Opinion
12638 Index No. 150400/15 Case No. 2019-05211
12-15-2020
Louis BACON, Plaintiff–Appellant–Respondent, v. Peter NYGARD, Defendant-Respondent-Appellant, Nygard International Partnership et al., Defendants.
Sidley Austin LLP, New York (Eamon P. Joyce of counsel), for appellant-respondent. Davis Wright Tremaine LLP, New York (Elizabeth A. McNamara of counsel), for respondent-appellant.
Sidley Austin LLP, New York (Eamon P. Joyce of counsel), for appellant-respondent.
Davis Wright Tremaine LLP, New York (Elizabeth A. McNamara of counsel), for respondent-appellant.
Renwick, J.P., Gische, Gonza´lez,Scarpulla, Mendez, JJ.
Order, Supreme Court, New York County (Robert David Kalish, J.), entered July 19, 2019, which, upon remand ( 160 A.D.3d 565, 76 N.Y.S.3d 27 [1st Dept. 2018] ), granted defendants' motion to dismiss pursuant to CPLR 3211 to the extent of dismissing plaintiff's cause of action for defamation as predicated on statements identified as 136, 148, 155–157, 160, 165–167 and 169 for failure to state a cause of action, unanimously affirmed, with costs.
This action arises from a highly publicized feud between the parties, who own neighboring properties in the Bahamas, and resulted in plaintiff commencing this defamation action against defendants premised on more than 100 published communications, which state, among other things, that "Bacon is KKK" or "Louis KKK Bacon," placing his picture next to violent and graphic imagery of Ku Klux Klan lynchings and the colors of the confederate flag. At issue on this appeal are 10 statements the motion court dismissed as nonactionable opinion, identified in Appendices to the Third Amended Complaint as 136, 148, 155–57, 160, 165–67 and 169 (disputed statements).
"Making a false statement that tends to expose a person to public contempt, hatred, ridicule, aversion or disgrace constitutes defamation," and, thus, "only statements of fact can be defamatory because statements of pure opinion cannot be proven untrue" ( Thomas H. v. Paul B., 18 N.Y.3d 580, 584, 942 N.Y.S.2d 437, 965 N.E.2d 939 [2012] ). While expressions of opinion "are deemed privileged and, no matter how offensive, cannot be the subject of an action for defamation" ( Mann v. Abel, 10 N.Y.3d 271, 276, 856 N.Y.S.2d 31, 885 N.E.2d 884 [2008], cert denied 555 U.S. 1170, 129 S.Ct. 1315, 173 L.Ed.2d 584 [2009] ), 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" ( Davis v. Boeheim, 24 N.Y.3d 262, 269, 998 N.Y.S.2d 131, 22 N.E.3d 999 [2014] [citation omitted] ).
"Distinguishing between fact and opinion is a question of law for the courts, to be decided based on what the average person hearing or reading the communication would take it to mean" ( Davis, 24 N.Y.3d at 269, 998 N.Y.S.2d 131, 22 N.E.3d 999 ). "The dispositive inquiry ... is whether a reasonable [reader] could have concluded that [the statements were] conveying facts about the plaintiff" ( Gross v. New York Times Co., 82 N.Y.2d 146, 152, 603 N.Y.S.2d 813, 623 N.E.2d 1163 [1993] [citation omitted] ). In conducting such inquiry, "courts must consider the content of the communication as a whole, as well as its tone and apparent purpose" ( Mann, 10 N.Y.3d at 276, 856 N.Y.S.2d 31, 885 N.E.2d 884 [internal quotation marks and citations omitted] ).
Here, the motion court properly determined that the disputed statements were not "reasonably susceptible of a defamatory connotation" to sufficiently state a cause of action ( Davis, 24 N.Y.3d at 268, 998 N.Y.S.2d 131, 22 N.E.3d 999 [citations omitted] ). Unlike the other allegedly defamatory statements that survived the motion to dismiss, the disputed statements at most assert pure opinions that plaintiff is racist by making nonspecific vague references to the KKK and juxtaposing his picture with violent iconographic images associated with the KKK. The context of these statements was such that a reasonable reader would have concluded that these statements were rhetorical epithets, not asserted facts. Contrary to plaintiff's contention, the disputed statements did not constitute "mixed opinions" because they did not indicate that the opinions were based on any undisclosed facts (see Davis, 24 N.Y.3d at 269, 998 N.Y.S.2d 131, 22 N.E.3d 999 ). As for the cited article excerpts, which plaintiff maintains are defamatory together with the title of and images in the internet article, the motion court properly dismissed them as the author disclosed the basis for his opinion that plaintiff is racist, and plaintiff did not dispute the underlying facts or quotes attributed to him in the article (see Gross, 82 N.Y.2d at 153–154, 603 N.Y.S.2d 813, 623 N.E.2d 1163 ).