Defamation - New York Court of Appeals Addresses Fact Versus Opinion in Summary Judgment Context
By Matthew Lerner
Halstead v. Brokaw (Motion for leave to appeal granted on Dec. 10, 2010) 74 A.D.3d 1283 (2010)
The appeal concerns one of three related actions to recover damages for defamation. The novel issue appears to concern a court?s determination of whether a statement is one of opinion or of fact. The Court of Appeals will likely re-examine its holding in Gross v. New York Times Co., 82 N.Y.2d 146 (1993), which set forth the following relevant factors for a court to determine whether a statement is an opinion or of fact: ?(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.' " (Id. [quoting Steinhilber v. Alphonse, 68 N.Y.2d 283, 292 ).
A unanimous panel at the Second Department granted the defendants? motion for summary judgment dismissing the second action. The Court held that the plaintiff in action No. 2 failed to raise a triable issue of fact.
Standards of Review: Summary Judgment - Opportunity to complete discovery From Gant v. State Farm, NPO, COA 4/22/2011 This case addresses within the PIP context the proof needed to obtain lost wages by a self-employed claimant. Although one of the issues on appeal related to the burden and quality of the evidence presented which the court considered self-serving spreadsheet (the PIP carrier had requested tax returns which were never provided over a two-year period), the remaining issue on appeal dealt with the opportunity to present the evidence: The standard for summary judgment is as follows: ?if the pleadings, depositions, answers to interrogatories, stipulations, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law...