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MITCHELL H. RUBINSTEIN (professorrubinstein@gmail. com) is an Adjunct Professor of Law at St.

Johns Law School and New York Law School; Senior Counsel, New York State United Teachers, affiliated with American Federation of Teachers, National Education Association, AFL-CIO; Editor, Adjunct Law Professor Blog, http://www.lawprofessors.typepad.com/adjunctprofs; B.S., Cornell University School of Industrial and Labor Relations; J.D. with distinction, Hofstra University School of Law. Professor Rubinstein welcomes comments. The views expressed in this article are entirely the authors and may not necessarily represent the views of any organization that he is affiliated with.

A Peek at New York Defamation Law


By Mitchell H. Rubinstein
Introduction
It has been recognized for centuries that defamation could cause an individual serious injury. At common law, defamation was both a crime and a tort;1 indeed, during medieval times, a defendant guilty of defamation had his tongue taken out.2 We have come a long way since that barbaric remedy. Today, the law of defamation is, of course, governed by state tort law.3 More than four decades ago, Justice Potter Stewart recognized that an individuals protection of his or her good name is an essential part of human dignity and lies at the heart of our legal system.4 It is important, therefore, that all lawyers, whether they practice tort law or not, have an understanding of the law of defamation. Indeed, the number of defamation law cases has exploded in the last decade.5 Defamation law does not only fall under the domain of tort lawyers. Defamation can come up in a variety of circumstances. For example, defamation issues frequently arise in employment law with respect to employment references,6 as well as in the context of statements made by employers to co-workers.7 broken down into two forms: (1) libel (or slander) per se, in which the defaming statement appears on the face of the communication; and (2) libel (or slander) per quod, in which a defamatory import arises through reference to facts extrinsic to the communication.10 The elements of a cause of action for libel are: 1. a false and defamatory statement of fact 2. regarding the plaintiff, 3. which is published to a third party and 4. results in injury to the plaintiff.11 If a party is a public official, constitutional principles first articulated in New York Times v. Sullivan12 must be considered.13 In such situations, malice must be proven, to wit, it must be established that the statement was made with knowledge that it was false or with reckless disregard of whether or not it was false.14 A plaintiff must prove malice by clear and convincing evidence.15 This heightened standard for public officials is necessary because of the importance of uninhibited and robust debate with respect to public issues.16

Defined Defamation is defined as the making of a false statement about a person that tends to expose the p[erson] to public contempt, ridicule, aversion or disgrace, or induce an evil opinion of him [or her] in the minds of right thinking persons, and to deprive him [or her] of their friendly intercourse in society.8 It is composed of two types: slander and libel. Slander refers to the spoken word, while libel refers to the written word.9 The tort is further

Role of Courts It is the role of courts to determine whether the communication at issue is reasonably susceptible to a defamatory connection.17 Stated differently, whether a communication constitutes defamation involves a question of law to be determined by a court.18 A court will examine the particular words as well as the entire communication. The alleged circumstances and the context of the alleged defamation are critical.19 The communication is judged based upon its effect on the average reader.20

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In one recent decision, a puerile attempt by adolescents to outdo each other by making outrageous statements on Facebook, which included allegations that the plaintiff contracted AIDS by having sex with a horse or a baboon, was held to be non-actionable because a reasonable reader would not conclude that the allegations in question were intended to be statements of fact.21 As noted, damages are also an element of a cause of action for defamation. Significantly, however, if the statements at issue are considered to be defamatory per se, there is no need for a plaintiff to allege damages, which are often referred to as special damages.22 Special damages involve the loss of something having economic or pecuniary value.23 Special damages must be accurately and clearly identified and be causally related to the tortious act.24 Round dollar figures or generalized allegations of a dollar amount of damages do not meet this standard.25 In the case of defamation per se, damages need not be alleged or proven because the law presumes damages.26 Under New York law, a statement is defamatory per se in four categories of cases: 1. Charging a plaintiff with a serious crime; 2. Stating false facts that tend to injure a plaintiff in his or her business trade or profession; 3. Charging that a plaintiff has a loathsome disease; or 4. Imputing a plaintiff is unchaste.27 With respect to the serious crime element, not every type of unlawful behavior is defamatory per se. Only serious crimes meet this standard.28 A specific crime does not have to be alleged. Thus, a statement that a cop was on the take has met this standard.29 Similarly, a statement in a book that indicated that a judge was corrupt and incompetent, with strong undertones of illegality, was found to cause the plaintiff to be a victim of disgrace and contempt.30 Therefore, the standard was met. The business trade or profession exception is limited to defamation that is of a kind incompatible with the proper conduct of business, trade or profession. It must be made concerning a matter of significance for that purpose, as opposed to a more general reflection upon the plaintiffs character.31 Thus, a charge of drunkenness or other moral misconduct may affect a clergyman in the performance of his duties; however, that same charge against a businessman may not affect his trade, business or profession.32 Significantly, due to First Amendment concerns, when a defendant is a media publisher or broadcaster, the analysis is a bit different. The analysis with respect to defamation per se is not applicable and the alleged defamation must involve a matter of public concern. Specifically, a private plaintiff must establish that the media defendant acted in a grossly irresponsible manner without due consideration for the standards of information gathering and dissemination ordinarily followed by responsible parties with respect to a matter of public concern.33

This standard is considered to be an objective one.34 It is applicable only to private figures and differs from the subjective actual malice standard applicable to public figures.35 The gross irresponsibility standard focuses on the journalists satisfaction of objective professional standards. By contrast, the malice test focuses on a defendants subjective state of mind.36 The gross irresponsibility standard does not require a media defendant to be fair or balanced and multiplesource checking is not required.37 As long as the publisher relied on at least one authoritative source, which it had no reason to doubt, the publisher would not be found to have acted in a grossly irresponsible manner, even if its ultimate reporting turned out to be incorrect.38 A typographical error would certainly not meet the standard of gross irresponsibility.39

With respect to the serious crime element, not every type of unlawful behavior is defamatory per se.
With respect to media defendants, the threshold issue of public concern appears to be fairly low. The New York Court of Appeals has held that an article that reported, albeit incorrectly, that a certain public school teacher was arrested fell within the scope of public concern because its content was related to matters warranting public exposition.40 Additionally, in another case, a county trial court held that a newspaper article about a public school teachers discharge, due to an incident with a student, was a matter of public concern.41 Reports about mere gossip are not matters of public concern and in making this determination the entire context must be examined.42 Publications directed only towards a limited private audience are matters of private concern.43 The mere publication of a matter in a newspaper does not make an issue one of public concern.44

Litigation Issues
Like in most civil litigation, in defamation actions jurisdictional issues can arise45 and it is the plaintiff who bears the burden of proof.46 The alleged defamatory statement, of course, must involve the plaintiff.47 If a public official is involved, the plaintiff also has the burden of establishing malice.48 Under New York law, a heightened pleading standard must be satisfied for a cause of action to be stated. Specifically, the CPLR provides:
In an action for libel or slander, the particular words complained of shall be set forth in the complaint, but their application to the plaintiff may be stated generally.49

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A complaint that merely paraphrases the defamatory words does not comply with the statute.50 Therefore, the failure to plead the specific defamatory words is fatal to a plaintiffs claim.51 The statute of limitations for a defamation action is one year.52 The one-year time period begins to accrue from the date of first publication.53 A less well-known, but critically important, litigation tool in defamation, as well as in other actions, is the ability to seek pre-action disclosure. This may be necessary to

our society, another staple of our society is the right of individuals to speak and write freely. That is why statements that merely express an opinion no matter how offensive, vituperative, or unreasonable are not actionable.65 It is, again, a question of law whether a statement is a fact or an expression of opinion.66 The issue of fact versus opinion has been, and continues to be, the generator of significant litigation.67 In deciding whether a disputed statement is fact or opinion, the court examines whether

While defamation law recognizes that an individuals right to protect his or her reputation is a basic part of our society, another staple of our society is the right of individuals to speak and write freely.
obtain the identities of the defendants or to find out the exact defamatory words as required.54 Specifically, the CPLR provides:
Before an action is commenced, disclosure to aid in bringing an action, to preserve information or to aid in arbitration, may be obtained, but only by court order.55

Pre-complaint disclosure is not a popular application with judges. It can only rarely be justified56 and is available only in extraordinary circumstances.57 A petitioners conjecture and suspicion are insufficient to allow a judicial franchise to penetrate into another partys affairs.58 Disclosure is also available only if the plaintiff has a meritorious cause of action and the information is material and necessary.59 For instance, in a recent case against Google, pre-action disclosure was denied the plaintiff could not establish a meritorious cause of action for defamation because the alleged defamatory statement was protected as an opinion.60

the reasonable reader would have believed that facts are being conveyed about the plaintiff.68 The New York Court of Appeals has held that the following factors must be considered: 1. Whether the language has a precise meaning or whether it is indefinite or ambiguous; 2. Whether the statement is capable of objectively being true or false; and 3. The full context of the entire communication or the broader social context surrounding the communication.69 Subjective expressions about personal dealings or consumer dissatisfaction are, therefore, considered nonactionable opinion.70 It is often difficult to parse fact from opinion. An opinion that implies undisclosed facts is actionable because a reasonable listener would infer that the speaker knows certain facts which support the opinion.71

Defenses
Truth Only facts can be proven false.61 Falsity is a necessary part of any defamation cause of action. Accordingly, truth is an absolute defense to defamation regardless of the harm inflicted.62 The defense of truth can be successfully asserted even if the publication is not literally or technically true in all respects. Thus, a publication that is substantially true is not defamatory. The law recognizes that a statement may be substantially truthful if it contains minor inaccuracies.63 The test of substantial truth is whether the libel as published would have a different effect on the mind of the reader from which the pleaded truth would have produced.64 Opinion While defamation law recognizes that an individuals right to protect his or her reputation is a basic part of

Privileges Privileges are an important part of the law of defamation and are frequently litigated.72 Quite simply, the law recognizes that certain conversations, though possibly defamatory, should be shielded from litigation to prevent a chilling effect on the issuance of such statements.73 An absolute privilege occurs when public policy requires that a speaker be immune from suit; statements fostering a lesser public interest are conditionally privileged.74 The Qualified Privilege The recognition of a qualified privilege grew out of the public interest in encouraging full and fair statements by individuals who have a legal or moral duty to communicate about persons in whom both the sender and receiver have an interest.75 The privilege does not extend beyond the statements the writer makes in the performance of his

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or her duty and which statements he or she believes in good faith to be true.76 A qualified privilege extends to a statement made by one person to another upon a subject in which they both have an interest.77 It has been applied, for example, to members of a faculty tenure committee, physicians of a health insurance plan, and members of the governing body of a tenants association.78 It has also been applied to statements by employers to employees relative to performance.79 Employees who have made statements to their employers critical of other employees have also been found to be protected by a qualified privilege.80 Similarly, statements by union officials to management are protected by a qualified privilege.81 A qualified privilege, though not absolute, has been recognized by the New York Court of Appeals to be considerable.82 To illustrate, a statement by an employer to other employees that a former employee was fired for stealing may constitute slander per se because it implicates a crime,83 while a qualified privilege exists for statements that may be made by that same employer in the context of an employment reference.84 Unlike absolute privileges, a qualified privilege can be dissolved if the plaintiff can demonstrate malice. Both common law malice, which involves spite or ill will, and actual malice, which is governed by the New York Times standard referenced above, will defeat a qualified privilege.85 Where the plaintiff is a private individual, however, as opposed to a public figure, the clear and convincing standard of proof will not be applied. Rather, the preponderance of the evidence standard, which is applied in most civil litigation, is applicable.86 Thus, mere falsity will not establish malice.87

A statute may provide immunity from a defamation action, as well as other causes of action, and, thus, it is identical to an absolute privilege.95

Mistakes Interestingly in New York, there is not much authority discussing whether a publication made by mistake can be considered defamatory. The authority in existence, however, suggests that a mistake is not a defense to defamation. The standard is not what the defendant intended, but what the readers may have understood.96 It appears that a mistake may be relevant to the amount of damages that might be awarded by a jury. Additionally, if a defendant makes a mistake in good faith, it might be relevant to determining whether or not malice has been established.97

Conclusion
This relatively short primer could not possibly cover all of the nuances of the law of defamation in New York. Hopefully, this article will provide practitioners and scholars with enough background information to start their research.98 With the surge of Internet use and increased reliance on email, the number of defamation cases can be expected to continue to rise. With the Internet, a persons reputation can be damaged in a matter of hours.99 The Internet has become the dominant form of media today, and the same time-tested standards should apply.100 Lawyers should always advise their clients to check the facts before they publish them. With that precaution, a client may avoid being involved in what can become protracted and complicated litigation.
1. Russell L. Weaver, John H. Bauman, John T. Cross, Andrew R. Klein, Edward C. Martin, Paul J. Zwier, II, Torts , Cases Problems, and Exercises, 703 (3d ed. 2009). 2. Rodney A. Smolla, Law of Defamation 1:3, 1-7 (2d ed. 2008). 3. Smolla supra note 2, 1:1, 1-5. 4. Rosenblatt v. Baer, 383 U.S. 75, 92 (1966) (Stewart, J., concurring). Justice Stewarts concurrence has been widely quoted with approval. See Gertz v. Robert Welch, Inc., 418 U.S. 323, 341 (1974); Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749 (1985); see also Milkovich v. Lorain Journal, 497 U.S. 1 (1990) (recognizing the important social values which underlie the law of defamation); Norton v. Glenn, 860 A.2d 48 (Pa. 2004), cert. denied sub nom. Troy Pub Co., Inc. v. Norton, 544 U.S. 956 (2005) (stating that an individuals interest in his reputation should be placed in the same category with life, liberty and property). 5. Smolla supra note 2, 1:5, 1-9 (discussing modern law of defamation). 6. See, e.g., Fisher v. Schur, 46 N.Y.2d 720, 413 N.Y.S.2d 372 (1978); Wideberg v. Tiffany & Co., Index No. 4534/92, 1992 WL 454053 (Sup. Ct., Westchester Co. Dec. 4, 1992). 7. See, e.g., Mancuso v. Allergy Assocs. of Rochester, 70 A.D.3d 1499, 895 N.Y.S.2d 756 (4th Dept 2010) (statement by owner to co-workers). 8. Ava v. NYP Holding Co., 64 A.D.3d 407, 885 N.Y.S.2d 247 (1st Dept 2009) (quoting Rinaldi v. Holt, Rinehart & Winston, 42 N.Y.2d 369, 379, cert. denied, 434 U.S. 969 (1977)). 9. Id.; Am. Med. & Life Ins. Co. v. Crosssummit Enters., Inc., 27 Misc. 3d 1210(A), 2010 WL 1493136 (Sup. Ct., Nassau Co. 2010). For an excellent historical summary of the law of common law of defamation as well as the distinction between libel and slander, see John W. Little, Lyrissa B. Lidsky, Robert H. Lande, Torts: The Civil Law of Reparation for Harm Done By Wrongful Act,

The Absolute Privilege The concept of an absolute privilege is an ancient doctrine. Under English common law, it was recognized as a means to protect speech and debate in Parliament. The notion of an absolute privilege was later embodied in state constitutions, including the New York State Constitution, to protect legislators.88 The right of non-judicial and non-legislative officials to assert an absolute privilege was first recognized in England in 1895 and is well recognized in New York today.89 Nevertheless, New York state courts have been reluctant to extend the privilege because it essentially provides immunity.90 A statement submitted in the form of an affidavit to a court is protected by an absolute privilege.91 Additionally, a statement made to a bar association is protected by an absolute privilege.92 Statements made in disciplinary charges brought against an employee are absolutely privileged.93 Similarly, a statement made to the New York State Division of Human Rights in connection with an investigation is protected.94

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85255 (3d. ed. 2009) (reproducing excerpts from Report on the Committee on Defamation, Command Paper 5909, London (1975)). 10. Ava, 64 A.D.3d 407. 11. Intellect Art Multimedia, Inc. v. Milewski, 24 Misc. 3d 1248(A), 899 N.Y.S.2d 60 (Sup. Ct., N.Y. Co. 2009); see Suson v. NYP Holdings, Inc., 19 Misc. 3d 1116(A), 862 N.Y.S.2d 818 (Civ. Ct., N.Y. Co. 2008), affd for reasons stated below, 22 Misc. 3d 135(A), 880 N.Y.S.2d 876 (App. Term 1st Dept 2009) (citing Restatement (Second) of Torts, 558); see also Am. Med. & Life Ins. Co., 27 Misc. 3d 1210(A) (discussing elements of cause of action for defamation). 12. 376 U.S. 254 (1964). 13. Cf. Rinaldi v. Holt, Rinehart & Winston, Inc., 42 N.Y.2d 369, 379, 397 N.Y.S.2d 943, cert. denied, 434 U.S. 969 (1977), with Jimenez v. UFT, 239 A.D.2d 265, 657 N.Y.S.2d 672 (1st Dept 1997), appeal dismissed, 90 N.Y.2d 890 (1997) (holding that public school principals are public figures); Visentin v. Haldane Cent. Sch. Dist., 4 Misc. 3d 918, 782 N.Y.S.2d 517 (Sup. Ct., Putnam Co. 2004) (holding that public school teachers are not public figures). 14. Rinaldi, 42 N.Y.2d at 379. 15. Mancuso v. Allergy Assocs. of Rochester, 70 A.D.3d 1499, 895 N.Y.S.2d 756 (4th Dept 2010).; Visentin, 4 Misc. 3d 918. 16. Rinaldi, 42 N.Y.2d 369 (citing N.Y. Times v. Sullivan, 376 U.S. 254, 270 (1964)). 17. Ava v. NYP Holding Co., 64 A.D.3d 407, 885 N.Y.S.2d 247 (1st Dept 2009). 18. Sprewell v. NYP Holdings, Inc., 1 Misc. 3d 847, 772 N.Y.S.2d 188 (Sup. Ct., N.Y. Co. 2003). 19. Ava, 64 A.D.3d 407; see also Sprewell,1 Misc. 3d 847 (discussing the importance of context). 20. Sprewell, 1 Misc. 3d 847. 21. Finkel v. Dauber, N.Y.L.J., July 23, 2010, p. 32, col. 1 (Sup. Ct., Nassau Co.). This case is also significant in that the court held that there is no cause of action for cyber bullying in New York. 22. Id. 23. Sprewell, 1 Misc. 3d 847 (quoting Liberman v. Gelstein, 80 N.Y.2d 429, 43435, 590 N.Y.S.2d 857 (1992)). 24. Id. 25. Lee S. Kreindler, Blanca I. Rodriguez, David Beekman, David Cook, 14 N.Y. Prac., New York Law of Torts Sec. 1:46, n. 12 (Aug. 2009). 26. Intellect Art Multimedia, Inc. v. Milewski, 24 Misc. 3d 1248(A), 899 N.Y.S.2d 60 (Sup. Ct., N.Y. Co. 2009). 27. Liberman, 80 N.Y.2d at 434; Epifani v. Johnson, 65 A.D.3d 224, 882 N.Y.S.2d 234 (2d Dept 2009); Intellect Art Multimedia, Inc., 24 Misc. 3d 1248(A); see also Ava, 64 A.D. 3d 407 (statement which implies plaintiff is promiscuous is defamatory); Cavallaro v. Pozzi, 28 A.D.3d 1075, 814 N.Y.S.2d 462 (4th Dept 2006) (noting that Liberman specifically changed the law of defamation to require the commission of a serious crime). 28. Liberman, 80 N.Y.2d 429. 29. Sprewell, 1 Misc. 3d 847; Liberman, 80 N.Y.2d 429. 30. Rinaldi v. Holt, Rinehart & Winston, Inc., 42 N.Y.2d 369, 397 N.Y.S.2d 943, cert. denied, 434 U.S. 969 (1977). 31. Liberman, 80 N.Y.2d 429. 32. Id. 33. Chapadeau v. Utica Observer-Dispatch, 38 N.Y.2d 196, 199, 379 N.Y.S.2d 61 (1975); Huggins v. Moore, 94 N.Y.2d 296, 707 N.Y.S.2d 904 (1999). 34. Khan v. N.Y. Times Co., Inc., 269 A.D.2d 74, 76, 710 N.Y.S.2d 41 (1st Dept 2000). 35. Id. 36. Id. 37. Visentin v. Haldane Cent. Sch. Dist., 4 Misc. 3d 918, 922, 782 N.Y.S.2d 517 (Sup. Ct., Putnam Co. 2004). 38. Chapadeau, 38 N.Y.2d at 200; Visentin, 4 Misc. 3d at 922 (collecting cases). 39. Chapadeau, 38 N.Y.2d 196. 40. Id. at 199200. 41. Visentin, 4 Misc. 3d 918. 42. Huggins, 94 N.Y.2d 296. 43. Id. 44. Id. 45. For a discussion of procedural issues under New Yorks long arm statute in the context of defamation, see generally Victor A. Kovner & Lance Koonce, Preliminary Considerations Long-Arm Jurisdiction, 4B N.Y. Prac., Com. Litig. in New York State Courts 84:3 (2d ed. Robert L. Haig ed.). 46. Rinaldi, 42 N.Y.2d at 379. 47. Lazore v. NYP Holding Co., 61 A.D.3d 440, 876 N.Y.S.2d 59 (1st Dept 2009); Haefner v. N.Y. Media, 27 Misc. 3d 1208(A), 2009 N.Y. Misc. Lexis 3641 (Sup. Ct., N.Y. Co. 2009).

48. Lazore, 61 A.D.3d 440; Haefner, 27 Misc. 3d 1208(A). 49. CPLR 3016(a). See Am. Med. Life Ins. Co. v. Crosssummit Enters., Inc., 27 Misc. 3d (A), 2010 WL 1493136 (Sup. Ct., Nassau Co. 2010). 50. See, e.g., Murganti v. Weber, 248 A.D.2d 208, 699 N.Y.S.2d 818(1st Dept 1998); Roth v. UFT, 5 Misc. 3d 888, 787 N.Y.S.2d 603 (Sup. Ct., Kings Co. 2004). Accord Salvatore v. Kumar, 45 A.D.3d 560, 845 N.Y.S.2d 384 (2d Dept 2007), appeal denied, 10 N.Y.3d 703 (2008) (defamation complaint which generally refers to certain executives and personnel who would be able to discern the facts does not withstand motion to dismiss); Cotler v. Retail Credit, 18 A.D.2d 898, 237 N.Y.S.2d 781 (1st Dept 1963) (pre-action disclosure denied in libel case as plaintiff was unable to show that he suffered any actionable wrong by meeting applicable pleading standard). 51. Sandiford v. City of N.Y. Dept of Educ., 26 Misc. 3d 1223(A),906 N.Y.S.2d 440 (Sup. Ct., N.Y. Co. 2010); Emergency Enclosures v. Natl Fire Adjustment Co., Inc., 68 A.D.3d 1658, 893 N.Y.S.2d 414 (4th Dept 2009); Wideberg v. Tiffany & Co., Index No. 4534/92, 1992 WL 454053 (Sup. Ct., Westchester Co. 1992). 52. CPLR 215(3). 53. Hoesten v. Best, 34 A.D.3d 143, 821 N.Y.S.2d 40 (1st Dept 2006). 54. See Sandals Resorts Intl, Ltd. v. Google, Inc., 27 Misc. 3d 1207(A), 2010 WL 1428266 (Sup. Ct., N.Y. Co. 2010) (pre-action disclosure sought to obtain identity, email messages, instant messages and account history for an individual only identified by an email address). 55. CPLR 3102(c). 56. McKinneys Practice Commentary, CPLR 3102 (2004). 57. Goldsborough v. N.Y. State Dept of Corr. Servs., 217 A.D.2d 546, 628 N.Y.S.2d 813 (2d Dept), appeal dismissed, 86 N.Y.2d 834, 634 N.Y.S.2d 437 (1995); Linquist v. Wm. Spencer & Son, 65 N.Y.S.2d 482, 484 (Sup. Ct., Kings Co. 1946) (stating pre-complaint disclosure is rarely and sparely granted). 58. Emmrich v. Tech. for Info., 91 A.D.2d 777, 457 N.Y.S.2d 1017 (3d Dept 1982). 59. Liberty Imports, Inc. v. Bourguet, 146 A.D.2d 535, 536 N.Y.S.2d 784 (1st Dept 1989); Bliss v. Jaftin, 176 A.D.2d 106, 573 N.Y.S.2d 687 (1st Dept 1991). 60. Sandals Resorts Intl, Ltd., 27 Misc. 3d 1207(A). 61. Gross v. N.Y. Times, 82 N.Y.2d 146, 603 N.Y.S.2d 818 (1993). 62. Matovcik v. Times Beacon Record Newspapers, 46 A.D.3d 636, 849 N.Y.S.2d 75 (2d Dept 2007). 63. Id.. 64. Id. (quoting Love v. Morrow & Co., 193 A.D.2d 586, 588, 597 N.Y.S.2d 423 (2d Dept 1993)). 65. Intellect Art Multimedia, Inc. v. Milewski, 24 Misc. 3d 1248(A), 899 N.Y.S.2d 60 (Sup. Ct., N.Y. Co. 2009) (citing Immono AG v. Moore-Jankowski, 77 N.Y.2d 235, 566 N.Y.S.2d 506, cert. denied, 500 U.S. 954 (1991)). 66. Rinaldi v. Holt, Rinehart & Winston, Inc., 42 N.Y.2d 369, 379, 397 N.Y.S.2d 943, cert. denied, 434 U.S. 969 (1977). 67. Gross, 82 N.Y.2d 146. 68. Intellect Art Multimedia, Inc., 24 Misc. 3d 1248(A) (citing Millus v. Newsday, 89 N.Y.2d 840, 652 N.Y.S.2d 726 (1996), cert. denied, 520 U.S. 1144 (1997)); Brian v. Richardson, 87 N.Y.2d 46, 637 N.Y.S.2d 347 (1995). 69. Gross, 82 N.Y.2d 146; see also Intellect Art Multimedia, Inc., 24 Misc. 3d 1248(A). 70. Intellect Art Multimedia, Inc., 24 Misc. 3d 1248(A). 71. Gross, 82 N.Y.2d 146. For additional discussion of opinion under New York defamation law, see Lee S. Kreindler, Blanca I. Rodriguez, David Beekman, David C. Cook, Defamation Privilege for Opinions, 4 N.Y. Prac., New York Law of Torts 1:48 (Aug. 2009). 72. The issue of privilege is part of the substantive law of defamation. It is distinguished from the use of privilege as a rule of evidence. See Mitchell H. Rubinstein, Is a Full Labor Relations Evidentiary Privilege Developing?, 29 Berkeley J. Lab. & Emp. L. 221, n. 9 (2008). 73. Liberman v. Gelstein, 80 N.Y.2d 429, 590 N.Y.S.2d 857 (1992). 74. Id.. 75. Stukuls v. State, 42 N.Y.2d 272, 397 N.Y.S.2d 746 (1977). 76. Id. 77. Liberman, 80 N.Y.2d 429. 78. Id. 79. Mancuso v. Allergy Assocs. of Rochester,70 A.D.3d 1499, 895 N.Y.S.2d 756 (4th Dept 2010); Rios v. Smithtown Gen. Hosp., 65 A.D.2d 808, 410 N.Y.S.2d 356 (2d Dept 1978). 80. Sassaman v. Brant, 70 A.D.3d 1026, 895 N.Y.S.2d 526 (2d Dept 2010). 81. Handlin v. Burkhart, 101 A.D.2d 850, 476 N.Y.S.2d 164 (2d Dept 1984), affd, 66 N.Y.2d 678 (1985); McGovern v. Hayes, 135 A.D.2d 125, 524 N.Y.S.2d 558 (3d Dept), appeal denied, 72 N.Y.2d 803, 532 N.Y.S.2d 368 (1988). Defamation and

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qualified privilege issues often arise in labor disputes. This important topic is beyond the scope of this work. See generally, Carolyn Kelly MacWilliam, Libel and Slander: Statements Regarding Labor Relations or Disputes, 94 A.L.R.5th 149 82. Stukuls v. State, 42 N.Y.2d 272, 397 N.Y.S.2d 746 (1977). 83. Epifani v. Johnson, 65 A.D.3d 224, 882 N.Y.S.2d 234 (2d Dept 2009). 84. Fisher v. Schur, 46 N.Y.2d 720, 413 N.Y.S.2d 372 (1978); Wideberg v. Tiffany & Co., Index No. 4534/92, 1992 WL 454053 (Sup. Ct., Westchester Co. Dec. 4, 1992). See also Pandian v. N.Y. Health & Hosps. Corp., 54 A.D.3d 590, 863 N.Y.S.2d 668 (1st Dept 2008) (reference to medical licensing bureau protected by qualified privilege); Schaefer v. Brookdale Univ. Hosp., 18 Misc. 3d 1142(A), 859 N.Y.S.2d 899 (Sup. Ct., Kings Co. 2008), affd, 66 A.D.3d 985, 888 N.Y.S.2d 122 (2009) (same). See also Sandiford v. City of N.Y. Dept of Educ., 26 Misc. 3d 1223(A),906 N.Y.S.2d 440 (Sup. Ct., N.Y. Co. 2010) (recognizing qualified privilege in context of an employment dispute). 85. Liberman v. Gelstein, 80 N.Y.2d 429, 590 N.Y.S.2d 857 (1992). Under the New York Times actual malice standard, to defeat a qualified privilege, it is plaintiffs burden to establish that the statements were made with a high degree of awareness of probable falsity. Id. 86. Mancuso v. Allergy Assocs. of Rochester, 70 A.D.3d 1499, 895 N.Y.S.2d 756 (4th Dept 2010). 87. Stukuls, 42 N.Y.2d 272. 88. Id. (discussing history of absolute privilege). 89. Id. 90. Id. 91. Cavallaro v. Pozzi, 28 A.D.3d 1075, 814 N.Y.S.2d 462 (4th Dept 2006). 92. Weiner v. Weintraub, 22 N.Y.2d 330, 292 N.Y.S.2d 667 (1968). 93. Sullivan v. Bd. of Educ., 131 A.D.2d 836, 517 N.Y.S.2d 197 (2d Dept 1987) (statement in Education Law 3020-a charges brought against a tenured teacher).

94. Silver v. Mohasco Corp., 62 N.Y.2d 741, 476 N.Y.S.2d 822 (1984); Missick v. Big V Supermarkets, Inc., 115 A.D.2d 808, 495 N.Y.S.2d 594 (3d Dept 1985). 95. See, e.g., N.Y. Social Services Law 473-b ([a]ny person who in good faith believes that a person eighteen years of age or older may be an endangered adult or in need of protective or other services . . . shall have immunity from any civil liability that might otherwise result by reason of . . . making . . . [a] report). Thus, in Marilyn S. v. Independent Group Home, 73 A.D.3d 895, 904 N.Y.S.2d 70 (2d Dept 2010), a defamation action as well as several other tort causes of action were dismissed because the defendant was absolutely privileged to report to the suspected sexual abuse. 96. Michaels v. Gannett Co., 10 A.D.2d 417, 199 N.Y.S.2d 778 (4th Dept 1960). 97. Kidder v. NYP Holdings Co., Inc., 12 N.Y.3d 348, 884 N.Y.S.2d 194 (2009). 98. Readers could, of course, refer to some of the many excellent treatises. One that I favor is Rodney A. Smolla, Law of Defamation (2d ed. 2008). 99. Richard Raysman & Peter Brown, Online Defamation and Anonymous Defendants, N.Y.L.J., p. 5, col. 1, (Feb. 9, 2010). 100. See Intellect Art Multimedia, Inc. v. Milewski, 24 Misc. 3d 1248(A), 899 N.Y.S.2d 60 (Sup. Ct., N.Y. Co. 2009) (applying defamation standards to alleged defamatory statement contained on a website); Finkel v. Dauber, N.Y.L.J., July 23, 2010, p. 32, col. 1 (Sup. Ct., Nassau Co.) (same with respect to alleged defamatory statement posted on Facebook). See also Sandals Resorts Intl, Ltd. v. Google, Inc., 27 Misc. 3d 1207(A), 2010 WL 1428266 (Sup. Ct., N.Y. Co. 2010). The Internet, of course, often allows an individual to post a comment to a blog or other online media in an anonymous fashion. The case law concerning this new breed of lawsuit is still developing and is beyond the scope of this work. See Daniel Haier, Comment, Ottinger v. Non-party The Journal News, 54 N.Y.L. Sch. L. Rev. 603 (2009/2010). Finkel, N.Y.L.J., July 23, 2010, involved anonymous postings on Facebook.

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