The Second Department recently handed down an interesting decision regarding a defamation claim. In Kotowski v Hadley. 2007 NY Slip Op 01834, the plaintiff, a general manager of a cooperative apartment complex, alleged that the defendant, a tenant of the apartment complex, defamed him in a series of emails over the course of a year. The mails were distributed to approximately 100 people who were tenants and shareholders of the apartment complex via an email distribution list maintained by the defendant.
Among the alleged defamatory statements were allegations that the plaintiff illegally wiretapped telephones at the apartments, violated fire safety laws, and falsified crime statistics during his former employment with the NYC police department.
The Second Department first concluded that the alleged statements "were reasonably susceptible of a defamatory meaning and did not constitute personal opinion since they reasonably appeared to contain assertions of objective fact which do not fall within the scope of protected opinion."
The Court then determined that although the people on the email distribution list shared a common interest, thus affording the defendant's communications a qualified privilege, the privilege was overcome by the plaintiff's showing of actual malice sufficient to withstand a motion to dismiss:
Contrary to the defendant's contention, the complaint sufficiently pleaded malice. Specifically, the plaintiff alleged, inter alia, that certain specified communications (the content of which was contained in the complaint) were made with malice, that the defendant continued to publish them notwithstanding their falsity, and that he did so solely to discredit the plaintiff and injure the plaintiff's good name and reputation so as to cause the termination of his employment at NST. Moreover, the plaintiff had no obligation to show evidentiary facts to support these allegations of malice on a motion to dismiss pursuant to CPLR 3211(a)(7)...
I come across decisions addressing this particular tort fairly infrequently, so this opinion was of particular interest to me. While the holding wasn't exactly ground breaking, it's always useful to review the law regarding claims that are not litigated as frequently as your typical slip and fall or car accident.