14-3417-cv
Sorvillo v. St. Francis Preparatory School

                           UNITED STATES COURT OF APPEALS
                               FOR THE SECOND CIRCUIT

                                        SUMMARY ORDER

Rulings by summary order do not have precedential effect. Citation to a summary order filed on or
after January 1, 2007, is permitted and is governed by Federal Rule of Appellate Procedure 32.1 and
this court’s Local Rule 32.1.1. When citing a summary order in a document filed with this court, a
party must cite either the Federal Appendix or an electronic database (with the notation “summary
order”). A party citing a summary order must serve a copy of it on any party not represented by
counsel.

    At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, at 40 Foley Square, in the City of New York, on
the 20th day of April, two thousand fifteen.

Present: ROBERT A. KATZMANN,
                     Chief Judge,
         ROSEMARY S. POOLER,
         SUSAN L. CARNEY,
                     Circuit Judges.
________________________________________________

ELIZABETH CUCINOTTA SORVILLO,

                          Plaintiff-Appellant,

JANE DOE, MARK EVANGELISTA,

                          Plaintiffs,

                          v.                     14-3417-cv

ST. FRANCIS PREPARATORY SCHOOL, FRANCISCAN BROTHERS OF BROOKLYN,
BROTHER LEONARD CONWAY,

                          Defendants-Appellees,

VARIOUS MEMBERS OF THE ST. FRANCIS PREPARATORY SCHOOL BOARD OF
TRUSTEES, whose names are currently unknown and thus designated as JAMES DOE 1XXX,

                          Defendants.
______________________________________________
For Plaintiff-Appellant:           Kevin T. Mulhearn, Kevin T. Mulhearn P.C., Orangeburg, NY.
For Defendants-Appellees:          Philip C. Semprevivo, Biederman Hoenig Semprevivo PC,
                                   New York, NY.


       Appeal from the United States District Court for the Eastern District of New York
(Johnson, J.).

       ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,

and DECREED that the judgment of the district court be and hereby is AFFIRMED.

       Plaintiff-Appellant Elizabeth Cucinotta Sorvillo appeals from the August 15, 2014

dismissal by the Eastern District of New York (Johnson, J.) of a complaint she filed against her

former employer, St. Francis Preparatory School (“St. Francis”), and others connected with the

school. Specifically, Sorvillo’s complaint alleged that she was defamed by statements made in a

2013 letter sent to alumni, parents, faculty members, administrators, trustees and others in the St.

Francis community by St. Francis’s principal, Brother Leonard Conway (“Brother Leonard”). In

relevant part, the letter stated: (1) Brother Leonard had “received several disturbing emails from

members of our community stating that the content of numerous recent ‘blog’ postings on

[Sorvillo’s] internet site [www.burnandrotinhell.com] are defamatory and have crossed over the

line of free speech”; (2) he was “investigating those postings . . . with the assistance of legal

counsel”; and (3) “[s]peech is not ‘free’ when its purpose is to bully, to convey hatred, or to

spread malicious lies and unsubstantiated rumors.” J.A. 57. We assume the parties’ familiarity

with the other relevant facts, the procedural history, and the issues presented for review.

       We review the district court’s dismissal of Sorvillo’s defamation claims de novo,

accepting all factual allegations in the complaint as true and drawing all reasonable inferences in

the plaintiff’s favor. See Adelson v. Harris, 774 F.3d 803, 807 (2d Cir. 2014). On appeal,

Sorvillo advances two primary arguments. First, she argues that the district court erred by

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“erroneously characteriz[ing] [her] claim as one based on a defamatory implication.”Appellant’s

Br. 17. Second, she argues that under the correct legal standard, the district court had no basis on

which to dismiss her complaint.

       To establish libel under New York law, a plaintiff must prove five elements: “(1) a

written defamatory factual statement [of and] concerning the plaintiff; (2) publication to a third

party; (3) fault; (4) falsity of the defamatory statement; and (5) special damages or per se

actionability.” Chau v. Lewis, 771 F.3d 118, 126–27 (citing Celle v. Filipino Reporter Enters.

Inc., 209 F.3d 163, 176 (2d Cir. 2000) (applying New York law)). “Whether particular words are

defamatory presents a legal question to be resolved by the court[s] in the first instance.” Celle,

209 F.3d at 177 (alteration in original) (quoting Aronson v. Wiersma, 483 N.E.2d 1138, 1139

(N.Y. 1985)). It is “the responsibility of the jury to determine whether the plaintiff has actually

been defamed . . . [but] a threshold issue for resolution by the court is whether the statement

alleged to have caused plaintiff an injury is reasonably susceptible to the defamatory meaning

imputed to it.” Levin v. McPhee, 119 F.3d 189, 195 (2d Cir. 1997) (internal citations omitted).

       While a plaintiff generally must plead that the defendant made specific false statements

of fact in order to make out a prima facie case of defamation, there are several exceptions to this

rule. One exception is defamation by implication. Under New York law, defamation by

implication is “premised not on direct [false] statements but on false suggestions, impressions

and implications arising from otherwise truthful statements.” Armstrong v. Simon & Schuster,

Inc., 649 N.E.2d 825, 829 (N.Y. 1995). Defamation by implication occurs where “[a]

combination of individual statements which in themselves may not be defamatory might lead the

reader to draw an inference that is damaging to the plaintiff.” Herbert v. Lando, 781 F.2d 298,

307 (2d Cir. 1986).


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       Another exception to this general rule is mixed opinion-fact defamation (also sometimes

referred to as “mixed opinion defamation”). Under New York law, a plaintiff may maintain a

mixed opinion-fact defamation claim where he makes otherwise non-actionable statements of

opinion, but where

       the statement of opinion implies that it is based upon facts which justify the opinion but
       are unknown to those reading or hearing it. . . . The actionable element of a “mixed
       opinion” is not the false opinion itself—it is the implication that the speaker knows
       certain facts, unknown to his audience, which support his opinion and are detrimental to
       the person about whom he is speaking.

Steinhilber v. Alphonse, 501 N.E.2d 550, 552–53 (N.Y. 1986) (internal citations and quotation

marks omitted); see also Restatement (Second) of Torts § 566 (1977) (“A defamatory

communication may consist of a statement in the form of an opinion, but a statement of this

nature is actionable only if it implies the allegation of undisclosed defamatory facts as the basis

for the opinion.”). That said, where “a statement of opinion . . . is accompanied by a recitation of

the facts on which it is based or . . . does not imply the existence of undisclosed underlying

facts,” a mixed opinion-fact defamation claim is not actionable. Gross v. N.Y. Times Co., 623

N.E.2d 1163, 1168 (N.Y. 1993).

       While we agree with Sorvillo that the district court mischaracterized her complaint as one

alleging “defamation by implication,” rather than “mixed opinion-fact defamation,” we

nevertheless affirm the district court’s dismissal of the defamation claim because, even under the

correct standard, Sorvillo’s complaint failed to state a claim upon which relief may be granted.

See Thyroff v. Nationwide Mut. Ins. Co., 460 F.3d 400, 405 (2d Cir. 2006) (“[W]e are free to

affirm a decision on any grounds supported in the record.”). First, as the New York Court of

Appeals has held, “a statement of opinion that is accompanied by a recitation of the facts on

which it is based or one that does not imply the existence of undisclosed underlying facts,” is not


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actionable. Gross, 623 N.E.2d at 1168. None of the three statements in the letter indicated that

Brother Leonard had any additional facts upon which his opinions were based. To the contrary,

the first statement in the letter expressly shared with the reader the basis of Brother Leonard’s

opinion, namely that he “received several disturbing emails from members of [the St. Francis]

community stating that the content of numerous recent ‘blog’ postings on [an] internet site

[were] defamatory.” Nothing in this statement indicated that he had any additional facts other

than those that had been presented by the e-mails he received from individuals within his

community. The second statement asserts that Brother Leonard was in the process of

investigating the postings and evaluating all potential remedial actions with St. Francis’s legal

counsel. Far from implying that Brother Leonard had any knowledge about Sorvillo that he was

not sharing with his readers, the letter explained that he was in the process of gathering

additional information. Finally, the third statement—that “[s]peech is not ‘free’ when its purpose

is to bully, to convey hatred, or to spread malicious lies and unsubstantiated rumors”—is pure

opinion and does not concern or imply any facts about Sorvillo.

       In addition, even a mixed opinion-fact defamation claim must be “of and concerning” the

plaintiff. See Kirch v. Liberty Media Corp., 449 F.3d 388, 399–400 (2d Cir. 2006) (noting that

“[t]he ‘of and concerning’ requirement stands as a significant limitation on the universe of those

who may seek a legal remedy for communications they think to be false and defamatory and to

have injured them.”). Here, as the district court correctly explained, the allegedly defamatory

statements were made about the authors of the blog posts, and were not “of and concerning “

Sorvillo in her capacity as the manager of the website www.burnandrotinhell.com.

       Because we conclude that Sorvillo’s complaint failed to state a claim, we need not

consider the defendants’ argument that Brother Leonard’s statements were protected by a


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qualified privilege. We have considered Sorvillo’s remaining arguments and find them to be

without merit. For the reasons given, we AFFIRM the judgment of the district court.


                                           FOR THE COURT:
                                           CATHERINE O’HAGAN WOLFE, CLERK




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