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Thomas H. (Anonymous v. Paul B. (Anonymous)

February 21, 2012

THOMAS H. (ANONYMOUS), APPELLANT,
v.
PAUL B. (ANONYMOUS), ET AL., RESPONDENTS.



The opinion of the court was delivered by: Graffeo, J.:

This opinion is uncorrected and subject to revision before publication in the New York Reports.

On this record, we hold that defendants are not entitled to summary judgment because they failed to establish as a matter of law that they did not defame plaintiff.

Plaintiff Thomas H. and his wife, Karen, are acquainted with defendants Paul and Nancy B. The couples were introduced by one of Karen's sisters and they occasionally spent time together at a residence in Vermont. Defendants' young son and daughter would join them on these excursions.

In early 2005, defendants' daughter revealed to her parents that plaintiff had raped and molested her at the Vermont residence in February 2002 and 2004, when she was 10 and 12 years old. After hearing about these incidents, Paul brought his daughter to speak with Vermont law enforcement officials and a police report was prepared. Plaintiff was never charged with a crime in connection with these allegations.

Defendants, along with Karen's two sisters, decided to notify Karen about her husband's alleged actions and inform her that defendants would soon be filing a civil suit against her husband. In February 2006, all four went to Karen's apartment in Manhattan to convey this information. What was said during this meeting is sharply disputed by the parties.

In his pretrial deposition, Paul could not remember what he specifically discussed with Karen but recalled that the conversation focused on his daughter's accusations against Karen's husband. He also could not confirm that he was the person who stated that plaintiff had "raped" the child, though he did admit to telling Karen that if he had a gun, he would have shot her husband.

Nancy testified that, although she did not tell Karen that her husband had raped the child, she thought that someone else made such a declaration at least once during the discussion. Another individual who was present could not remember the precise details of what occurred but testified that the general topic of discussion was that defendants' daughter had accused plaintiff of sexual abuse and molestation.

Contrary to defendants' version of the exchange, Karen claimed that as soon as she opened her door to the visitors, someone declared "It's Tom, it's Tom . . . He raped [the girl]." She indicated that it was Paul who stated that "Tom had raped [the girl] twice up in Vermont" and that Nancy had described the incidents to her as follows:

"That in 2002 [plaintiff] waited until everybody was asleep, snuck out of his bedroom, went into the bedroom where [the girl] was sleeping, picked her up, carried her back to his bedroom, tried to have sexual relations with [her] and couldn't because he couldn't maintain an erection, then stuck his finger in her vagina and then called her a bitch and threatened her and said don't tell anybody about this. . . . [a]nd then brought her back to her bedroom . . . .

"[I]n February 2004 . . . [plaintiff] got [the girl] and brought [her] back into his bedroom and this time had sexual intercourse with her and slammed her up against a wall and used profanities with her again and threatened her again and then brought her back into her bedroom."

According to Karen, these were Nancy's direct quotes and she understood that the statements made by defendants were based on their daughter's allegations. However, she did not believe that her husband had sexually assaulted the child.

Plaintiff adamantly denied that he had sexual contact with defendants' daughter and responded to these charges by commencing this action for defamation. The theory of the complaint is that, at the meeting and on "numerous occasions" thereafter, defendants falsely and maliciously stated that plaintiff had raped and molested defendants' daughter, and that the individuals who heard those statements believed that defendants "charge[d] plaintiff with the felony crimes of rape and child molestation." After depositions were conducted, defendants moved for summary judgment, contending that even if they made the statements that were attributed to them, those utterances were not actionable because they had truthfully relayed their daughter's accusations and merely expressed their belief in her veracity.

Supreme Court denied defendants' motion, finding triable issues of fact based on the conflicting testimony of the parties. The Appellate Division reversed and granted summary judgment to defendants. The court concluded that the "alleged statements constituted statements of opinion, and not of fact" (74 AD3d 1283, 1284 [2d Dept 2010]). We granted leave to appeal (15 NY3d 715 [2010]) and now reverse.

Making a false statement that tends to expose a person to public contempt, hatred, ridicule, aversion or disgrace constitutes defamation (see e.g. Geraci v Probst, 15 NY3d 336, 344 [2010]; Forster v Churchill, 87 NY2d 744, 751 [1996]). Generally, only statements of fact can be defamatory because statements of pure opinion cannot be proven untrue (see e.g. Brian v Richardson, 87 NY2d 46, 51 [1995]).*fn1 A verbal utterance that ...


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