OPINION OF THE COURT
In this action to recover damages for defamation, we are asked to determine whether the applicable statute of limitations bars the consideration of certain allegedly defamatory statements posted on a publicly accessible Internet weblog — or "blog" — dedicated to the local community issues of Wawayanda, New York, located in Orange County, and on the local newspaper's website. We are also asked to determine, inter alia, whether the plaintiff was required to plead special damages regarding published accusations on these websites that he was responsible for dumping a severed horse head into the swimming pool at a residence belonging to a member of the Town Board of the Town of Wawayanda (hereinafter the Town Board).
For the reasons stated below, we disagree with the Supreme Court's determination that, absent a particularized allegation of special damages, the third cause of action was not actionable, but otherwise agree with its conclusions with respect to the first, second, and fourth causes of action. Accordingly, we modify the order appealed from.
Factual and Procedural Background
The defendant Wayne Skinner, a former Town Supervisor of the Town of Wawayanda, and his wife, the defendant Karen Skinner (hereinafter together the Skinner defendants), were involved in a number of Town policy disagreements with the plaintiff, David LeBlanc. Wayne Skinner was elected to his position as a Democrat. The plaintiff, a Wawayanda businessman, attended numerous Town Board meetings, voicing his concerns
Nonparty Gail Soro was one of Wayne Skinner's colleagues, and a Wawayanda Town Board member. Soro likewise was an elected Democrat. In July 2006, Soro discovered a severed horse head in her swimming pool. It was never determined who was responsible for the incident. Nonetheless, as could be expected after any incident with such cinematic bravado,
The plaintiff filed a summons and complaint on July 28, 2008, commencing this action against Michael Hawkins, also known as "wayguy," as well as against "John Doe (`johnny500')," and "John Doe (`wawayandafirst')," referencing the relevant blog profiles or monikers used by the individuals who posted the allegedly defamatory comments. Neither of the Skinner defendants was specifically identified by name in the original complaint. However, on September 18, 2008, Wayne Skinner was served with copies of the original summons and complaint as "John Doe (`johnny500')" and "John Doe (`wawayandafirst')."
On October 20, 2008, the plaintiff filed an amended verified complaint. The amended verified complaint specifically identified Wayne Skinner as a defendant, and added Karen Skinner as a defendant. Copies of a supplemental summons and the amended verified complaint were served upon Karen Skinner on October 28, 2008.
In the amended complaint, the plaintiff alleged that, with the assistance of Hawkins, the Skinner defendants posted several defamatory statements on the Internet regarding the plaintiff. More specifically, the first and second causes of action in the amended verified complaint alleged that Hawkins, at the request and direction of the Skinner defendants, posted two allegedly
Hawkins served a verified answer, asserting, inter alia, a cross claim against the Skinner defendants, in which he alleged that he was the "agent and servant of the Skinner Defendants who performed actions" at their "request and direction." The Skinner defendants together answered the complaint, asserting, inter alia, an affirmative defense based on the statute of limitations, and separately answered Hawkins's cross claim, denying the allegations thereof. Discovery ensued, including party depositions. At his deposition, Hawkins testified that the Skinner defendants were his aunt and uncle, and that they directed the creation and maintenance of the relevant blog profiles on the Wawayandafirst blogspot and the newspaper site. Hawkins also testified that the Skinner defendants controlled the subject matter of the postings, and that the Skinner defendants "shared access" to these created profiles. During their own respective depositions, the Skinner defendants disputed the allegations made by Hawkins, and contended that he acted of his own accord.
The plaintiff moved for summary judgment, among other things, on the complaint and dismissing the Skinner defendants' fourth affirmative defense, which asserted that the first and second causes of action were barred by the applicable one-year statute of limitations set forth in CPLR 215 (3). Hawkins opposed the motion. The Skinner defendants also opposed the motion, and cross-moved for summary judgment dismissing the complaint insofar as asserted against them, contending that all four causes of action insofar as asserted against them were
As relevant to the instant appeal, the Supreme Court, in an order dated January 28, 2011, determined that the third and fourth causes of action could not be sustained because the facts alleged therein did not constitute defamation per se, and the plaintiff failed to allege special damages with particularity. The plaintiff appeals from so much of the Supreme Court's order as granted those branches of the Skinner defendants' motion which were for summary judgment dismissing the third and fourth causes of action insofar as asserted against them.
The Supreme Court also denied those branches of the Skinner defendants' cross motion which were for summary judgment dismissing, as time-barred, the first and second causes of action insofar as asserted against them. The Supreme Court found that copies of the summons and complaint had been timely served upon Wayne Skinner, as he was served with copies of the initial summons and complaint within 120 days of its timely filing. With regard to Karen Skinner, the court noted that it was undisputed that the first and second causes of action had not been timely interposed against her, but agreed with the plaintiff that Karen Skinner might be held vicariously liable for the publication of the subject statements by Hawkins and, therefore, had a unity of interest with him that was sufficient to avoid dismissal of the causes of action against her. The Skinner defendants cross-appeal from so much of the Supreme Court's order as denied those branches of their motion which were for summary judgment dismissing, as time-barred, the first and second causes of action insofar as asserted against them.
Hawkins filed no brief with respect to the appeal or cross appeal.
The Statute of Limitations
The Skinner defendants contend that the Supreme Court erred in denying those branches of their motion which were for summary judgment dismissing, as time-barred, the first and second causes of action insofar as asserted against them.
The Skinner defendants also moved for summary judgment dismissing, as time-barred, the first and second causes of action insofar as asserted against Karen Skinner. Clearly, at the time that Karen Skinner was served with copies of the supplemental summons and amended complaint on October 28, 2008, the defamation claims set forth in the first and second causes of action, which were premised on statements posted on August 29, 2007, and October 6, 2007, were in fact time-barred (see CPLR 215 ). Karen Skinner thus met her burden of establishing, prima facie, that the statute of limitations had expired prior to the commencement of the action against her, at which point the burden shifted to the plaintiff to establish the applicability of the relation-back doctrine (see Xavier v RY Mgt. Co., Inc., 45 A.D.3d 677, 678 ).
Subsequent to the issuance of this Court's decision in Brock, the Court of Appeals held that a plaintiff's mistake need not be "excusable" for the relation-back doctrine to apply (see Buran v Coupal, 87 N.Y.2d 173, 178-182 ). In addition, whether parties are united in interest generally is a question of law, not a question of fact (see Connell v Hayden, 83 A.D.2d 30, 43 ). However, if the nature of the jural relationship between the defendants is disputed, then a question of fact is presented (see id. at 44).
In the instant matter, the key to the application of the relation-back doctrine is the determination of whether Karen Skinner is united in interest with an original defendant, so that, by reason of that relationship, she can be "charged with such notice of the institution of the action that [she] will not be prejudiced in maintaining [her] defense on the merits" (Brock v Bua, 83 AD2d at 69). Here, the plaintiff contends that Karen
Defendants are united in interest with one another only when their relationship with each other is such that their interest "in the subject-matter [of the action] is such that [the defendants] stand or fall together and that judgment against one will similarly affect the other" (Prudential Ins. Co. v Stone, 270 N.Y. 154, 159 ). "[T]he question of unity of interest is to be determined from an examination of (1) the jural relationship of the parties whose interests are said to be united and (2) the nature of the claim asserted against them by the plaintiff" (Connell v Hayden, 83 AD2d at 42-43). However, defendants are not united in interest if there is the mere possibility that the new party could have a different defense than the original party (id. at 42, citing Stevens v Young, 272 App Div 784, 785 ). Accordingly, joint tortfeasors are generally not united in interest, since they frequently have different defenses, in that one tortfeasor usually will seek to show that he or she is not at fault, but that it was the other tortfeasor who is liable (see Connell v Hayden, 83 AD2d at 45, citing Maguire v Yellow Taxicab Corp., 253 App Div 249, 251 , affd 278 N.Y. 576 ). However, joint tortfeasors will be deemed to be united in interest where one is vicariously liable for the other (see Connell v Hayden, 83 AD2d at 45), such as where one tortfeasor is the agent of the other.
Accordingly, the parties are united in interest where there is a jural or legal relationship giving rise to potential vicarious liability. "Underlying the doctrine of vicarious liability ... is the notion of control. The person in a position to exercise some general authority or control over the wrongdoer must do so or bear the consequences" (Kavanaugh v Nussbaum, 71 N.Y.2d 535, 546 ). Agency is a jural relationship between a principal and an agent, "which results from the manifestation of consent of one person to allow another to act on his or her behalf and subject to his or her control, and consent by the other so to act" (Maurillo v Park Slope U-Haul, 194 A.D.2d 142, 146 ). While here, the Skinner defendants and Hawkins are related, as Hawkins is the Skinner defendants' nephew, it is not any such intrafamilial relationship that gives rise to a purported agency relationship (see Struebel v Fladd, 75 A.D.3d 1164, 1166 ; Maurillo v Park Slope U-Haul, 194 AD2d at 146). However, the fact that Hawkins is related to the Skinner defendants does not ipso facto defeat the possibility of an agency relationship, as
Here, the plaintiff adduced sufficient facts which clearly raise a triable issue as to whether Hawkins was acting as an agent on behalf of the Skinner defendants. In his sworn testimony and averments, Hawkins explained that he "would post comments verbatim from Wayne or Karen Skinner" and that they asked him to post messages under the various pseudonyms set forth above. While Hawkins did "not recall posting the alleged defamatory statements," he did not specifically deny posting them. Such an equivocal averment does not resolve the factual discrepancy as to whether Hawkins posted the alleged defamatory statements, and did so at the Skinner defendants' request.
In a case such as this, where the jural relationship alleged is that of principal and agent, "unity of interest does not turn upon whether the actual wrongdoer or the person or entity sought to be charged vicariously was served first" (Matter of Parker v Port Auth. of N.Y. & N.J., 113 A.D.2d 763, 769  [internal quotation marks omitted]; see Connell v Hayden, 83 A.D.2d 30 ). At trial, the plaintiff may be required to establish his right to recovery against Karen Skinner, or perhaps both of the Skinner defendants, upon a theory of vicarious liability and, thus, will be obligated to prove that the wrongdoing which forms the basis of the action was committed within the scope of the Skinner defendants' "business." The defendants will likely continue to point fingers at each other, and the Skinner defendants will likely continue to deny that they are vicariously liable for any action taken by Hawkins. However, a defense that Hawkins's alleged conduct in posting the subject statements exceeded the scope of his alleged agency relationship with the Skinner defendants does not go to the merits of the plaintiff's defamation claims. Instead, it is a defense which "puts the jural relationship itself at issue," and "the law defers its determination to the trial at which time the defendant asserting it will be discharged by the substantive defense rather than by the Statute of Limitations" (Matter of Parker v Port Auth. of N.Y. & N.J., 113 AD2d at 769 [citation and internal quotation marks omitted]).
On this summary judgment motion, we view the evidence in the light most favorable to the plaintiff, as the nonmoving party,
Applying these principles here, we conclude that a triable issue of fact exists as to whether the first and second causes of action in the amended complaint "related back" to the date of the timely filing of the original complaint against Hawkins (see CPLR 203 [c]; 215 ; see also Mondello v New York Blood Ctr. — Greater N.Y. Blood Program, 80 N.Y.2d 219 ; Lancaster v Town of E. Hampton, 54 A.D.3d 906 ; Brock v Bua, 83 A.D.2d 61 ; Assad v City of New York, 238 A.D.2d 456, 457 ; Sargent v City of New York, 128 A.D.2d 693 ).
Accordingly, the Supreme Court properly denied those branches of the Skinner defendants' motion which were for summary judgment dismissing, as time-barred, the first and second causes of action insofar as asserted against them.
Defamation Per Se
In each of the four causes of action, the plaintiff contended that the "[d]efendants libeled Plaintiff and committed an act of defamation per se." The Supreme Court concluded that the defendants' alleged conduct, as described in the third and fourth causes of action, did not constitute defamation per se and, thus, that the plaintiff's failure to plead special damages with particularity required dismissal of those causes of action. The Supreme Court further concluded that certain epithets used to describe the plaintiff, as set forth in the fourth cause of action, were mere opinion and, hence, not actionable. The plaintiff appeals from that portion of the Supreme Court's order which granted those branches of the Skinner defendants' motion which were for summary judgment dismissing the third and fourth causes of action insofar as asserted against them, based on the plaintiff's failure to plead special damages with particularity or
Contrary to the plaintiff's contention, the Supreme Court properly granted that branch of the Skinner defendants' motion which was for summary judgment dismissing the fourth cause of action insofar as asserted against them. In the fourth cause of action, the plaintiff alleged that the defendants posted two separate comments on the newspaper site on the same date. The first comment was that "Dave LeBlanc is a terrorist." The second comment asked, rhetorically, "[w]ho was the one who threw the horse head in Gail's pool? ... check it out: ... wawayandafirstblogspot.com."
Internet forums are venues where citizens may participate and be heard in free debate involving civic concerns. It may be said that such forums are the newest form of the town meeting. We recognize that, although they are engaging in debate, persons posting to these sites assume aliases that conceal their identities or "blog profiles." Nonetheless, falsity remains a necessary element in a defamation claim and, accordingly, "only statements alleging facts can properly be the subject of a defamation action" (600 W. 115th St. Corp. v Von Gutfeld, 80 N.Y.2d 130, 139 , cert denied 508 U.S. 910; see Gross v New York Times Co., 82 N.Y.2d 146, 153 ). Within this ambit, the Supreme Court correctly determined that the accusation on the newspaper site that the plaintiff was a "terrorist" was not actionable. Such a statement was likely to be perceived as "rhetorical hyperbole, a vigorous epithet" (Greenbelt Cooperative Publishing Assn., Inc. v Bresler, 398 U.S. 6, 14 ; see Milkovich v Lorain Journal Co., 497 U.S. 1 ; Immuno AG. v Moor-Jankowski, 77 N.Y.2d 235, 254 , cert denied 500 U.S. 954 ). This conclusion is especially apt in the digital age, where it has been commented that readers give less credence to allegedly defamatory Internet communications than they would to statements made in other milieus (see Sandals Resorts Intl. Ltd. v Google, Inc., 86 A.D.3d 32, 43-44 , quoting Jennifer O'Brien, Note, Putting a Face to a [Screen] Name: The First Amendment Implications of Compelling ISPS to Reveal the Identities of Anonymous Internet Speakers in Online Defamation Cases, 70 Fordham L Rev 2745, 2774-2775 ). Accordingly, we conclude that this statement constituted an expression of opinion, and, as such, is nonactionable.
Turning to the other posting described in the fourth cause of action, it is not clear on the face of the posting whom the poster
However, the Supreme Court erred in granting that branch of the Skinner defendants' motion which was for summary judgment dismissing the third cause of action insofar as asserted against them. While a plaintiff alleging defamation generally must plead and prove that he or she has sustained special damages (see Rufeh v Schwartz, 50 A.D.3d 1002, 1003 ; Liberman v Gelstein, 80 N.Y.2d 429, 434-435 ), any written article is "actionable without alleging special damages if it 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" (Sydney v MacFadden Newspaper Publ. Corp., 242 N.Y. 208, 211-212 ; see Rinaldi v Holt, Rinehart & Winston, 42 N.Y.2d 369, 379 , cert denied 434 U.S. 969 ; Donati v Queens Ledger Newspaper Group, 240 A.D.2d 696 ). Our society has long recognized that when statements fall within one of these established categories of per se defamation, "the law presumes that damages will result, and they need not be alleged or proven" (Liberman v Gelstein, 80 N.Y.2d 429, 435 ). Indeed, important social values underlie the law of defamation, as "[s]ociety has a pervasive and strong interest in preventing and redressing attacks upon reputation" (Rosenblatt v Baer, 383 U.S. 75, 86 ). The published allegation that the plaintiff put a severed horse head in a Town Board member's swimming pool constituted defamation per se under this standard and, therefore, did not require the plaintiff to plead special damages (see Donati v Queens Ledger Newspaper Group, 240 A.D.2d 696 ). Moreover, the accusation that the plaintiff placed a horse head in a political rival's pool, if true, describes conduct that would constitute serious crimes. A false published allegation that a person committed a serious crime is also a ground for asserting a cause of action to recover damages for defamation per se (see Geraci v Probst, 15 N.Y.3d 336, 344
Accordingly, the order is modified, on the law, by deleting the provision thereof granting that branch of the motion of the defendants Wayne Skinner and Karen Skinner which was for summary judgment dismissing the third cause of action insofar as asserted against them, and substituting therefor a provision denying that branch of the motion; as so modified, the order is affirmed insofar as appealed and cross-appealed from.
Ordered that the order is modified, on the law, by deleting the provision thereof granting that branch of the motion of the defendants Wayne Skinner and Karen Skinner which was for summary judgment dismissing the third cause of action insofar as asserted against them, and substituting therefor a provision denying that branch of the motion; as so modified, the order is affirmed insofar as appealed and cross-appealed from, without costs or disbursements.