E-Mail to Unit Owners: Privileged or Defamatory? Pause Before Hitting Send

This was originally published on the SGR Blog.

Four things predictably happen in the Fall. Clocks are changed. Leaves lose color. Board controversies surface. And lawsuits result.

Residential coop and condo disputes often now involve nasty on-line accusations and exchanges. Those snarky missives may—or may not—be the basis of a claim for defamation. As a recent case illustrates, the Court may have to decide whether or not the attacks are privileged and protected communications or defamatory and actionable

On April 11, 2018, the Board of Managers of Brightwater Towers Condominium sued Nina Shlivko to recover damages for defamation.

The Board is elected by unit owners to manage the affairs of Brightwater, a condominium complex located at 501 Surf Avenue, Brooklyn, New York and 601 Surf Avenue, Brooklyn, New York. Shlivko is a unit owner and resident of Brightwater.

According to the complaint, on six separate occasions Shlivko made defamatory statements about the Board or its members.

The complaint sets forth alleged defamatory statements:

On December 21, 2017 at 10:14:19 PM EST, Shlivko sent an e-mail to BWTUnitOwners@googlegroups.com, an address which operates as a listserv, directing e-mails to over 400 people. The e-mail called for the Board of Managers to be replaced by a management company, and asserted that “[w]e need major change here at BWT, trust, transparency, respect from the board and management” and ” [i]t’s very difficult to choose trustworthy board, and even harder to remove corrupt board.

In the same e-mail, Shlivko added that, once the management company takes over, “I guarantee there will be no corruption nor abuse of power any longer.”

The following day, on December 22, 2017 at 1:55:35 AM EST, Shlivko’s allegations became more specific when she wrote in an email sent to the same individuals that:

People at BWT community sacrificed so much since this board took over, having no super and sufficient cleaning staff and therefore dirty buildings, [losing] playground, accrued all kinds of unlawful fees and penalties, required to purchase new a/c units and grills, non-refundable move-in/out charges, not having community room for group gatherings.

Shlivko took to her e-mail once again on Christmas Day of 2017, when at 11:18:18 AM EST she sent an email to the group accusing the Board of breaching its fiduciary duty and of committing theft. Shlivko wrote:

This is exactly the point, we chose accountant, bank manager, lawyer, etc for the board, why they ignore our by-laws, business law and simple principles of accounting. Accountability is number 1 principle in any business, unfortunately BWT is lacking it consistently.

On December 28, 2017 Shlivko sent her most incendiary email yet, this time writing to the group “MANY MANY [residents] SUFFERING EMOTIONAL AND MONETARY DISTRESS because of this board’s illegal actions.” And continued:

It needs to stop, they are not kings and queens here, they do many things that go against our by-laws and business law and pay condo lawyer with our money to cover for their bad deeds. They waste our money and later raise our common charges.

They do not account for anything, they deny us use of our community room, they do not let us get together and discuss current issues, they only allow us to listen to their BS.

They install many many cameras to watch us and listen to our conversations all thru out both buildings. They’ve created a horrible living environment and it well known in the neighborhood of Brighten Beach, Coney Island, Sheepshead Bay and beyond. Unfortunately it will lead to many people selling theirs apartments and Pavel buying it for a pennies-on-a-dollar with our money it will EVENTUALLY LEAD BWT TO A BANKRUPTCY.

On December 30, 2017, Shlivko wrote that “the board will fight tooth-and-[nail] for secrecy and full control, [doubt] very much that you or anybody will come near any detailed back up to their fake financials.”

On April 22, 2018, at approximately 3:40 p.m., a member of the Board, Joseph Meynekhdrun, encountered Shlivko in the Brightwater lobby as he was approaching the elevator.

Shlivko screamed at the Board member, “Why are you staring at me? You belong in jail! I will put you in prison! How could you do that?” Security camera footage from the incident showed Shlivko’s husband attempting to calm her to no avail.

Shlivko shouted so loudly that the security guard sitting some distance away was able to witness the incident. Another building resident who was also waiting for an elevator at the time observed Shlivko’s rant as well.

Shlivko moved to dismiss the complaint.

CPLR 3016 sets forth those actions which require particularity in pleadings. A cause of action for defamation must allege that the defendant published a false statement, without privilege or authorization to a third party, constituting fault as judged by, at a minimum, a negligence standard, and it must either cause special harm or constitute defamation per se. To constitute defamation per se, the alleged statements must (1) charge plaintiff with a serious crime; (2) tend to injure another in his or her trade, business or profession; (3) state that plaintiff has a loathsome disease; or (4) impute unchastity to a woman.

CPLR 3016 (a) pertains to causes of action for defamation, requiring that the particular words complained of must be set forth in the complaint. Furthermore, the complaint must also allege the time, place, and manner of the false statement and specify to whom it was made. Compliance with CPLR 3016(a) is strictly enforced. Thus, a cause of action sounding in defamation that fails to comply with those special pleading requirements must be dismissed.

Shlivko contended that the Board failed to satisfy the particularity requirements of CPLR 3016 (a) with regard to identifying to whom the alleged statements were made and the manner in which they were made. The complaint contained six alleged defamatory statements. The December 21st, 22nd, 25th, 28th, 30th were email communications. The complaint alleged that the December 21st statement was sent by Shlivko using her email address to BTWUnitOwners@googlegroups.com, an email list serve address which includes over 400 people. On the December 22nd, 25th, and 28th statements, the Board alleged that Shlivko sent emails either to “the same individuals” or “to the group.”

Under a CPLR 3211 (a) (7) motion analysis, including CPLR 3016, the Court must take the allegations as true and resolve all inferences which reasonably flow therefrom in favor of the pleader. Applying this analysis, statements that were made to “the same individuals” or “the group” refers to the BTWUnitOwners@googlegroups.com. The remaining statements on December 30th and Apri1 28th were sufficiently plead with particularity as the complaint specified the time, place, manner and to whom the statements were made.

Shlivko contended that the statements alleged in the complaint failed to state a cause of action for defamation.

Since falsity is a necessary element of a defamation cause of action and only facts are capable of being proven false, it follows that only statements alleging facts can properly be the subject of a defamation action. Consequently, a statement that is deemed a pure opinion is not actionable because expressions of opinion, as opposed to assertions of fact, are deemed privileged and, no matter how offensive, cannot be the subject of an action for defamation.

A “pure opinion” is categorized in one of two ways. It can be considered a statement of opinion that is accompanied by a recitation of the facts upon which it is based or in the alternative it may be an opinion not accompanied by such a factual recitation so long as it does not imply that it is based on undisclosed facts. Conversely, a “mixed opinion” is actionable, such an opinion is based upon facts that justify the opinion but are unknown to those reading or hearing it.

In order to evaluate whether a statement is an opinion or a fact, the Court considered the following factors: (1) whether the specific language had a precise meaning that was readily understood; (2) whether the statements were capable of being proven true or false; and (3) whether the context in which the statement appeared signaled to readers or listeners that the statement was likely to be opinion, not fact. The Court examined the context of the entire alleged communication and the circumstances in which they were written or spoken. The Court’s analysis was based on what the average person hearing or reading the communication would take it to mean.

In the complaint, the Board alleged that Shlivko made statements on six occasions that were defamatory in nature by accusing the Board of unethical and financial improprieties. The December 21st statement included key phrases, such as, “we need a major change” or “I guarantee”, a signal to the reader that it was an opinion rather than fact. Similarly, the April 22nd statement in which Shlivko was alleged to have stated, “you belong in jail,” was also pure opinion. The statement began with the phrase “why are you staring at me”, which cued the listener that a quarrel or disagreement would follow in which the listener would anticipate rhetoric or hyperbole.

The December 22nd and December 25th statements may have included some factual information. The December 22nd statement included information that only a Brightwater resident might know, such as “having no super” and “losing a playground.” However, whether or not people at Brightwater had sacrificed so much or have “sufficient cleaning staff” was a matter of opinion. Analyzing the statement as a whole, tested against the understanding of the average reader, the statement was not actionable and could not be made so by a strained or artificial construction. Similarly, the December 25th statement included some factual information that might be common to a resident of Brightwater such as “we chose accountant, bank manager, lawyer, etc. for the board.” Nevertheless under the opinion analysis the meaning of this statement was not readily understood. The phrase “accountability was the number 1 principle in any business” was an opinion.

Viewing the language of the statements on December 28th and 30th it was evident that no precise meaning could be attributed to those statements. The references could not be proven true or false. Furthermore, the average reader would view those statements to be a rant or a mere expression of dissatisfaction that was based in pure opinion.

After evaluating all the alleged defamatory statements in context, the Court found that they did not suggest to the reader or listener that Shlivko had authority or that the statements were based on facts. Thus, the statements were non actionable. And Shlivko’s motion to dismiss the cause of action for defamation was granted. The Board appealed.

The appellate court agreed that the Board failed to state a cause of action to recover damages for defamation. Some of the allegedly defamatory statements did not have a precise meaning, while others were hyperbolic and incapable of being proven true or false. The context of the statements was such that a reasonable reader would have concluded that he or she was reading an opinion, and not a fact, about the Board.

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