Sallustio v. R. Kessler & Associates, Inc.

2017 NY Slip Op 7792, 155 A.D.3d 1510, 64 N.Y.S.3d 415

Opinions

Appeal from an order of the Supreme Court, Oneida County (David A. Murad, J.), entered May 26, 2016. The order, insofar as appealed from, denied that part of the motion of plaintiffs seeking to dismiss defendants’ fourth counterclaim.

It is hereby ordered that the order so appealed from is affirmed without costs.

Memorandum: Plaintiffs contracted with defendants for the construction of a single family residence, and construction began but was halted when a dispute arose. Plaintiffs refused to approve any further draws until the alleged defects were cured, and defendants sent plaintiffs an invoice and filed a notice of mechanic’s lien. For a period of approximately six weeks thereafter, plaintiffs placed a sign on their property that said “R. KESSLER SCREWED US BEWARE.” Plaintiffs commenced this breach of contract action, and defendants asserted various counterclaims in their answer, including one for defamation based on the sign that plaintiffs had erected. We conclude that Supreme Court properly denied that part of plaintiffs’ motion pursuant to CPLR 3211 (a) (7) seeking to dismiss the defamation counterclaim. Contrary to plaintiffs’ contention, the statement is “reasonably susceptible of a defamatory connotation” (Armstrong v Simon & Schuster, 85 NY2d 373, 380 [1995]). Furthermore, it is a mixed statement of opinion and fact and thus is actionable inasmuch as it is “an opinion that ‘implies that it is based upon facts which justify the opinion but are unknown to those reading or hearing it’ ” (Davis v Boeheim, 24 NY3d 262, 269 [2014]; see Zulawski v Taylor [appeal No. 2], 63 AD3d 1552, 1553 [4th Dept 2009]). The answer thus sufficiently states a counterclaim for defamation (see Davis, 24 NY3d at 274).

All concur except Carni, J., who dissents and votes to reverse the order insofar as appealed from in accordance with the following memorandum.