Galasso v. Saltzman , 839 N.Y.S.2d 731 ( 2007 )

Order, Supreme Court, New York County (Walter B. Tolub, J.), entered October 4, 2006, which, to the extent appealed from, denied so much of defendant’s motion as sought dismissal of the second, third and fourth causes of action, reversed, on the law, with costs, the motion granted and the complaint dismissed in its entirety. The Clerk is directed to enter judgment accordingly.

The alleged defamatory statements constituted permissible opinion. They were made in the context of a heated dispute among residential property owners in Sands Point, a beach community in Nassau County. After plaintiff allegedly committed criminal trespass in May and early July 2005 by removing trees and a fence on defendant Arnold Saltzman’s property, and threatened further, similar action, Saltzman obtained a cease- and-desist order. Subsequently Saltzman allegedly stated that he was intent on “getting” plaintiff who was “no good” and “a criminal” (second cause of action); that plaintiff was “engaged in criminal conduct” and had “committed crimes” against the property claimed by defendants in an effort to “destroy both our properties and our beach” (third cause of action); and that Saltzman had plaintiff “checked out, and I don’t care if he’s connected, I’m going to get him” (fourth cause of action). The statements were allegedly made to a former neighbor, a current neighbor and a local businessman. (The motion court previously dismissed two other causes of action.) Plaintiff conceded that he held meetings with the subdivision neighbors to explain and discuss his protest actions, for some of which he supposedly obtained permits or had authorization pursuant to the subdivision plan map.

Given the subjective context and the stated facts underlying Saltzman’s statements, they constitute opinion and are not actionable as a matter of law (Millus v Newsday, Inc., 89 NY2d 840 [1996], cert denied 520 US 1144 [1997]; Steinhilber v Alphonse, 68 NY2d 283, 289 [1986]; Rinaldi v Holt, Rinehart & Winston, 42 NY2d 369, 380-381 [1977], cert denied 434 US 969 [1977]). The record shows that his listeners were familiar with the issues in dispute and with the respective sides’ positions. His references to criminality refer to the arguable criminal trespasses on his property and on common areas of the subdivision. The record does not offer a reasonable basis for interpreting the statements as implying that Saltzman knew of additional, undisclosed facts regarding plaintiff’s purported criminality.

Even if the statements were not protected opinion, plaintiffs general allegations of injury to reputation and subjection to scorn and hatred were insufficient to support his slander claims. A viable slander claim requires allegations of special damages, i.e., economic or pecuniary loss (Liberman v Gelstein, 80 NY2d 429, 434-435 [1992]). Nor would Saltzman’s use of the term “connected,” generally referring to an affiliation with organized crime, constitute slander per se (see Tracy v Newsday, Inc., 5 NY2d 134 [1959]; Privitera v Town of Phelps, 79 AD2d 1 [1981], appeal dismissed 53 NY2d 796 [1981]), which would be exempt from the requirement that special damages be pleaded. Finally, Saltzman’s statements do not evince actual malice, i.e., a defamatory statement made with a reckless disregard for the truth or with knowledge that it was false (see Prozeralik v Capital Cities Communications, 82 NY2d 466, 474 [1993]). The statements were made in the context of plaintiff’s purported demolition/reconstruction activities for which legitimate issues of fact exist, i.e., whether they were duly authorized by the Village in each instance and whether they encroached upon Saltzman’s property rights. Arguably, plaintiff could be subject to prosecution for felonious criminal mischief (see e.g. Penal Law §§ 145.05, 145.10). Concur—Williams, Gonzalez, Sweeny and Kavanagh, JJ.