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How NY Courts Distinguish Real Defamation From Mere "Opinion"

It's true; defamation lawsuits in New York are often far from easy. In fact, more often than not, those claims will be subject to dismissal from the near-outset of the case.

"Why is that?" you ask.

Because New York's courts are called to pass upon whether the derogatory speech complained of constitutes actionable defamation, or whether it is only an expression of opinion, which is not actionable under New York law.

So how does a court make the determination whether the complained of remarks are mere opinion or not?

Fortunately, New York's appellate courts have provided some guidance on this issue, stating:

"To distinguish fact from opinion, the Court of Appeals generally analyzes the following factors:

  1. whether the specific language in issue has a precise meaning which is readily understood;
  2. whether the statements are capable of being proven true or false; and,
  3. whether either the full context of the communication in which the statement appears or the broader social context and surrounding circumstances are such as to 'signal…readers or listeners that what is being read or heard is likely to be opinion, not fact.'" Brian v. Richardson, supra at 51 (quoting Gross v. New York Times Co., 82 NY2d 146, 153 [1993], quoting Steinhilber v. Alphonse, supra).

There is one other factor that the court may consider in analyzing the remarks:

"The important distinction between a statement of opinion that implies a basis in facts which are not disclosed to the reader or listener and 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."

Gross v. New York Times Co., supra at 153.


Jonathan Cooper
Non-Compete, Trade Secret and School Negligence Lawyer