VERSACI v. RICHIE

Mercure, J.P.

Plaintiff is an attorney who represented another party in litigation that also involved defendant. Thereafter, defendant posted a message on www.SchenectadyNY.info, a public forum Web site, in which she referred to plaintiff as a "so called attorney." Citing that phrase, plaintiff commenced this action asserting a cause of action for defamation. Supreme Court ruled that the comment published by defendant was nonactionable "personal opinion and rhetorical hyperbole," and dismissed the amended complaint. Plaintiff appeals.

A claim in defamation must rest upon an assertion of fact that is capable of being proven false; a defamation cause of action cannot be premised upon the assertion of an opinion (see Brian v Richardson, 87 N.Y.2d 46, 51 [1995]; Hassig v FitzRandolph, 8 A.D.3d 930, 931 [2004]). Whether a statement is an assertion of fact or opinion is an inquiry to be resolved by the court (see Gross v New York Times Co., 82 N.Y.2d 146, 153 [1993]), which must consider the context and content of the communication as a whole, including its tone and apparent purpose (see Brian v Richardson, supra at 51; Gilliam v Richard M. Greenspan, P.C., 17 A.D.3d 634, 635 [2005]; Cancer Action NY v St. Lawrence County Newspapers Corp., 12 A.D.3d 880, 881 [2004], lv denied 4 N.Y.3d 705 [2005]; Hassig v FitzRandolph, supra at 931-932). Here, the isolated phrase "so called attorney" of which plaintiff complains was asserted on an Internet public message board, which, as characterized even by plaintiff, is a forum where people air concerns about any matter. The particular message posted by defendant was a rambling commentary about litigation relating to home improvements performed by plaintiff's client in which defendant used the word "REAL" to refer to a secretary, an attorney, a judge and a court. In reference to plaintiff and an apparent incident with a pipe, defendant stated, "[s]omeone tell Scoobies [sic] so called attorney there is a smoking law in New York State." Clearly, no reasonable reader of defendant's statement would construe this phrase to be a false assertion that plaintiff was not, in fact, an attorney (see Gilliam v Richard M. Greenspan, P.C., supra at 635; Trustco Bank of N.Y. v Capital Newspaper Div. of Hearst Corp., 213 A.D.2d 940, 942 [1995]; Beinin v Berk, 88 A.D.2d 884 [1982], affd on mem below 58 N.Y.2d 660 [1982]). Supreme Court properly construed defendant's statement as opinion, and correctly dismissed the amended complaint.

Ordered that the order is affirmed, without costs.