[*1]
Leifer v Berkowitz
2005 NY Slip Op 50133(U)
Decided on January 11, 2005
Civil Court, New York County
Engoron, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on January 11, 2005
Civil Court, New York County


Meyer Leifer, Plaintiff,

against

Barry Berkowitz, Defendant.




72 TSN 03

Arthur F. Engoron, J.

Summary

In this action plaintiff Meyer Leifer alleges that defendant Barry Berkowitz slandered him at a meeting of the temple congregation of which plaintiff was the Rabbi and defendant the President. Defendant is entitled to summary judgment for two independent reasons: the statements at issue were expressions of opinion or were hyperbole; and the statements were protected by a qualified privilege, and plaintiff has not presented legally cognizable evidence of malice to overcome that privilege.

Background

For purposes of the instant motion only, and giving plaintiff the benefit of every inference and doubt, the Court finds the following to be the factual background of this case:

In 1958 plaintiff became the Rabbi of Emunath Israel Synagogue ("Emunath"), 236 West 23rd [*2]Street, New York, NY. Plaintiff "conducted Friday night and Saturday services, as well as service[s] on all holidays, and the daily morning and evening services." Aff. in Opp. of Elaine Levitt (President of the Sisterhood of Emunath) ¶ 5. Plaintiff "taught classes in Hebrew and Torah a minimum of twice weekly. These classes were announced to the congregation during services. Indeed, often the defendant himself would announce them." Plaintiff's Aff. ¶ 4. Ms. Levitt confirms that plaintiff "conducted evening classes as well as Sabbath afternoon classes . . . ." Levitt Aff. ¶ 9. Emunath bestowed the "Crown of Torah" award on plaintiff. Plaintiff's Aff. ¶ 4.

In February 1999 plaintiff and Emunath agreed that plaintiff's tenure would end on December 31, 2000. Nevertheless, near the end of 2000 plaintiff became aware "that the continued success and survival of Emunath required [his] continued assistance" and he "desired to stay on as Rabbi for another year." Plaintiff's Aff. ¶ 6. However, in October 2000 plaintiff "became aware of a concerted opposition both to my employment and to me personally being waged by [defendant]." Id. ¶ 8.

A compromise was proposed pursuant to which plaintiff's tenure would be extended for six months, rather than a year, and it would terminate thereafter whenever any member of the congregation requested that it do so. Levitt Aff. ¶ 13. Defendant agreed to these terms and said that he would promote and endorse the compromise at the congregation's November 5, 2000 membership meeting. Id. ¶ 14. Just prior to the meeting defendant signed a draft of the compromise and gave it to plaintiff. Id. ¶ 15.

Present at the meeting were many members who "had never attended a membership meeting before"; certain people whom plaintiff, despite having attended almost every meeting for forty years, "did not recognize as members"; and many of defendant's friends and relatives. Plaintiff's Aff. ¶ 13. As was customary, plaintiff was asked to leave the room prior to a discussion of whether to extend his contract. At that point, "[i]n an angry hostile voice, screaming at the top of his lungs, red in the face and full of rage" (Levitt Aff. ¶ 19), defendant made the following statements:

(a) Plaintiff was not responsible for his actions.

(b) Plaintiff could not be trusted.

(c) Plaintiff was never around, other than coming in for the morning and evening minions.

(d) Plaintiff was not there to offer spiritual solace to defendant when defendant needed it.

(e) Emunath actually did not have a rabbi in residence.

(f) Emunath was dying as a result of plaintiff's problems.

(g) Plaintiff did not teach any classes, as he had said that he would.

(h) Plaintiff did not tend to the spiritual needs of the congregation.

(i) Plaintiff was not responsible for bringing the Mahitzah into the congregation.

(j) Plaintiff's failure to teach required Emunath to pay others to teach in his stead.

(k) Plaintiff did not bring in new membership. [*3]

All of these statements about plaintiff were "untrue." Plaintiff's Aff. ¶ 15. Defendant's statements and/or his "stacking" of the meeting caused the members to vote against extending plaintiff's contract. Id.

Plaintiff thereafter commenced the instant defamation action.

Discussion

As noted above, defendant is entitled to summary judgment for two independent reasons: the statements at issue were expressions of opinion or were hyperbole; and the statements were protected by a qualified privilege, and plaintiff has not presented legally cognizable evidence of malice to overcome that privilege.

Opinion

In Brian v Richardson, 87 NY2d 46 (1995), the Court of Appeals opined about "opinion" as follows:

The essence of the tort of libel is the publication of a statement about an individual that is both false and defamatory. Since falsity is a sine qua non of a libel claim and since only assertions of fact are capable of being proven false, we have consistently held that a libel action cannot be maintained unless it is premised on published assertions of fact.
Distinguishing between assertions of fact and nonactionable expressions of opinion has often proved a difficult task. The factors to be considered are: "(1) whether the specific language in issue has a precise meaning which is readily understood; (2) whether the statements are capable of being proven true or false; and (3) whether either the full context of the communication in which the statement appears or the broader social context and surrounding circumstances are such as to ' "signal * * * readers or listeners that what is being read or heard is likely to be opinion, not fact" ' ".


Id. at 50-51 (citations omitted). The Brian court looked to Immuno AG. v Moor-Jankowski, 77 NY2d 235, cert denied 500 US 954 (1991), for an explication of "the context factor."
In that case, we rejected an analysis that would first search a publication for specific factual assertions and then hold those assertions actionable unless they were couched in figurative or hyperbolic language. Instead, we held that, in distinguishing between actionable factual assertions and nonactionable opinion, the courts must consider the content of the communication as a whole, as well as its tone and apparent purpose. Rather than sifting through a communication for the purpose of isolating and identifying assertions of fact, the court should look to the over-all context in which the assertions were made and determine on that basis "whether the reasonable reader would have believed that the challenged [*4]statements were conveying facts about the libel plaintiff".


Brian, supra, 87 NY2d at 51 (citations omitted). In the instant matter, the context was, in essence, a town meeting, and the purpose was to sway the voters, not to provide objective information. Cf. 600 West 115th St. Corp. v Von Gutfeld, 80 NY2d 130 (1992) (holding that allegations of illegality, fraud, bribery, and corruption made at local New York City Community Board meeting were non-actionable opinion). Furthermore, as in Brian, defendant "was not a disinterested observer." 87 NY2d at 53.

Moreover, as noted in Brian, Immuno, and 600, as well as Old Dominion Branch No. 496, Nat. Ass'n of Letter Carriers, AFL-CIO v Austin, 418 US 264, 285-86 (1974), "hyperbole" is not actionable.

Here, every statement is either "opinion," such as that plaintiff "could not be trusted," and "did not tend to the spiritual needs of the congregation," or "hyperbole," such as "[Emunath] did not have a rabbi in residence" (which it obviously did) and "plaintiff did not bring in new membership" (which plaintiff must have done in his 40 years as rabbi). Some statements were based on figures of speech, such as "not responsible" and "never around" and "was dying." The statement that plaintiff did not teach any classes was easily recognizable as hyperbole because, as plaintiff notes, defendant frequently announced plaintiff's teaching schedule to the congregation.

Plaintiff seeks to rely on the rule set forth in the Restatement (Second) of Torts § 566 that "A defamatory communication may consist of a statement in the form of an opinion, but a statement of this nature is actionable only if it implies the allegation of undisclosed defamatory facts as the basis for the opinion." See generally, Stienhilber v Alphonse, 68 NY2d 283, 290 at n. 3 (1986) (holding that statement that plaintiff "lack[ed] . . . talent, ambition, and initiative" was opinion). Taken in context, the membership could not have regarded defendant's statements as anything other than, essentially, a campaign speech intended to sway the members' votes, not as secret code for specific bad acts. For instance, the congregation could not have thought that the statement that plaintiff could not be trusted meant that defendant had information that plaintiff was a thief, or that the statement that plaintiff was not responsible for his actions meant that defendant had information that plaintiff suffered from schizophrenia. Indeed, the statements that plaintiff was "never around" and that Emunath "did not have a rabbi," when said in conjunction with an acknowledgment that plaintiff was present for morning and evening minions, clearly conveyed that defendant's statements were hyperbole and not based on objective, undisclosed fact.

Privilege

In Toker v Pollak, 44 NY2d 211 (1978), the Court of Appeals explained the type of statements entitled to a qualified (as opposed to absolute) privilege:
In contrast, communications protected by a qualified privilege do not provide the communicant with an immunity against the imposition of liability in a defamation [*5]action. A qualified privilege does, however, negate any presumption of implied malice flowing from a defamatory statement, and places the burden of proof on this issue upon the plaintiff. A communication is said to be qualifiedly privileged where it "is fairly made by a person in the discharge of some public or private duty, legal or moral, or in the conduct of his own affairs, in a matter where his interest is concerned."


Id. at 219 (quoting John W. Lovell Co. v Houghton, 116 NY 520, 526 (1889) (citations omitted).

More recently, in Liberman v Gelstein, 80 NY2d 429 (1992) (Kaye, Acting C.J.) (dismissing slander action based on allegations of bribery), the Court of Appeals described the qualified "common interest" privilege doctrine as follows:
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." This "common interest" privilege (see, Restatement § 596) has been applied, for example, to employees of an organization, members of a faculty tenure committee and constituent physicians of a health insurance plan. The rationale for applying the privilege in these circumstances is that so long as the privilege is not abused, the flow of information between persons sharing a common interest should not be impeded.


Id. at 437 (emphasis added) (citations omitted). Here, defendant and the membership shared a spiritual and pecuniary interest in whether or not plaintiff's contract would be extended. Thus, defendant's statements, just prior to the vote, about plaintiff's job performance are protected by a qualified privilege.

Of course, "[t]he shield provided by a qualified privilege may be dissolved if plaintiff can demonstrate that defendant spoke with "malice." Liberman, supra, 80 NY2d at 437. Interestingly,
malice has now assumed a dual meaning, and . . . the constitutional as well as the common-law standard will suffice to defeat a conditional privilege.
Under the [New York Times Co. v Sullivan (376 US 254)] malice standard, the plaintiff must demonstrate that the "statements [were] made with [a] high degree of awareness of their probable falsity". In other words, there "must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of [the] publication" . . . .

* * *

[U]nder the common-law definition [of malice,] . . . spite or ill will refers not to defendant's general feelings about plaintiff, but to the speaker's motivation for making the defamatory statements. If the defendant's statements were made to further the interest protected by the privilege, it matters not that defendant also despised plaintiff. Thus, a triable issue is raised only if a jury could reasonably [*6]conclude that "malice was the one and only cause for the publication".


Id., at 438-39 (citations omitted).

Here, constitutional malice is not an issue, because defendant's statements were either opinion or hyperbole, and, thus, defendant could not have been aware of their "probable falsity." Common law malice is not an issue, because all of the statements at issue bore upon whether or not the congregation should have continued plaintiff's employment; thus, they "further[ed] the interest protected by the privilege." None of defendant's alleged statements could be construed as a purely personal attack, completely outside Emunath's boundaries.

In Sborgi v Green, 281 AD2d 230, 230 (1st Dept 2001), the court affirmed the dismissal of a case brought against a bishop who was the "ecclesiastical leader of [plaintiff's] congregation, when, in connection with [plaintiff's] employment application with a university run by the Church, [defendant] told a university official whose duties included evaluations of job applicants that plaintiff is an 'unstable person' and that 'her children are disturbed.'" The court noted that "neither falsity nor the existence of prior earlier disputes between the parties permits an inference of malice . . . ." Id. Here, even assuming some personal animosity of the sort not uncommon between people who perceive that they have divergent interests, the statements themselves do not bespeak malice, and as defendant wanted the congregation to vote against extending plaintiff's contract, they could not have been motivated solely by malice.

Conclusion

Defendant's unceremonious ouster of plaintiff may have been heavy-handed, unfair and unwise. Plaintiff performed admirable work helping the congregation's homeless neighbors, and his long tenure at Emunath serves as a testament to his dedication and success.

However, courts are loathe to second guess or meddle in the affairs of private organizations. This is especially so in the case of religious institutions, which have a heightened level of constitutional protection against interference by the state. Allowing the instant action to proceed would have a chilling effect on persons seeking to become actively involved in charitable, religious, and/or community organizations. The marketplace of ideas requires some leeway in what is said. Ingratitude and hardball campaigning should not expose one to liability (or legal fees), and courts should not allow defamation actions to be used as end-runs around litigation to overturn disputed decisions by self-governing entities.

Thus, for the reasons set forth above, defendant's motion for summary judgment is granted, and the clerk is hereby directed to enter judgment dismissing the instant action.

Dated: January 11, 2005 [*7]

Arthur F. Engoron, J.C.C.