                           State of New York
                    Supreme Court, Appellate Division
                        Third Judicial Department
Decided and Entered: December 29, 2016                    522444
________________________________

DENNIS G. HULL et al.,
                    Appellants,
      v
                                             MEMORANDUM AND ORDER
TOWN OF PRATTSVILLE et al.,
                    Respondents,
                    et al.,
                    Defendant.
________________________________


Calendar Date:    November 21, 2016

Before:    McCarthy, J.P., Lynch, Rose, Clark and Aarons, JJ.

                              __________


     Kevin A. Luibrand, Latham, for appellants.

      Shantz & Belkin, Latham (Frederick F. Shantz of counsel),
for Town of Prattsville and others, respondents.

                              __________


Rose, J.

      Appeal from an order of the Supreme Court (Fisher, J.),
entered September 24, 2015 in Greene County, which, among other
things, granted certain defendants' motion for summary judgment
dismissing the complaint.

      In the aftermath of severe flooding caused by Hurricane
Irene in August 2011, plaintiff Dennis G. Hull, with another
person working for him, towed approximately 100 damaged vehicles
located in the Town of Prattsville, Greene County, including a
vehicle owned by defendant John King. In April 2012, King wrote
a letter to the Town Board asking who had authorized Hull – and
Hull's company, plaintiff Hull Ventures – to tow his vehicle away
from where it had been parked on private property and expressing
                              -2-                522444

his "outrage" over the fact that plaintiffs had charged his
insurance company a fee of $934.20. Among other things, the
letter accused plaintiffs of "grand theft auto," "price gouging"
and "pull[ing] one over on the insurance companies." At the
subsequent Town Board meeting, defendant Bonita Chase, a Town
Board member, acknowledged receipt of the letter and stated that
the Town Board would look into its allegations. In the course of
the ensuing investigation by several agencies, Hull indicated
that defendant Michael O'Hara, who was appointed by defendant
Town of Prattsville to assist in managing the flood cleanup
efforts, directed him to tow the vehicles. Defendant Kory
O'Hara, the Town Supervisor, and Michael O'Hara each provided a
sworn statement denying that they had authorized Hull to tow
vehicles without first obtaining the owner's permission.

      After filing a notice of claim, plaintiffs commenced this
action, alleging, among other things, that six statements in
King's April 2012 letter were defamatory, that Chase and Kory
O'Hara republished the letter at the Town Board meeting and that
the O'Haras' sworn statements were also defamatory. Following
joinder of issue, plaintiffs filed a bill of particulars,
asserting, as is relevant here, that King made two additional
defamatory statements in a May 2012 letter to plaintiffs' counsel
and that Kory O'Hara made an additional defamatory statement in
his sworn statement. Thereafter, the Town, the O'Haras and Chase
(hereinafter collectively referred to as the Town defendants) and
King moved for summary judgment dismissing the complaint.
Supreme Court partially granted King's motion, finding that
portions of the six statements from the April 2012 letter and the
two statements from the May 2012 letter were not defamatory, as
they were either true or constituted pure opinion. In addition,
Supreme Court granted the motion by the Town defendants in its
entirety, finding, among other things, that they are entitled to
an absolute privilege and, alternatively, a qualified privilege.
Plaintiffs now appeal.

      Turning first to King's motion, plaintiffs contend that
Supreme Court erred in dismissing the entirety of the statements
identified by the court as 2, 6, 9 and 10, and a portion of
statement 4, because they are defamatory and cannot be
                              -3-                522444

characterized as merely opinions.1 It is well settled that,
"[s]ince falsity is a necessary element of a defamation cause of
action and only facts are capable of being proven false, only
statements alleging facts can properly be the subject of a
defamation action" (Davis v Boeheim, 24 NY3d 262, 268 [2014]
[internal quotation marks, ellipsis and citations omitted];
see Thomas H. v Paul B., 18 NY3d 580, 584 [2012]; Coe v Town of
Conklin, 94 AD3d 1197, 1199 [2012]). "Distinguishing actionable
fact from a protected expression of opinion is a question of law
in which several factors are weighed, including whether the
allegedly defamatory words have a precise meaning that is readily
understood, whether the statement can be proven as true or false,
and whether the context and surrounding circumstances would
indicate that the comment is an opinion" (Baker v Galusha, 114
AD3d 1124, 1124-1125 [2014] [citation omitted]; see Gentile v
Grand St. Med. Assoc., 79 AD3d 1351, 1352-1353 [2010]; Bonanni v
Hearst Communications, Inc., 58 AD3d 1091, 1092 [2009]).

      While a pure expression of opinion is not actionable, a
"mixed opinion" – i.e., one that "'implies that it is based upon
facts which justify the opinion but are unknown to those reading
or hearing it'" – can be the subject of a defamation claim (Davis
v Boeheim, 24 NY3d at 269, quoting Steinhilber v Alphonse, 68
NY2d 283, 289 [1986]; see Loder v Nied, 89 AD3d 1197, 1199
[2011]). "Rather than sifting through a communication for the
purpose of isolating and identifying assertions of fact," we must
"look to the over-all context in which the assertions were made
and determine on that basis whether the reasonable reader would
have believed that the challenged statements were conveying facts
about the plaintiff" (Davis v Boeheim, 24 NY3d at 270 [internal
quotation marks, ellipsis and citations omitted]; see Brian v
Richardson, 87 NY2d 46, 51 [1995]; Loch Sheldrake Beach & Tennis
Inc. v Akulich, 141 AD3d 809, 815 [2016], lv dismissed ___ NY3d
___ [Dec. 22, 2016]).


    1
        Inasmuch as plaintiffs have failed to address Supreme
Court's finding in relation to statements 1, 3 and 5, any
challenge thereto has been abandoned (see NYAHSA Servs., Inc.,
Self-Ins. Trust v Recco Home Care Servs., Inc., 141 AD3d 792, 794
n 2 [2016]).
                              -4-                522444

      Preliminarily, we note that Supreme Court properly found
that King's reference to Hull engaging in "price gouging" in the
April 2012 letter is a factual statement that has a defamatory
meaning, inasmuch as it is capable of being proven true and
implies that Hull violated General Business Law § 396-r. Supreme
Court erred, however, in finding that statements 2, 4 and 6 were
not similarly actionable. These statements constitute mixed
opinions, as each includes a strong inference that King knows
undisclosed facts that support his conclusion that Hull, among
other things, committed grand larceny in the fourth degree and
engaged in fraud by overcharging insurance companies (see Baker v
Galusha, 114 AD3d at 1125; Wilcox v Newark Val. Cent. School
Dist., 74 AD3d 1558, 1562 [2010]; see generally Davis v Boeheim,
24 NY3d at 269). Given that these statements accuse Hull of
serious impropriety, they "are sufficiently susceptible to a
defamatory meaning to avoid summary judgment" (Baker v Galusha,
114 AD3d at 1125; see Loder v Nied, 89 AD3d at 1200), and we
conclude that Supreme Court erred in granting King's motion with
respect to them.

      Turning to statements 9 and 10, both are contained in a
letter that King sent in response to correspondence from
plaintiffs' then-attorney in which the attorney apparently
demanded that King apologize and threatened to sue King. Upon
our review of these statements, we find that the context, tone
and defensive nature of the letter all suggest a "circumstance[]
in which an audience may anticipate [the use] of epithets, fiery
rhetoric or hyperbole" (Steinhilber v Alphonse, 68 NY2d at 294
[internal quotation marks and citation omitted]; accord Gentile v
Grand St. Med. Assoc., 79 AD3d at 1353; see Trustco Bank of N.Y.
v Capital Newspaper Div. of Hearst Corp., 213 AD2d 940, 942
[1995]). Thus, aside from the few factual details regarding
Hull's actions, a reasonable reader would conclude that the
statements, including King's reference to the letter as a form of
"harassment" and his assertion that Hull charged "enormous fees,"
represented King's opinion (see Steinhilber v Alphonse, 68 NY2d
283 at 294-295; Gentile v Grand St. Med. Assoc., 79 AD3d at 1353;
Bonanni v Hearst Communications, Inc., 58 AD3d at 1093). As for
the factual details in the letter, the evidence in the record
establishes their truth and, therefore, they are not actionable
(see Rinaldi v Holt, Rinehart & Winston, 42 NY2d 369, 383 [1977],
                               -5-                522444

cert denied 434 US 969 [1977]; Nekos v Kraus, 62 AD3d 1144, 1145
[2009]). Moreover, because King's letter was sent in
anticipation of litigation and plaintiffs have not shown that the
statements made therein were motivated solely by malice
(see Liberman v Gelstein, 80 NY2d 429, 439 [1992]), we
alternatively find that King is entitled to a qualified privilege
(see Front, Inc. v Khalil, 24 NY3d 713, 720 [2015]).

      Turning to the motion by the Town defendants, plaintiffs
contend that Supreme Court erred in finding that Kory O'Hara and
Chase were entitled to an absolute privilege.2 Town supervisors
and town board members are afforded absolute immunity from
liability for defamation "with respect to statements made during
the discharge of those responsibilities about matters which come
within the ambit of those duties" (Clark v McGee, 49 NY2d 613,
617 [1980]; accord Fiore v Town of Whitestown, 125 AD3d 1527,
1529 [2015], lv denied 25 NY3d 910 [2015]). Notwithstanding this
absolute immunity, these public officials "may still be sued if
the subject of the communication is unrelated to any matters
within [their] competence or if the form of the communication –
e.g., a public statement – is totally unwarranted" (Clark v
McGee, 49 NY2d at 618-619 [internal quotation marks, ellipsis and
citation omitted]; accord Kelly v State of New York, 131 AD2d
176, 181 [1987]). Inasmuch as plaintiffs assert that the
statements by Kory O'Hara and Chase were not matters within their
authority or competence, we must examine "the subject matter of
the statement[s] and the forum in which [they were] made in the
light of the speaker's public duties" (Doran v Cohalan, 125 AD2d
289, 291 [1986], lv dismissed 69 NY2d 984 [1987]; see e.g. Van


     2
        During the pendency of this appeal, Supreme Court granted
plaintiffs' motion to reargue and found, as is relevant here,
that Michael O'Hara was not entitled to an absolute privilege,
but that he was entitled to a qualified privilege.

       Plaintiffs also argue that the Town is not entitled to an
absolute privilege; however, the only allegations against the
Town relate to the actions of Kory O'Hara and Chase. Thus, the
Town's liability rises or falls with that of Kory O'Hara and
Chase.
                               -6-                522444

Donsel v Schrader, 84 AD3d 1467, 1469 [2011]).

      Here, although the complaint alleges that Kory O'Hara and
Chase republished King's April 2012 letter at the Town Board
meeting, plaintiffs conceded at oral argument that the letter was
not read at the meeting and, thus, no republication occurred. As
to Chase's comment that the Town Board would "look into" King's
allegations and Kory O'Hara's comment denying that he authorized
Hull to tow vehicles, we agree with Supreme Court that these
comments – which were both made during the course of the Town
Board meeting – were directly related to matters within the scope
of their public duties and were not unwarranted (see Van Donsel v
Schrader, 84 AD3d at 1469; Monroe v Schenectady County, 266 AD2d
792, 795 [1999]). We similarly find that the sworn statement
that Kory O'Hara provided to an investigator with the Department
of Financial Services (statements 7 and 11) was also made in the
performance of his public duties and, therefore, he is entitled
to an absolute privilege (see Cosme v Town of Islip, 63 NY2d 908,
909 [1984]; compare Clark v McGee, 49 NY2d at 620).

      Further, we agree with Supreme Court that Michael O'Hara is
entitled to a qualified privilege in regard to his sworn
statement to the Greene County Sheriff's office (statement 8),
given that he and the investigator had a common interest in the
subject of the investigation (see Toker v Pollak, 44 NY2d 211,
221 [1978]; Segall v Sanders, 129 AD3d 819, 820-821 [2015];
Present v Avon Prods., 253 AD2d 183, 188 [1999], lv dismissed 93
NY2d 1032 [1999]).3 Once this qualified privilege attached, it
was then incumbent upon plaintiffs to show that Michael O'Hara
"'acted out of personal spite or ill will, with reckless
disregard for the statement['s] truth or falsity, or with a high
degree of belief that [the] statement[] [was] probably false'"
(Cusimano v United Health Servs. Hosps., Inc., 91 AD3d 1149, 1150
[2012], lv denied 19 NY3d 801 [2012], quoting Foster v Churchill,
87 NY2d 744, 752 [1996]; see Wilcox v Newark Val. Cent. Sch.
Dist., 107 AD3d 1127, 1133 [2013]).


     3
        To the extent that plaintiffs contend that Michael O'Hara
made a similar oral statement to an investigator with the
Department of Financial Services, the same analysis applies.
                              -7-                522444

      Here, plaintiffs contend that Michael O'Hara's sworn
statement, in which he denied that he authorized Hull to tow
vehicles unless it was with the owner's permission, conflicts
with his deposition testimony in which he acknowledged that he
did, in fact, ask Hull to tow a vehicle that was on Town property
and another that was blocking a roadway. Our review of the sworn
statement and the deposition testimony, however, reveals that
they are not in conflict inasmuch as there is no proof that the
owners of the two vehicles referenced by Michael O'Hara had not
given their permission to have their vehicles towed. Further,
the record is bereft of evidence establishing that Michael O'Hara
gave the sworn statement knowing that it was false. Accordingly,
we find that plaintiffs have failed to establish that "'malice
was the one and only cause for the publication'" and, therefore,
Michael O'Hara is entitled to a qualified privilege (Liberman v
Gelstein, 80 NY2d at 439, quoting Stukuls v State of New York, 42
NY2d 272, 282 [1977]; see Cusimano v United Health Servs. Hosps.,
Inc., 91 AD3d at 1151; Clark v Schuylerville Cent. School Dist.,
74 AD3d 1528, 1529 [2010]). In light of our determination, we
need not address the Town defendants' alternative grounds for
affirmance (see generally Parochial Bus Sys. v Board of Educ. of
City of N.Y., 60 NY2d 539, 545-546 [1983]).

      Plaintiffs' remaining contentions, to the extent not
expressly addressed herein, have been considered and determined
to be without merit.

     McCarthy, J.P., Lynch, Clark and Aarons, JJ., concur.
                              -8-                  522444

      ORDERED that the order is modified, on the law, without
costs, by reversing so much thereof as granted defendant John
King's motion as to statements 2, 4 and 6; motion denied to that
extent; and, as so modified, affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
