Motion Sequence Numbers 001 and 003 are consolidated for disposition. In 001, defendants David Pullman (Pullman), Melanie Jones, and The Pullman Group, LLC (Pullman Group) move for summary judgment and for costs and attorney's fees on the ground that the action is frivolous.

In Motion 003, plaintiff Brian Pusch moves for partial summary judgment on liability on the first, second, and third causes of action for defamation and injurious falsehood against defendants Pullman, Pullman Group, and Jones.

Relevant facts underlying this action for defamation were set forth in numerous decisions in several related actions, including Pullman v Pusch (Index No. 100269/00); Pullman v 40 W. 67th St. et al. (Index No. 100270/00); Pullman v Indictor (100122/00); and 40 W. 67th St. v Pullman (296 AD2d 120 [1st Dept 2002], affd 100 NY2d 147 [2003]).

Briefly summarized, at the relevant time periods, plaintiff was a resident and shareholder of 40 W. 67th Street Corp., a New York corporation that owns the residential cooperative apartment building located at 40 West 67th Street, New York, New York. During this period, plaintiff was also the president of the building's co-op board, defendant Pullman was a shareholder and resident in the building, and defendant Pullman Group employed moving defendant Jones, as well as nonmoving defendants, Ted Chung, Tom Ghyczy, and Elaine Mallon.

Pullman commenced a number of lawsuits against the co-op board, and against his neighbors in the apartment directly above his, Norman and Rina Indictor. He alleged that the Indictors, an elderly couple, were interfering with his quiet enjoyment by operating a noisy and unlawful bookbinding business, and playing their television and stereo at excessively high volumes. He also alleged that Norman Indictor assaulted him, and his call to the police resulted in Indictor's arrest. Nevertheless, it was Pullman's reaction to his neighbors that resulted in the [*2]co-op terminating his tenancy in accordance with a provision in the lease that authorized it to do so based upon a tenant's "objectionable conduct." In 40 W. 67th St. v Pullman (100 NY2d 147, supra), the Court of Appeals held that the board's action was valid.

This defamation action is based upon Pullman's numerous complaints to, and demands upon, the co-op's board of directors and its managing agent, including complaints about the operation of the building and the alleged noise and unlawful business activity by his upstairs neighbors. Although Pullman's initial grievance was with the Indictors, subsequently, he blamed plaintiff, as president of the board, for allegedly failing to address his complaints.

Plaintiff alleges that Pullman defamed him in numerous writings that Pullman sent to other shareholders in the building. He also alleges that the complaints included numerous items of correspondence on the stationery of defendant Pullman Group. Aside from stating that Pullman Group employed the other defendants, the complaint does not contain any specific allegations as against them.

The complaint contains three causes of action. In the first cause of action, for defamation, plaintiff alleges as follows: On September 28, 1999, defendants published and circulated throughout the building a document entitled "Attack Crime" that included the following statement:

"I had notified in writing and complained to the Board and managing agent dozens of times about excessive and odd noises, nocturnal hours, running a business out of the apartment, a book-binding business in 8B, the Indictors, over the last six months which has fallen on deaf ears."

On October 6, 1999, defendants published and circulated another document to other residents in the building entitled "In response to the Board's self-serving letter of last week, Here are the facts." This document allegedly contained numerous defamatory statements about Pusch including:

(a) "Norman Indictor's next door neighbor and best friend is Brian Pusch, the Coop President, who for one year has covered for his best friend and refused to act."

(b)"Conflicts of interest which Brian Pusch never disclosed in the course of one year.

Brian Pusch is best friends with Norman Indictor.

Norman Indictor's wife and Brian Pusch's wife are also of intimate personal relations."

On February 16, 2000, defendants published to other residents in the building a document entitled "Dear Fellow Shareholders: RE: Agenda for February 16, 2000 Wednesday Meeting and Upcoming Board Elections." This document included the following statements:

(a)"Pusch's one-sided letters to this co-op are conflicts of interest (re: the relationship of Brian Pusch with his best friend Norman Indictor and Mrs. Pusch's close intimate personal relationship with Rina Indictor caused and continues to cause a conflict of interest which was undisclosed and created liability for themselves and this co-op)."

(b)"The building manager, General Property Management, Jeff Brown's cozy relationship with Pusch has compromised this building."

(c)"The building has lost and continues to lose staff on account of the Napoleonic Pusch, as the building owners I met door-to door referred to him. The police officers who met Pusch on one of their many visits to arrest Indictor advised me to go to court on Pusch's refusal to act as it is his buddy he is trying to protect."

(d)"The Board circulated a letter from Indictor's attorney stating the criminal case was dismissed. In fact, it was not, it was adjourned until May 2000. In fact the Court uses such tactics as a mini-probation period for a criminal such as Indictor. What unbiased board would distribute a criminal defense attorney's letter on behalf of their client as impartial? Did you ever meet a criminal defense attorney who didn't say his client didn't do it?"

(e)"The co-op is not covered by insurance for willful intentional breaches by the co-op board [*4]president nor its board. Therefore the co-op's liability is now greater than the reserve and may trigger a default on the building's mortgage . The bank is required to be notified of all such substantial litigation and liability. Protect your equity by deposing Pusch and the board and evicting Indictor."

Plaintiff alleges that statements contained in these documents, particularly

those that expressly state that he breached his duties to the co-op and its shareholders, had undisclosed conflicts of interest, is married to a woman who has an intimate relationship with another woman, created financial liability of the co-op, controls the board, caused or known about the failure of the co-op's managing agent to comply with its legal obligations, and shares similarities with a deceased French general were false and defamatory. Plaintiff alleges that defendants published these statements with malice and in reckless disregard for the truth.

In the second cause of action for injurious falsehood, plaintiff alleges that defendants' statements have made the building appear to be an undesirable place in which to live, and that this has diminished the value of his apartment. In addition, plaintiff, who is a practicing lawyer, alleges that he has been harmed in his reputation for the practice of law, because defendants' false statements have represented that he is person who has disregarded his legal obligations to the co-op.

In the third cause of action, also for defamation, plaintiff alleges that Pullman went "door to door knocking on doors or ringing doorbells of apartment in the building and speaking to shareholders and residents in the Building," seeking their support and signatures on his petition, included in the "Attack Crime" document, that sought to have Norman Indictor "permanently removed" from the building. Allegedly, he told them that plaintiff "owns two apartments in the building. That's illegal." Plaintiff denies ever owning two apartments in the building or shares of stock appurtenant to proprietary leases of two apartments in the building.

The moving defendants now seek summary judgment, dismissing the complaint, and plaintiff seeks summary judgment, as to liability only, on all three causes of action.

The motion by defendants Pullman, Jones, and Pullman Group for summary judgment, dismissing the complaint as against them, is granted. To the extent that any of the statements at issue might be defamatory, as discussed below, plaintiff is not the proper person to assert the claim. The statements about plaintiff are not defamatory. Defendants' additional request for an award of costs and attorney's fees is denied.

Plaintiff's motion for partial summary judgment is denied.

Whether the contested statements are reasonably susceptible of a defamatory connotation is, in the first instance, a legal determination for the court (Weiner v Doubleday & Co., 74 NY2d 586, 592 [1990], cert denied 495 US 930 [1990]). Plaintiff asserts that the statements at issue are actionable and defamatory per se, because they disparage him in his role as officer of the co-op, by imputing to him incompetence and unfitness. The court disagrees.

Defamation arises from the making of a false statement that tends to "expose the plaintiff to public contempt, ridicule, aversion, or disgrace, or induce an evil opinion of him in the minds of right-thinking persons, and to deprive him of their friendly intercourse in society" (Rinaldi v [*5]Holt, Rinehart & Winston, 42 NY2d 369, 379, rearg denied 42 NY2d 1015, cert denied 434 US 969 [1977]; Dillon v City of New York, 261 AD2d 34, 37-38 [1st Dept 1999]). The statements represent Pullman's opinion about the manner in which plaintiff acted as president of the co-op board, vis-a-vis Pullman's dispute with his upstairs neighbor, and the statements would not subject plaintiff to "public contempt, ridicule, aversion, or disgrace" or cause "right-thinking persons" to have an "evil opinion of him."

Plaintiff cites, as defamatory, statements that were meant to convey the belief that plaintiff controlled the board, as well as the co-op's managing agent, and that Pullman's complaints fell upon "deaf ears." Representative examples include the following: "Pusch's one-sided letters to this co-op are conflicts of interest," the "building manager, General Property Management, Jeff Brown's cozy relationship with Pusch has compromised this building," and "[t]he Board, which is controlled by Brian Pusch, showed a complete lack of sensitivity to the attack by Norman Indictor on a resident of the building." These constitute expressions of opinion that are cloaked with the absolute privilege of speech protected by the First Amendment (Jaszai v Christie's, 279 AD2d 186 [1st Dept 2001]).

The same is true for other alleged defamatory statements including: the "Board should allow a special committee of owners with no conflict of interest, not currently serving under Brian Pusch nor friends of the Indictors," the "Managing Agent is a puppet of Brian Pusch," and the "building has lost staff on account of the Napoleonic Pusch." Loose, figurative, or hyperbolic statements, even if deprecating plaintiff, are not actionable (Gross v New York Times, 82 NY2d 146 [1993]; Dillon v City of New York, 261 AD2d at 37).

Plaintiff argues that the statement that the "[t]he Managing agent and [t]he Board have created a substantial liability for the building and Coop for all the above," is not opinion, because it is capable of being proven true or false. Plaintiff does not state, however, whether he believes it to be true or false, but the court can infer that he considers it false. Yet, plaintiff himself concedes that it is difficult to sell apartments in the building because prospective purchasers are eventually made aware of the acrimonious events that transpired among the shareholders. Thus, according to this assertion by plaintiff it appears that the building has a type of liability that it might not otherwise have had, but for the conduct of some of the building's tenants. There is a difference of opinion, however, as to whether the fault lies with plaintiff and the board, on the one hand, or defendants, on the other hand. Most of the other alleged defamatory statements at least the ones directed at plaintiff do not have a precise meaning and are incapable of being objectively characterized as true or false. Hence, the listener is likely to conclude that what was being read or heard was probably opinion, not fact (Steinhilber v Alphonse, 68 NY2d 283 [1986]). To be sure, the statements about plaintiff may be "unfortunate, insensitive and vituperative," but they are nonactionable expressions of opinion (O'Loughlin v Patrolmen's Benevolent Assn. of the City of New York, 178 AD2d 117, 118 [1st Dept 1991]).

As to the claims concerning the alleged criminal conduct of Norman Indictor, as well as the relationship between plaintiff's wife and Ms. Indictor, to the extent that these statements could be construed as defamatory, then the claim belongs to them, not to plaintiff because they are not "of and concerning" plaintiff (Gross v Cantor, 270 NY 93, 96 [1936]; Chicherchia v Cleary, 207 AD2d 855, 856 [2st Dept 1994]). Although, arguably, statements about Indictor and plaintiff's wife "concern" plaintiff, they do not "reflect directly" upon plaintiff (Afftrex v General [*6]Elec. Co., 161 AD2d 855 [3d Dept 1990]). "Of and concerning" requires that the statements refer to plaintiff (Brady v Ottaway Newspapers, 84 AD2d 226, 228 [2d Dept 1981]). Moreover, although plaintiff argues that a listener would conclude that plaintiff is involved in the alleged "intimate relationship" between his wife and Ms. Indictor, because "[w]hy else would he be accused of being biased in favor of the Indictors," the court will not strain to find defamation where none exists (Cohn v National Broadcasting Co., 50 NY2d 885, cert denied 449 US 1022 [1980]; Dillon v City of New York, 261 AD2d at 37). Furthermore, the reliance upon Matherson v Marchello (100 AD2d 233 [1984]) for the proposition that plaintiff has a claim based upon this statement is unpersuasive because, in that action, both the husband and wife were parties.

Contrary to plaintiff's assertion, the statement that his "best friend" is Norman Indictor is also not defamatory, and it is not likely to cause someone to believe that plaintiff is dishonest. The statement does not imply that there were any undisclosed facts that would be unknown to the recipients of the communications about plaintiff's honesty (Pontos Renovation v Kitano Arms Corp., 226 AD2d 191 [1st Dept 1996]). Moreover, Pullman charged Indictor with being a noisy neighbor, who operated an unlawful bookbinding business, and both charges were never substantiated. The court has considered the other statements about plaintiff, not expressly discussed here, and find them to also not be defamatory.

Even if the statements were defamatory, however, they would be protected by a qualified privilege. When compelling public policy requires that the speaker be immune from suit, the law affords an absolute privilege, while statements fostering a lesser public interest are only conditionally privileged (Liberman v Gelstein, 80 NY2d 429, 435 [1992]). One such conditional or qualified privilege extends to a communication made by one person to another upon a subject in which both have an interest. Thus, a party has a right to communicate "defamatory" statements to others with a legitimate interest (id.).^[FN1]

Here, the allegedly defamatory statements were communicated to other tenants of the co-op, a group that, together with defendants, had a common interest in the subject matter of the communications (Kamerman v Kolt, 210 AD2d 454, 455 [2d Dept 1994]; Tanner & Gilbert v Verno, 92 AD2d 802 [1st Dept], appeal withdrawn 60 NY2d 822 [1983]). Without endorsing the content of Pullman's correspondence, the court recognizes that, unquestionably, it sought to address Pullman's concerns about matters that properly related to the co-op's business, operation, and management. Thus, they were accorded a qualified privilege (Dillon v City of New York, 261 AD2d at 40). The recipients of the correspondence had a genuine and legitimate interest in reading Pullman's opinion about issues pertaining to the quiet enjoyment to the building and plaintiff, in his role as co-op board president. Plaintiff had, at his disposal, an appropriate remedy responding directly to the tenants about his job performance as co-op board president (600 W. 115th St. v Von Gutfeld, 80 NY2d 130, 136, rearg denied 81 NY2d 759 [1992], cert [*7]denied 508 US 910 [1993]).^[FN2]

The shield provided by a qualified privilege may be dissolved if plaintiff can demonstrate that defendant was motivated by "actual malice" or "ill will" (Liberman v Gelstein, 80 NY2d at 437). Plaintiff has the burden of proof to establish that the communications were not made in good faith, and were motivated solely by malice (id., at 439; Kamerman v Kolt, 210 AD2d at 455). Plaintiff has not met his burden.

According to plaintiff, the statements that he "covered, refused to act and failed to act for a period of a year" indicates malice, because defendants knew the statements were not true. Pullman made the statements in October 1999, but the first oral complaint to plaintiff was not made until May or June 1999 (Memorandum in Opposition, dated January 21, 2003 [Memo. in Opp.], at 35). An inaccurate statement about the time period involved does not demonstrate malice.

Plaintiff also argues that he has established malice because the statements are "both sufficiently extravagant in their denunciation of plaintiff and vituperative in their character as to show malice by inference" (Memo. in Opp., at 39). Plaintiff's characterization of the statements at issue is exaggerated. A fair reading of their general tenor is that plaintiff was not properly performing his functions as co-op board president.

Plaintiff has failed to raise an issue of fact as to "constitutional malice," defined as a defamatory statement made while knowing that it is false or recklessly disregarding whether it is false, or "common law malice," defined as a showing that the defendant was solely motivated by a desire to injure plaintiff (Present v Avon Prods., 253 AD2d 183, 188-89 [1st Dept], lv dismissed 93 NY2d 1032 [1999]). Although the Court of Appeals stated, in this action, that "[u]pon investigation, the cooperative's Board determined that the couple did not possess a televison set or stereo and that there was no evidence of a bookbinding business or any other commercial enterprise in their apartment, " as discussed above, this would be relevant to claim by the Indictors, not by plaintiff.

In the cause of action for injurious falsehood, plaintiff alleges that defendants' statements have made the building appear to be an undesirable place in which to live and that, therefore, this has diminished the value of his apartment. Plaintiff also alleges that his reputation for honesty has been harmed, thereby adversely affecting him in his practice of law.

The tort of trade libel or injurious falsehood consists of the knowing publication of false matter derogatory to the plaintiff's business of a kind calculated to prevent others from dealing with the business or otherwise interfering with its relations with others, to its detriment (Waste Distillation Tech. v Blasland & Bouck Eng'g, P.C., 136 AD2d 633 [2d Dept 1988]). This claim fails for the reasons set forth above, in that the record does not establish that defendants [*8]knowingly published false information about plaintiff. Additionally, plaintiff failed to allege special damages with sufficient particularity (Rall v Hellman, 284 AD2d 113 [1st Dept 2001]).

As for the third cause action, alleging that Pullman told other shareholders in the building that plaintiff "owns two apartments in the building," and that such ownership was "illegal," the statement is not defamatory.

Finally, defendants' request for sanctions for frivolous litigation is denied. The request is surprising considering the number of related lawsuits in which Pullman was the plaintiff. Moreover, this action is not frivolous.

Accordingly, it is

ORDERED that the motion by defendant David Pullman, Melanie Jones, and The Pullman Group, is granted to extent of granting the moving defendants summary judgment, dismissing the complaint as against them, and is otherwise denied; and it is further

ORDERED that the motion by plaintiff Brian Pusch for summary judgment is denied; and it is further

ORDERED that the Clerk is directed to enter judgment accordingly.

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J.S.C.