hand, a statement is subject to a qualified privilege when it ‘is fairly made by a person in the discharge of some public or private duty, legal or moral, or in the conduct of his own affairs, in a matter where his [or her] interest is concerned.’”[14] Circumstances in which a qualified privilege may apply include statements made in self-defense or to protect the safety of others, statements by an employer to a former employee’s prospective employer, communications made by an individual to a law enforcement officer,[15] communications made to persons who share a common interest in the subject matter,[16] and reports of official proceedings. “When subject to this form of conditional privilege, statements are protected if they were not made with ‘spite or ill will’ or ‘reckless disregard of whether [they were] false or not’ … , i.e., malice.”[17] The plaintiff bears the burden of proving the speaker acted with malice.[18]

“Whether allegedly defamatory statements are subject to an absolute or a qualified privilege depend[s] on the occasion and the position or status of the speaker …, a complex assessment that must take into account the specific character of the proceeding in which the communication is made.”[19]

“In judicial proceedings[,] the protected participants include the Judge, the jurors, the attorneys, the parties and the witnesses,” who are granted the protection of absolute privilege “for the benefit of the public, to promote the administration of justice, and only incidentally for the protection of the participants.”[20] “The immunity does not attach solely because the speaker is a Judge, attorney, party or a witness, but because the statements are … spoken in office.”[21] Thus, for example, “statements made by counsel and parties in the course of ‘judicial proceedings’ are [absolutely] privileged as long as such statements ‘are material and pertinent to the questions involved … irrespective of the motive’ with which they are made.”[22] The Court of Appeals has nonetheless “reiterated that [a]s a matter of policy, the courts confine absolute privilege to a very few situations.”[23]

With the foregoing primer in mind, we examine Couteller v. Mamakos.[24]

Couteller v. Mamakos

Plaintiff, a resident superintendent at a building located in New York City (the “Building”), brought an action against defendant, the owner of an apartment in the Building, alleging that defendant defamed him by falsely stating, repeatedly, that he had sexually assaulted her. Specifically, plaintiff claimed that on August 23, 2017, after he reported defendant’s violation of a cease-and-desist order to the New York City Police Department, defendant informed the officers that she wished to file a complaint against plaintiff for sexual harassment and sexual assault. No complaint was filed.

On October 24, 2017, during a meeting of the Building’s board of managers, defendant stated that plaintiff had threatened to shut off her water unless she performed “sexual favors.” Thereafter, defendant distributed a flyer to every apartment in the Building, stating that plaintiff sexually attacked and assaulted her.

In his complaint, plaintiff sought (1) a declaratory judgment determining that defendant’s conduct was defamatory, (2) an injunction permanently restraining defendant from engaging in such conduct, and (3) an award of compensatory damages accounting for harm to his professional and personal reputation, and emotional distress, as well punitive damages, costs, and reasonable attorney’s fees.

Following a failure to appear at a scheduled conference in December 2021, among other defaults, the motion court issued an order striking defendant’s answer and setting the matter down for an inquest. After additional related motion practice, the motion court conducted an inquest on April 25, 2024.

At the inquest, the motion court found that plaintiff credibly testified as to the events set forth in the complaint and that defendant’s statements caused him great anxiety about the security of his job and his relationship with the Building’s tenants.

Defendant also appeared at the inquest and argued that plaintiff should not receive any damages because plaintiff had, in fact, sexually accosted her in her apartment.

The motion court held that plaintiff established that defendant falsely stated that plaintiff sexually assaulted her and widely disseminated that misstatement, both orally and in writing, to hundreds of individuals, with at least a negligent regard for the truth. Though no special harm was established, said the motion court, defendant’s false claim that plaintiff sexually assaulted her—a serious crime—constituted defamation per se.

At the conclusion of the inquest, the motion court awarded plaintiff $230,000, plus statutory interest and $6,080 in attorneys’ fees.

On appeal, the Appellate Division, First Department, unanimously affirmed.

The Court held that the motion “court properly concluded that plaintiff established a prima facie case of defamation per se at the inquest.”[25] The Court found that “Defendant’s statements fell within two of the categories of defamation per se” – charging plaintiff with a serious crime, and injuring him in his trade, business, or profession.[26] The Court elaborated, stating that “Defendant’s accusations that plaintiff sexually assaulted her charged him with a serious crime,[27] and her statements that plaintiff sexually harassed her and attempted to coerce sexual favors from her in exchange for his assistance with construction work tend[ed] to injure him in his trade, business, or profession.”[28] Thus, said the Court, plaintiff was not required to prove special damages.[29] In that regard, noted the Court, “Plaintiff, as the resident manager and live-in superintendent of the building where defendant owned a condominium unit, explained that accusations of sexual assault and sexual harassment could ‘destroy’ his reputation, and he would ‘never be able to get another job in the field.’”[30]

Regarding the application of the qualified privilege, the Court reaffirmed that the privilege attached to statements made to the police reporting a crime,[31] and to the members of the board of managers of the Building.[32] Notwithstanding, the Court held that “plaintiff sufficiently demonstrated that defendant published the statements accusing him of sexual assault and sexual harassment with common-law malice. Plaintiff established defendant’s ‘one and only cause for the publication’ of the defamatory statements was ‘spite or ill will.’”[33] The Court explained that plaintiff “established that defendant’s statements were part of a pattern of retaliation intended to harm his reputation and cause his termination” and “proved [that] defendant widely disseminated the defamatory statements to the police, plaintiff’s employers, professional colleagues, and every resident of the building, after he called the police to enforce the court order barring her from altering her apartment without permission.”[34]

Takeaway

Couteller underscores the principle that under New York law, defamation requires a false, unprivileged statement published to a third party, causing harm or qualifying as defamation per se. Defamation per se applies when statements accuse someone of a serious crime, harm their profession, allege a loathsome disease, or impute unchastity to a woman. Unlike ordinary defamation, special damages need not be proven. Privileges—absolute (e.g., judicial proceedings) and qualified (e.g., crime reports)—can shield a defendant from liability unless malice is shown.

In Couteller, defendant was found to have falsely accused plaintiff of sexual assault and harassment, spreading the claims to the police, the board of managers, and residents. The Court found these statements to constitute defamation per se, as they charged a serious crime and damaged his profession. Malice defeated any privilege. As a result, plaintiff was awarded $230,000, plus interest and fees, and the First Department affirmed.

______________________________

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] Circulation Assocs., Inc. v. State, 26 A.D.2d 33, 38 (1st Dept. 1966); Salvatore v. Kumar, 45 A.D.3d 560, 563 (2d Dept. 2007).

[2] Ava v. NYP Holdings, Inc., 64 A.D.3d 407, 411 (1st Dept. 2009).

[3] Davis v. Boeheim, 24 N.Y.3d 262, 268 (2014).

[4] Dillon v. City of New York, 261 A.D.2d 34, 38 (1st Dept. 1999).

[5] Wolberg v. IAI N. Am., Inc., 161 A.D.3d 468, 470 (1st Dept. 2018) (quoting Dillon, 261 A.D.2d at 38).

[6] Mann v. Abel, 10 N.Y.3d 271, 276 (2008) (internal quotation marks omitted).

[7] See Liberman v. Gelstein, 80 N.Y.2d 429 (1992); L.W.C. Agency, Inc. v. St. Paul Fire & Marine Ins. Co., 125 A.D.2d 371 (2d Dept. 1986). Special damages are the quantifiable financial losses that a plaintiff has suffered due to the defendant’s actions.

[8] Carter v. Waks, 57 Misc. 3d 1208(A) (Sup. Ct., Queens County 2017) (citing Cammarata v. Cammarata, 61 A.D.3d 912, 915 (2d Dept. 2009)); see also Epifani v. Johnson, 65 A.D.3d 224 (2d Dept. 2009).

[9] Clemente v. Impastato, 274 A.D.2d 771 (3d Dept. 2000) (citation omitted).

[10] Liberman, 80 N.Y.2d at 435.

[11] Stega v. New York Downtown Hosp., 31 N.Y.3d 661, 669 (2018).

[12] Id. (quoting, Toker v. Pollak, 44 N.Y.2d 211, 219 (1978)).

[13] Stega, 31 N.Y.3d at 669; Rosenberg v. MetLife, Inc., 8 N.Y.3d 359, 365 (2007); Toker, 44 N.Y.2d at 219.

[14] Id. at 669-670 (quoting, Toker, 44 N.Y.2d at 219).

[15] Toker, 44 N.Y.2d at 219-220.

[16] Liberman, 80 N.Y.2d at 437.

[17] Stega, at 670 (quoting, Liberman, 80 N.Y.2d at 437-438).

[18] Id.

[19] Id.

[20] Park Knoll Assoc. v. Schmidt, 59 N.Y.2d 205, 209 (1983).

[21] Id. at 210.

[22] Wiener v. Weintraub, 22 N.Y.2d 330, 331 (1968) (quoting, Marsh v. Ellsworth, 50 N.Y. 309, 311 (1872)); see also Stega, 31 N.Y.3d at 669.

[23] Stega, 31 N.Y.3d at 670.

[24] On numerous occasions, this Blog has examined cases involving defamation, defamation per se, and the absolute or qualified privileges. Among the articles we have written are the following: Court Denies Motion to Dismiss Defamation Claim, Explaining the Difference Between an Expression of Fact and Opinion; Relying on Respondeat Superior Theory, Fourth Department Holds Complaint States A Cause of Action for Defamation Against Employer Based on Employee’s Facebook Posts; There is No Absolute Privilege to Defame Another in Court Papers; Pleading With Particularity: Defamation Causes of Action; and Defamation Per Se and Defamation by Implication: Meeting the Heightened Pleading Standard.

[25] Slip Op. at *1 (citing Taylor v. Brooke Towers LLC, 73 A.D.3d 535, 535 (1st Dept. 2010); see also Dillon, 261 A.D.2d at 38)).

[26] Id.

[27] Id. (citing Thomas H. v. Paul B., 18 N.Y.3d 580, 584-585 (2012)).

[28] Id. (citing Herlihy v. Metropolitan Museum of Art, 214 A.D.2d 250, 261 (1st Dept. 1995)).

[29] Id. (citing Liberman, 80 N.Y.2d at 435).

[30] Id.

[31] Id. (citing Sagaille v. Carrega, 194 A.D.3d 92, 96 (1st Dept. 2021), lv. denied, 37 N.Y.3d 909 (2021)).

[32] Id. (citing Harpaz v. Dunn, 203 A.D.3d 601, 602 (1st Dept. 2022)).

[33] Id. (quoting Liberman, 80 N.Y.2d at 439 (internal quotation marks omitted), and citing Pezhman v. City of New York, 29 A.D.3d 164, 168-169 (1st Dept. 2006)).

[34] Id.

Tagged with: Absolute Privilege, Defamation, Defamation Per Se, Qualified Privilege, Special Damages