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).
Applying these four factors, the Court finds that the statements contained in the Letter, "although couched in the language of hypothesis or conclusion, actually would be understood by the reasonable reader as assertions of fact." Gross v. New York Times Co., 82 N.Y.2d 146, 603 N.Y.S.2d 813, 818, 623 N.E.2d 1163 (1993).
The Letter charges Coliniatis with criminal behavior in precise language that is both readily understandable and verifiable. Thus, the first two factors of the Ollman/Steinhilber test are met.
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 deliberation. Accordingly, the Letter's verbal context suggests to the reader that the statements were intended to be understood as assertions of fact.
An examination of the broader social context in which the Letter was written leads the Court to the same conclusion. The statements contained in the Letter were made in the context of an attorney-client relationship in which the attorney sought to relay sensitive information of importance to his client, presumably because of his professional obligation to do so. Under these circumstances, the Court finds that a reasonable reader would believe that the Letter was conveying facts about the plaintiff.
The Dimas Defendants contend that the Letter is not actionable as it merely reports Sfouggatakis's allegations and opines that the allegations are of sufficiently serious nature to require further investigation. Thus, the Dimas Defendants contend that the writing is a "pure opinion," as it is accompanied by a recitation of the facts upon which it is based. See Steinhilber v. Alphonse, 508 N.Y.S.2d at 903; see also Gross v. New York Times Co., 603 N.Y.S.2d at 818. It is true that opinions are protected where the facts supporting them are fully and accurately set forth in sufficient detail for the reader to draw his own conclusions concerning the opinion's validity. Silsdorf v. Levine, 59 N.Y.2d 8, 462 N.Y.S.2d 822, 825, 449 N.E.2d 716 (1983), cert. denied, 464 U.S. 831, 78 L. Ed. 2d 111, 104 S. Ct. 109 (1983); see also Gross v. New York Times Co., 603 N.Y.S.2d at 818. Where the facts themselves are false, however,
plaintiff may be able to establish entitlement to recover damages for the defamatory opinions, assuming, of course, that he is able to demonstrate the falsity of the letter's statements of fact and convince the triers of fact that the factual disparities would affect the conclusions drawn by the average reader regarding the validity of the opinions expressed.