The opinion of the court was delivered by: SHIRLEY WOHL KRAM
SHIRLEY WOHL KRAM, U.S.D.J.
This action for libel, tortious interference with employment and intentional infliction of emotional distress arises out of a letter written by a law firm to its client containing allegations that plaintiff Nicholas Coliniatis ("Coliniatis") was involved in an illegal kickback scheme. Presently before the Court is a motion by defendants Simos C. Dimas ("Dimas") and Dimas & Johnston (collectively, the "Dimas Defendants") to dismiss the First, Third and Fourth Causes of Action, pursuant to Federal Rule of Civil Procedure 12(b)(6), for failure to state a claim. For the reasons set forth below, the Dimas Defendants' motion is granted in part and denied in part.
In 1992, Olympic sold its leasehold interest in certain commercial office space, and purchased other real property in New York (the "Transaction"). The Dimas Defendants represented Olympic in the Transaction. Olympic also retained Nicholas Sfouggatakis ("Sfouggatakis"), a licensed real estate broker and certified public accountant, to provide tax advice in connection with the Transaction.
On September 16, 1992, Dimas wrote a letter to Loukas Grammatikos ("Grammatikos"), Olympic's Director General, informing him of allegations that Coliniatis was involved in a possible kickback scheme related to the Transaction (the "Letter").
The Letter stated, in relevant part:
I find myself professionally obligated to relay to you information of substantial but not absolute reliability suggesting a scheme to defraud Olympic of over $ 500,000 by one of its trusted agents. . . . It seems Mr. Coliniatis expected to receive a kick-back from all of the professional arrangements entered into between Mr. Sfouggatakis and Olympic. When I spoke to him, Mr. Sfouggatakis told me that Mr. Coliniatis had told him that as a condition for obtaining these arrangements with Olympic, Mr. Sfouggatakis would be required to pay Mr. Coliniatis the first $ 280,000 which Mr. Sfouggatakis received, and then to pay him 50% of all remaining money received. If this be true, Mr. Coliniatis was planning to obtain $ 500,000 back from Mr. Sfouggatakis. And if that be true, that number would be but the beginning of the scheme.
See the Letter, annexed to the Complaint as Exh. "A."
On October 3, 1992, defendant The National Herald (the "Herald"), a Greek language newspaper distributed in New York, published an article containing certain of the statements set forth in the Letter. Coliniatis subsequently was recalled to Greece and relieved of his duties as Olympic's Director of Operations for North and South America. As a result, on November 19, 1992, he brought this action for libel (First Cause of Action), tortious interference with employment (Third Cause of Action) and intentional infliction of emotional distress (Fourth Cause of Action) against the Dimas Defendants, and for libel (Second Cause of Action) against the Herald.
The Dimas Defendants now move, pursuant to Rule 12(b)(6), for an order dismissing the complaint on the grounds that it fails to state a claim upon which relief can be granted. It is well settled that, when passing on a motion to dismiss, the Court must accept the allegations of the complaint as true and construe them in favor of the pleader. Scheuer v. Rhodes, 416 U.S. 232, 236, 40 L. Ed. 2d 90, 94 S. Ct. 1683 (1974). A complaint should not be dismissed for failure to state a claim "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Goldman v. Belden, 754 F.2d 1059, 1065 (2d Cir. 1985) (citing Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957)).
With respect to the First Cause of Action for libel, the Dimas Defendants contend that the statements contained in the Letter are not actionable as they consist of opinion protected by constitutional law. The Court finds that Coliniatis's libel claim is subject to whatever protections the First Amendment of the United States Constitution and the New York Constitution provide.
See McNally v. Yarnall, 764 F. Supp. 838, 846 (S.D.N.Y. 1991); J & J Sheet Metal Works, Inc. v. Picarazzi, 793 F. Supp. 1104, 1108 (N.D.N.Y. 1992). Whether a statement constitutes fact or opinion is a matter of law, and thus may be resolved by the Court on a motion to dismiss. Trump v. Chicago Tribune Co., 616 F. Supp. 1434, 1435 (S.D.N.Y. 1985); see also Church of Scientology Int'l v. Eli Lilly & Co., 778 F. Supp. 661, 667 (S.D.N.Y. 1991) (quoting Davis v. Ross, 754 F.2d 80, 85 (2d Cir. 1985)). Accordingly, the Court will examine the federal and state constitutions in turn.
A. The United States Constitution
First Amendment-based protection for defamatory statements categorized as "opinion" stems from dicta set forth in Gertz v. Robert Welch, Inc., 418 U.S. 323, 41 L. Ed. 2d 789, 94 S. Ct. 2997 (1974) ("Gertz"). In Gertz, the Supreme Court stated:
Under the First Amendment there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas. But there is no constitutional value in false statements of fact.
Id. at 339-40. More recently, however, the Supreme Court has put to rest the perception that Gertz created a wholesale protection for all statements that are labeled "opinion." Milkovich v. Lorain Journal Co., 497 U.S. 1, 18, 111 L. Ed. 2d 1, 110 S. Ct. 2695 (1990) ("Milkovich"). Pursuant to Milkovich, a statement is actionable where it reasonably appears to state or imply assertions of objective fact, regardless of whether it is characterized as a fact or an opinion. Id. at 20; see also J & J Sheet Metal Works, Inc. v. Picarazzi, 793 F. Supp. at 1109. Statements of opinion on matters of public concern are protected under the First Amendment only where they do not contain a provably false factual connotation, or where they "cannot reasonably be interpreted as stating actual facts about an individual.'" Milkovich v. Lorain Journal Co., 497 U.S. at 20 (quoting Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 50, 99 L. Ed. 2d 41, 108 S. Ct. 876 (1988)); see also McNally v. Yarnall, 764 F. Supp. at 846; Don King Prods., Inc. v. Douglas, 742 F. Supp. 778, 782 (S.D.N.Y. 1990). Accordingly, in order to establish whether the Letter is an opinion protected from state libel law, the Court must determine whether the Letter (1) addresses matters of public concern; (2) is expressed in a manner that is provably true or false; and (3) can be reasonably interpreted as intended to convey actual facts about a person. McNally v. Yarnall, 764 F. Supp. at 847; Don King Prods., Inc. v. Douglas, 742 F. Supp. at 782. "The question must be answered on the basis of what the average person hearing or reading the communication would take it to mean." J & J Sheet Metal Works, Inc. v. Picarazzi, 793 F. Supp. at 1109.
The Court finds that the Letter is not an opinion under the First Amendment, and is therefore not exempt from state libel law. First, the Letter addresses an area of public concern, the possibility that Coliniatis was engaging in an illegal scheme to defraud Olympic, an arm of the government of Greece. Second, the truth or falsity of the statement that Coliniatis expected to receive a kick-back from all of the professional arrangements entered into between Sfouggatakis and Olympic can be factually verified. Third, the statements contained in the Letter are not "the sort of loose, figurative or hyperbolic language which would negate the impression that the writer [is] seriously maintaining" that plaintiff engaged in an illegal kickback scheme. See Milkovich v. Lorain Journal Co., 497 U.S. at 21; see also Church of Scientology Int'l v. Eli Lilly & Co., 778 F. Supp. at 668 ("Although subjective in tone, the commentary purports to be based on actual facts, and to be pointing out their implications, not to be making a personal prediction or hyperbolic characterization.").
Moreover, the fact that the Letter purports to merely relay information that Sfouggatakis told to Dimas does not convert the statements into a constitutionally-protected opinion. Rather, the Letter's reference to information that is of "substantial but not absolute reliability," and "plausible, but unproven" allegations implies that the charges are based on verifiable fact. Thus, to the extent that the Letter contains defamatory factual statements, these statements are not "opinions" shielded by the Constitution. Rather, plaintiff's libel claim is actionable if he can prove that the factual assertions contained in the Letter are actually false. J & J Sheet Metal Works, Inc. v. Picarazzi, 793 F. Supp. at 1109. As the parties have not yet engaged in discovery at this early stage of the action, the Court declines to examine whether Coliniatis has raised any triable issue of fact as to the falsity of the factual assertions contained in the Letter.
B. The New York State Constitution
The Court next examines New York constitutional law, keeping in mind that the "'protection afforded by the guarantees of free press and speech in the New York Constitution is often broader than the minimum required by' the Federal Constitution." Immuno AG. v. Moor-Jankowski, 77 N.Y.2d 235, 566 N.Y.S.2d 906, 914, 567 N.E.2d 1270 (1991) (quoting O'Neill v. Oakgrove Constr., Inc., 71 N.Y.2d 521, 529, n.3, 528 N.Y.S.2d 1, 523 N.E.2d 277 (1988)), cert. denied, 111 S. Ct. 2261 (1991). Under both federal and state law, a statement is actionable where a reasonable reader could conclude that the challenged statements convey actual facts about the plaintiff. 600 West 115th Street Corp. v. Von Gutfeld, 80 N.Y.2d 130, 589 N.Y.S.2d 825, 829, 603 N.E.2d 930 (1992), cert. denied, 124 L. Ed. 2d 252, 113 S. Ct. 2341 (1993). The New York Court of Appeals differs from the Supreme Court, however, in the applicable test to use in determining whether the challenged statements imply objective facts. Id. Thus, while federal law examines the challenged statements for express and implied factual assertions and finds them actionable unless couched in loose, figurative or hyperbolic language, the New York courts begin their analysis by looking at "the content of the whole communication, its tone and apparent purpose." Immuno AG. v. Moor-Jankowski, 566 N.Y.S.2d at 914.
New York has adopted the four-part test first developed in Ollman v. Evans, 242 U.S. App. D.C. 301, 750 F.2d 970 (D.C.Cir. 1984), cert. denied, 471 U.S. 1127, 86 L. Ed. 2d 278, 105 S. Ct. 2662 (1985), to differentiate between fact and opinion. See Steinhilber v. Alphonse, 68 N.Y.2d 283, 508 N.Y.S.2d 901, 905, 501 N.E.2d 550 (1986). Under the Ollman/Steinhilber test, the Court must (1) assess whether the specific language in issue has precise meaning which is readily understood or whether it is indefinite and ambiguous; (2) determine whether the statement is capable of being objectively characterized as true or false; (3) examine the full context of the communication in which the statement appears; and (4) consider the broader social context or setting surrounding the communication, including the existence of any applicable customs or conventions that might "'signal to readers or listeners that what is being read or heard is likely to be opinion, not fact.'" Id. (quoting Ollman v. Evans, 750 F.2d at 983).
The Court next examines the particular circumstances in which the Letter was drafted, as well as the broader social context of the communication. Reviewing these two factors, the Court finds that the Letter does not give the general impression that it is an opinion. Thus, the charge that Coliniatis was involved in an illegal kickback scheme "cannot be treated as a mere rhetorical flourish or the speculative accusation of an angry but ill-informed citizen made during the course of a heated debate." Id. at 819. Rather, the Letter gives the impression that it was written after lengthy ...