In this action alleging a cause of action for defamation, Defendant moves to dismiss the complaint pursuant to CPLR §3211 (a) (1) (documentary evidence) and CPLR §3211 (a) (7) (failure to state a cause of action). The Court has considered the following papers on the motion: 1. Notice of Motion, Attorney Affirmation and Exhibits A and B attached thereto, Affidavit of Defendant, and Memorandum of Law; 2. Attorney Affirmation in Opposition, Affidavit of Plaintiff and Exhibits A through E attached thereto, and Memorandum of Law in Opposition; 3. Attorney Affirmation in Reply, Reply Affidavit of Defendant and Exhibits A through D attached thereto. To commence the statutory time period for appeals as of right (CPLR 5513 [a]), you are advised to serve a copy of this order, with notice of entry, upon all parties. DECISION & ORDER To begin, it is well-settled that “[a] motion to dismiss based on documentary evidence pursuant to CPLR 3211(a)(1) may be appropriately granted ‘only where the documentary evidence utterly refutes plaintiff’s factual allegations, conclusively establishing a defense as a matter of law.’” Rabos v. R&R Bagels & Bakery, Inc., 100 A.D.3d 849, 851 (2d Dept. 2012), quoting, Goshen v. Mutual Life Ins. Co. of N.Y., 98 N.Y.2d 314, 326 (2002). Moreover, “[o]n a motion to dismiss a complaint pursuant to CPLR 3211(a) (7) for failure to state a cause of action, the court must afford the complaint a liberal construction (see CPLR 3026) and ‘accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible inference, and determine only whether the facts as alleged fit within any cognizable legal theory.’” G.L. v. Markowitz, 101 A.D.3d 821 (2d Dept. 2012)(Internal citations omitted). “‘Where evidentiary material is submitted and considered on a motion to dismiss a complaint pursuant to CPLR 3211 (a) (7), and the motion is not converted into one for summary judgment, the question becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one….’” Id., quoting, Rabos v. R & R Bagels & Bakery, Inc., 100 A.D.3d 849, 851-852 (2d Dept. 2012). Specifically with respect to a cause of action alleging defamation, such an action “is subject to dismissal if the statements are insufficiently pleaded, constitute nonactionable opinion, or are subject to a qualified privilege defense.” Landa v. Capital One Bank, 172 A.D.3d 1052, 1053 (2d Dept. 2019) (Internal citations omitted). The crux of the within analysis focuses on whether the alleged defamatory statements constitute nonactionable opinion. Thus, the court, in determining the sufficiency of the defamatory pleading, must “consider ‘whether the contested statements are reasonably susceptible of a defamatory connotation.’” Davis v. Boeheim, 24 N.Y.3d 262, 268 (2014), quoting, Armstrong v. Simon & Schuster, 85 N.Y.2d 373, 379 (1995)(Internal citations omitted). Statements that have a “defamatory connotation” are “false statement[s] ‘that tend[] to expose a person to public contempt, hatred, ridicule, aversion or disgrace.’” Davis v. Boeheim, 24 N.Y.3d at 268, quoting, Thomas H. V. Paul B., 18 N.Y.3d 580, 584 (2012). Simply stated, falsity is a necessary element of a defamation cause of action. Id., quoting, Gross v. New York Times Co., 82 N.Y.2d 146, 152-153 (1993). Thus, the alleged defamatory statements must be statements of fact as “only facts are capable of being proven false.” Id. In other words, if the alleged defamatory statements are “pure opinion,” such statements are not actionable.1 Id. “Distinguishing between fact and opinion is a question of law for the courts, to be decided based on ‘what the average person hearing or reading the communication would take it to mean.’” Id., quoting, Steinhilber v. Alphonse, 68 N.Y.2d 283, 289 (1986). The communication must be read in the overall context in which it was made, including its tone and apparent purpose. See, Landa v. Capital One Bank, 172 A.D.3d at 1054, citing, Brian v. Richardson, 87 N.Y.2d 46, 51 (1995). The alleged defamatory statements that are the subject of the within action are pleaded as follows: 15. That on or about January 30, 2019, Defendant posted on Google.com, for public review and consideration, the following statement: “Laurie DiFrancesco is one of the worst and intrusive real estate agents in Rockland County. I was a seller when I encountered her January 29, 2019. She Talks excessively on every topic. She is pushy and disrespectful to sellers. She inserts herself into every conversation regarding every aspect of a sellers home. She claims to know all about electrical, plumbing, landscaping, building and the list goes on and on. She claimed I had aluminum wiring throughout my home a tactic she used to manuveuver [sic] us down on our price. She claimed my roof was old when it was just replaced a year ago. This is her tactic. STAY AWAY FROM HER. SHE IS AN AWFUL REAL ESTATE AGENT.” * * * 19. That, furthermore, on January 30, 2019, Defendant posted on Realtor.com, for public review and consideration, the following statement: “Had an awful experience with Laurie. She is pushy, intrusive. Believes she knows more than the electrician, plumber, builder etc and of course the lawyers. Interjects her comments on every subject. If you want a smooth, calm enjoyable experience, DO NOT USE LAURIE. She is also unprofessional. Calls the sellers direct when she represents the buyers. Stay Clear. Jodi Rothmann” * * * 20. That, furthermore, on January 29, 2019, Defendant also posted on Realtor.com, for public review and consideration, the following statement: “Laurie is an abrasive, pushy, obnoxious and deceitful broker. I was a seller and she thought she knew everything about electrical, plumbing, roofing etc. She comes across as a know it all and she contacted us directly when she was supposed to go through the broker. I would no[t] recommend her if you want a peaceful, good experience. SHE WILL DRIVE YOU CRAZY” See, Defendant’s Exhibit A at pp. 4-5. As this Court is required to do, the Court must look at the overall context, tone and apparent purpose of Defendants’ postings on Google.com and Realtor.com, both internet websites. First, the Court recognizes that “[t]he culture of Internet communications, as distinct from that of print media such as newspapers and magazines, has been characterized as encouraging a ‘freewheeling, anything-goes writing style.’” Sandals Resorts Intl. Ltd. v. Google, Inc., 86 A.D.3d 32, 43 (1st Dept. 2011)(Internal citation omitted). Taking this into consideration and the content and context of the postings, a reasonable reader would conclude that the alleged statements constitute the opinion of Defendant. Defendant was clearly using these posts to express her experience, albeit a negative one, regarding the sale of her house. Had Defendant written a positive, glowing review of her experience with Plaintiff, also an expression of an opinion, there would be no lawsuit. Nowadays, the Internet is a place to rate everything, from purchases on Amazon, restaurants on Yelp, and hotels on Hotels.com, Expedia or Travelocity, to name just a few. So too did Defendant post her opinion, which is not actionable. Based on the foregoing, it is hereby ORDERED that Defendant’s motion to dismiss Plaintiff’s Complaint is granted. The foregoing constitutes the Decision and Order of this Court. Dated: September 4, 2019 New City, New York
