Summary
In O'Loughlin, remarks that police officers such as plaintiff who refused to contribute to a memorial for officers killed in the line of duty were "a disgrace" and "have no feelings" were held to be indefinite and ambiguous opinions and which cannot be characterized as true or false.
Summary of this case from Covino v. HagemannOpinion
December 3, 1991
Appeal from the Supreme Court, Bronx County (Barry Salman, J.).
This dispute arises out of a letter written by defendant Phil Caruso, president of defendant Patrolmen's Benevolent Association (PBA), which was reproduced in the PBA's official publication, New York's Finest magazine. The letter concerns a $20 contribution which was deducted from PBA members' paychecks and which was donated by the organization to help build a memorial for police officers killed in the line of duty. Plaintiff suggested that the money would be better spent on bullet-proof vests and other equipment "to improve the safety of cops" and "to prevent the death of our police officers" and asked that his contribution be applied to such an endeavor or promptly returned to him. In his letter, Caruso ignored plaintiff's suggestions, asserting that plaintiff and eight other officers who requested refunds of this contribution "have no feelings" and "are a disgrace" to the police force. Plaintiff brought this action alleging that Caruso's remarks are false and defamatory. Defendants successfully moved for dismissal of the complaint on the ground that it fails to state a cause of action.
The standard to be applied on such a motion is stated in Silsdorf v Levine ( 59 N.Y.2d 8, 12, cert denied 464 U.S. 831): "If, upon any reasonable view of the stated facts, plaintiff would be entitled to recovery for defamation, the complaint must be deemed to sufficiently state a cause of action" (citing 219 Broadway Corp. v Alexander's, Inc., 46 N.Y.2d 506, 509). An allegedly defamatory statement is not actionable if it is an expression of pure opinion, no matter how vituperative or unreasonable it may be (Steinhilber v Alphonse, 68 N.Y.2d 283, 289). The distinction between fact and opinion is made "on the basis of what the average person hearing or reading the communication would take it to mean" (Parks v Steinbrenner, 131 A.D.2d 60, 63), and four factors are considered in making this assessment: (1) whether the specific language employed is precise or vague and ambiguous, (2) whether the statement may be objectively characterized as either true or false, (3) the context in which the statement appears and (4) the broader social setting surrounding the communication, including a custom or convention which might serve to indicate that it is an expression of opinion and not fact (Steinhilber v Alphonse, supra, at 292, citing Ollman v Evans, 750 F.2d 970, 983 [DC Cir], cert denied 471 U.S. 1127).
The statements complained of, while unfortunate, insensitive and vituperative, are clearly an expression of opinion. Caruso's assertions that plaintiff has "no feelings" for fallen police officers and that he is a "disgrace to the entire police service" are indefinite and ambiguous and cannot be characterized as true or false; "no feelings" and "disgrace" are vague designations which cannot be assigned a precise meaning. An examination of the context of the New York's Finest letter and a consideration of the readership of that magazine indicate that Caruso set out to inform the members of a fraternal police group of his negative opinion of 9 named officers for their lack of support for a project which the 20,000-member organization deems a worthy cause.
That plaintiff had expressed other uses for the money, designed to improve the welfare and safety of police officers, does not render Caruso's statement "false". Nor is Caruso's statement actionable "`mixed opinion'", viz., one which conveys "the impression that it sets forth the facts upon which it is based, but those underlying facts are either falsely misrepresented or grossly distorted" (Chalpin v Amordian Press, 128 A.D.2d 81, 85). Caruso's derogatory comments are confined to the officers' unwillingness to participate in the PBA contribution effort. We therefore conclude that the average person reading the PBA's magazine would consider defendant Caruso's comments to be an expression of his personal opinion which, however unfair or intemperate, is not actionable under a claim of defamation.
Concur — Rosenberger, J.P., Kupferman, Smith and Rubin, JJ.