The following papers were considered in connection with defendant’s motion for an order pursuant to CPLR 3211 (a) (7) dismissing the complaint for failure to state a cause of action, and for an award of sanctions pursuant to CPLR 8303-a; and plaintiff’s cross-motion pursuant to CPLR 3025 for leave to amend the complaint, and for an award of sanctions pursuant to CPLR 8303-a: Papers Numbered Notice of Motion, Affirmation, Exhibits A — B, and Memorandum of Law 1 Notice of Cross-Motion, Affidavit, Exhibits A — F, and Memorandum of Law 2 Reply Affirmation, Exhibit 1 3 DECISION and ORDER Plaintiff Gerry Feinberg is an attorney who represented a plaintiff in a medical malpractice action against Dr. David Lans (see Formisano v. Lans, Sup Ct, Westchester County, Index No. 55042/2015); defendant Devora Lans is the spouse of the defendant in that case. The complaint in this defamation action was filed on February 12, 2020, based on defendant Devora Lans’ publication of the following statement about plaintiff Gerry Feinberg on the Yelp website: “If you can’t find a lawyer to take your case, this is the lawyer for you. Ambulance chaser is too good a term for him.” The author of the posted comment is listed as “Devora L.” Plaintiff’s original complaint contained causes of action for an award of money damages and for a mandatory injunction compelling defendant to delete the statement. Plaintiff contends that defendant’s use of the phrase “ambulance chaser” renders the published statement defamatory, citing Flamm v. American Assn. of Univ. Women (201 F3d 144 [2d Cir 2000]). In moving to dismiss that complaint, defendant contended, inter alia, that the complaint contained insufficient allegations to state a cause of action for defamation, such as a failure to clearly assert that the statement is about plaintiff and to assert that the statement is false or factually incorrect. With regard to plaintiff’s cause of action for injunctive relief, defendant also pointed out the rule that “[a]bsent extraordinary circumstances, injunctive relief should not be issued in defamation cases” (Rombom v. Weberman, 309 AD2d 844, 845 [2d Dept 2003]). In response, plaintiff’s cross-motion seeks leave to amend the complaint to add details to address the insufficiency argument; however, confusingly, in his affidavit in support he states that “we are amending the complaint as of right.” He submits as Exhibit F to his cross-motion an amended complaint, specifying the date and website URL of the statement at issue, and adding the assertion that “the Statement is either a statement of fact or a statement of opinion which implies that it is based upon facts unknown by the reader which supports the opinion.” The amended complaint also omits the second cause of action. Defendant’s opposition to the cross-motion concedes that plaintiff was entitled to amend the complaint as of right, and proceeds with a discussion that treats the amended complaint as the operative pleading. Defendant contends that the amended complaint is similarly deficient, because it still fails to include the word “false” or “falsity,” which “is a sine qua non of a libel claim” (Brian v. Richardson, 87 NY2d 46, 51 [1995]), and still concerns non-actionable opinion. Plaintiff did not file, or seek to file, any reply to defendant’s argument applying the same legal arguments to the amended complaint as had been applied to the original complaint. Discussion First, given plaintiff’s correct observation that he was entitled to serve an amended complaint as of right, there is no need for this Court to grant leave to amend. The amended complaint filed as Exhibit F to plaintiff’s motion papers is deemed substituted for the original complaint. Although defendant’s initial moving papers were addressed to the original rather than the amended complaint, given the substance of defendant’s reply papers applying the legal arguments to the amended complaint, without objection by plaintiff, this Court will address the merits of defendant’s dismissal motion as applied to the amended complaint. “The tort of libel arises from the publication of a statement about an individual that is both false and defamatory” (Klepetko v. Reisman, 41 AD3d 551, 551 [2d Dept 2007], citing Brian v. Richardson, 87 NY2d 46, 50 [1995]). “In determining whether a complaint states a cause of action to recover damages for defamation, the dispositive inquiry is whether a reasonable listener or reader could have concluded that the statements were conveying facts about the plaintiff” (Goldberg v. Levine, 97 AD3d 725, 725 [2d Dept 2012]). Four factors should be considered when distinguishing fact from opinion: “(1) an assessment of whether the specific language in issue has a precise meaning which is readily understood or whether it is indefinite and ambiguous; (2) a determination of whether the statement is capable of being objectively characterized as true or false; (3) an examination of the full context of the communication in which the statement appears; and (4) a consideration of the broader social context or setting surrounding the communication including the existence of any applicable customs or conventions which might ‘signal to readers or listeners that what is being read or heard is likely to be opinion, not fact’” (Steinhilber v. Alphonse, 68 NY2d 283, 292 [1986], quoting Ollman v. Evans, 750 F2d 970, 983 [DC Cir 1984]). Turning to the first two of the foregoing factors, the phrase “[a]mbulance chaser is too good a term for him” is an “imprecise, subjective characterization” that is not capable of being objectively verified as true or false (see New York Horse Rescue Corp. v. Suffolk County Socy. for the Prevention of Cruelty to Animals, 164 AD3d 909, 909 [2d Dept 2018]). The case on which plaintiff relies, Flamm v. American Assn. of Univ. Women (201 F3d 144), is distinguishable. It involved a published directory of attorneys and other professionals, compiled by defendant organizations, in which the following note was included with the plaintiff’s listing: “Mr. Flamm handles sex discrimination cases in the area of pay equity, harassment, and promotion. Note: At least one plaintiff has described Flamm as an ‘ambulance chaser’ with interest only in ‘slam dunk cases.’” In reversing the District Court’s dismissal of the defamation complaint, which had been based on the reasoning that the statement could not reasonably be constructed as a statement of objective fact (see Flamm v. American Assn. of Univ. Women, 28 F Supp 2d 185, 191 [SD NY 1998]), the Second Circuit explained that the statement’s attributed description of Flamm as an “ambulance chaser” could reasonably be understood to imply that he engages in the unethical solicitation of clients, which is an accusation that is capable of being proven true or false (201 F3d at 153). In contrast, the statement at issue here, “ambulance chaser is too good a term for him,” far from a straightforward and provable assertion of a fact, is the essence of a non-provable opinion. Furthermore, while the third and fourth Steinhilber factors militated in favor of treating the statement in Flamm as fact-based, the opposite is true in the present case. The Flamm Court observed that “the challenged language appears in a national directory nearly seventy pages in length, compiled and distributed by a reputable professional organization with a 100 year history of supporting education. The directory purports to list ‘attorneys and other specialists’ willing to consult with women involved in higher education who are seeking redress for sex-based discrimination. The directory provides names, addresses, phone numbers and, generally, a short statement of the person’s area of interest or expertise. In such a fact-laden context, the reasonable reader would be ‘less skeptical and more willing to conclude that [the directory] stated or implied facts’“ (Flamm, 201 F3d at 154 [emphasis added], quoting Gross v. New York Times, 82 NY2d 146, 156 [1993]). Here, the context of the statement, namely, its publication on Yelp, supports the opposite conclusion. Negative comments anonymously posted on consumer review websites are typically treated as non-actionable expressions of opinion (see Torati v. Hodak, 147 AD3d 502, 503 [1st Dept 2017]). The Internet reviews at issue in Torati v. Hodak were quoted as “referring to plaintiff as a ‘bad apple,’ ‘incompetent and dishonest,’ and a ‘disastrous businessman,’ from whom consumers should ‘[s]tay far away’” (147 AD3d at 503). In dismissing the defamation claims regarding those statements, the Court noted their “[l]oose, figurative or hyperbolic tone” and observed that “Internet reviews contain elements of both fact and opinion,” but when viewed in context, they suggest to a reasonable reader that the author was merely expressing his opinion based on a negative business interaction with plaintiffs” (id.). Yelp, in particular, provides an opportunity for people to post both negative and positive reviews, stating their opinions and their perceptions of the relative merits of the reviewed service providers. It is the virtual opposite of a “fact-laden context” (id.). Moreover, statements that “amount[] to no more than name-calling or a general insult” are treated as non-defamatory because it is generally understood that such name-calling is “a type of epithet not to be taken literally (Klepetko v. Reisman, 41 AD3d at 551, citing DePuy v. St. John Fisher Coll., 129 AD2d 972, 973 [4th Dept 1987]). Defendant’s Yelp post about plaintiff is reasonably and best understood to be, simply, name-calling. Dismissal is warranted here, because consideration of both the content and the context of the allegedly defamatory statement at issue reflects that it does not form a viable basis for an actionable claim. There is no merit to either party’s application for sanctions pursuant to CPLR 8303-a. Accordingly, it is hereby ORDERED that the branch of plaintiff’s cross-motion seeking leave to amend the complaint is denied as academic, and the branch seeking an award of sanctions is denied; and it is further ORDERED that the branch of defendant’s motion seeking to dismiss the amended complaint is granted, and the branch seeking an award of sanctions is denied. This constitutes the decision and order of the Court. Dated: June 22, 2020
