Fact Versus Opinion in Summary Judgment Context

Halstead v. Brokaw (Motion for leave to appeal granted on Dec. 10, 2010) 74 A.D.3d 1283 (2d Dept. 2010)

The appeal concerns one of three related actions to recover damages for defamation. The novel issue appears to concern a court’s determination of whether a statement is one of opinion or of fact. The Court of Appeals will likely re-examine its holding in Gross v. New York Times Co., 82 N.Y.2d 146 (1993), which set forth the following relevant factors for a court to determine whether a statement is an opinion or of fact: “(1) whether the specific language in issue has a precise meaning which is readily understood; (2) whether the statements are capable of being proven true or false; and (3) whether either the full context of the communication in which the statement appears or the broader social context and surrounding circumstances are such as to ‘signal ... readers or listeners that what is being read or heard is likely to be opinion, not fact.’” (Id. [quoting Steinhilber v. Alphonse, 68 N.Y.2d 283, 292 [1986]).

A unanimous panel at the Second Department granted the defendants’ motion for summary judgment dismissing the second action. The court held that the plaintiff in action No. 2 failed to raise a triable issue of fact.