OPINION OF THE COURT
This action for libel arises out of an article published on August 22, 2003 in the Westmore News, an independent newspaper serving the Town of Rye. The newspaper's founder, defendant Bernard Abel, wrote the article as part of his regularly featured column called "The Town Crier." The column is located on the opinion page of the newspaper and is identified by an editor's note that it represents the opinion of the author and "not necessarily that of this newspaper."
The article at issue, entitled "Borrelli on par with Marie Antoinette" (referring to Rye Town Councilman Mike Borrelli), was written by Abel during a heated local election for control of
Following publication, Mann commenced this action against defendants Abel and Westmore News, Inc., alleging that the statements contained in the article were false and published with actual malice. Before engaging in discovery, defendants moved to dismiss the complaint, contending that the action was filed in bad faith to chill the exercise of protected free speech and that the suit was frivolous. Supreme Court denied the motion and the Appellate Division affirmed without addressing defendants' constitutional claim. Thereafter, Mann moved for summary judgment on the complaint. Defendants opposed the motion and cross-moved for summary judgment asserting that the article contained only expressions of opinion by Abel. Supreme Court denied both motions on the ground that there were disputed issues of fact, and did not address whether the article constituted protected opinion. The parties were directed to proceed to trial.
At the conclusion of the trial, the jury found that the statements in the article were defamatory and that defendant Westmore News had published the statements either with the knowledge that they were false or in reckless disregard of their truth or falsity. The jury awarded Mann $75,000 in compensatory damages against Westmore News and punitive damages against both Westmore News and Abel in the amount of $15,000 each. Defendants appealed, arguing that the statements were constitutionally protected opinion. The Appellate Division upheld the jury's determination that Mann was defamed, and concluded that he was entitled to compensatory damages, albeit at a reduced amount. The court dismissed the punitive damages awards and ordered a new trial unless Mann stipulated to a reduction in the compensatory damages award, which he did, leaving in place only the reduced award against Westmore News. Defendants then appealed as of right on the basis of a substantial
Whether a particular statement constitutes an opinion or an objective fact is a question of law (see Rinaldi v Holt, Rinehart & Winston, 42 N.Y.2d 369, 381 , cert denied 434 U.S. 969 ). Expressions of opinion, as opposed to assertions of fact, are deemed privileged and, no matter how offensive, cannot be the subject of an action for defamation (see Weiner v Doubleday & Co., 74 N.Y.2d 586, 593 , cert denied 495 U.S. 930 , citing Steinhilber v Alphonse, 68 N.Y.2d 283 ). Distinguishing between opinion and fact has "proved a difficult task," but this Court, in furtherance of that endeavor, has set out the following factors to be considered:
In Immuno AG. v Moor-Jankowski (77 N.Y.2d 235 ), we declined to adopt an analysis that would require courts first to search the article for particular factual statements and then to hold such statements actionable unless couched in figurative or hyperbolic language (id. at 254). Rather, we held that "courts must consider the content of the communication as a whole, as well as its tone and apparent purpose" and in particular "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 statements were conveying facts about the libel plaintiff'" (Brian, 87 NY2d at 51, quoting Immuno, 77 NY2d at 254).
Applying that test to the facts of this case, we hold that, when viewed within the context of the article as a whole, a reasonable reader would conclude that the statements at issue were opinion. Although not dispositive, we note that the column was
Accordingly, the order of the Appellate Division insofar as appealed should be reversed with costs, and the complaint dismissed in its entirety.
Order, insofar as appealed from, reversed, etc.